New Threats, Old Problems: Adhering to Brandenburg's Imminence Requirement in Terrorism Prosecutions

Abstract

Of late, several Muslim citizens in the Virginia and DC area were convicted of conspiring to commit terrorist acts against the United States. In these and other similar cases, the government appears to have changed its approach to prosecuting terrorism from one of crime solving (by finding and convicting after the fact) to one of prevention (by finding and convicting before the alleged act occurs). Most recently, Ali Al-Timimi was sentenced to life in prison because he told a group of Muslim men to go to Afghanistan and fight with terrorist forces following the attacks of September 11. Federal prosecutors alleged that Al-Timimi had incited his listeners to engage in unlawful acts against the United States, and that because he had encouraged the men to train with terrorist forces, he was responsible for their crimes. In order to prosecute Al-Timimi's speech, the government must satisfy the Supreme Court's Brandenburg v. Ohio test by proving that the expression was directed to inciting or producing imminent lawless action and was likely to incite or produce such action. In Al-Timimi's case, however, the important requirement of imminence was not met. The men to whom Al-Timimi spoke did not arrive at terrorist training camps until weeks later, demonstrating that Al-Timimi's speech was not immediate enough to pass the Brandenburg standard. Al-Timimi's case is therefore troubling as precedent, because it indicates that the government may circumvent the imminence requirement of Brandenburg in the context of domestic terrorism prosecutions. This Note argues that it is essential to adhere to Brandenburg's imminence requirement. This Note demonstrates that Al-Timimi's speech was not imminent under the Supreme Court's jurisprudence, and discusses the reasons why a Muslim imam's speech must not be prosecuted unless it passes the Brandenburg test. The Note also discusses the larger implications for failing to adhere to the imminence requirement in the war on terror. A strict defense of Brandenburg's temporal element is essential because will protect the American public from speech that escalates the threat of domestic terrorist activity while guarding speech that deserves to compete in the marketplace of ideas.