BY KELLEY BEAUCAR VLAHOS
APRIL 01, 2010 ISSUE
Courtesy Of THE AMERICAN CONSERVATIVE
But here were two clean-cut Catholic guys who claim they are inspired by the perspicacity of the Founding Fathers and a rule of law stronger than any post-9/11 race to rid the world of Islamist evildoers. They say their current case has as much to do with the rights of American citizens as it does with one long-term resident of Guantanamo Bay.
Army Major Todd Pierce, a Judge Advocate General reservist, and Michel Paradis, a civilian lawyer, serve on a team for the Defense Counsel of the Court of Military Commission Review. They are helping to build the appeal for Ali Hamza al-Bahlul, an al-Qaeda media man and Osama bin Laden’s personal secretary, who was convicted by a military tribunal in 2008.
His work as a propagandist—and, these attorneys suspect, his loutish behavior at trial: waving a poem praising the 9/11 attacks didn’t help his cause—landed al-Bahlul the heaviest sentence of the three men successfully prosecuted under the Military Commissions Act to date. Still, they believe his conviction violated the First Amendment.
Come again?
These lawyers couldn’t have picked a more repellent client. Not only is al-Bahlul a noncitizen, he admits to joining al-Qaeda, swearing allegiance to bin Laden, and writing speeches for the terror mastermind. He allegedly bunked with eventual 9/11 hijackers and reportedly provided a radio receiver to bin Laden to listen to the aftermath of 9/11 via satellite. During his trial, he played with a paper airplane. He vows to continue the fight.
This appears to be an open-and-shut case, but defense attorneys point out that prosecutors could never tie al-Bahlul—who was captured and first indicted in 2004—to a single violent act against coalition forces. Nevertheless, he was charged with conspiracy, material support for terrorism, and solicitation to commit murder.
Defense attorneys have zeroed in on the solicitation charge, saying it hinged on a single recruitment video al-Bahlul produced, “State of the Ummah.” They argue that it was never proved that the video was anything more than an abomination to its American viewers, at least the ones who were brought in to testify during al-Bahlul’s sentencing. The prosecution offered no evidence that the video called for, or resulted in, a specific act of murder.
“There is little doubt that Mr. Al-Bahlul is not a sympathetic defendant,” read the written appeal, filed with the Military Commission Review last September. The solicitation charge, however, “conflates offensive behavior with criminal behavior. As offensive as it may be, State of the Ummah is speech that falls within the core protections of the First Amendment.”
If this isn’t acknowledged, the defense claims, the U.S. government could very well round up any foreigner in the Global War on Terror—for the battlefield is indeed global—and prosecute him for things he has said, written, or produced. If it stands, the appeal states, the conviction of al-Bahlul on solicitation charges could even pave the way for domestic politicians to start suing foreign journalists for libel. It would create a “chilling effect” on Americans’ access to foreign information, including political propaganda, which is currently protected by lower court rulings.
Al-Bahlul’s film “provides a valuable window into the anxieties and grievances of a substantial number of Muslims inside and outside the United States,” the defense wrote. Critics tell TAC that censoring the propaganda’s creator makes the U.S. government no better than China, deciding for its people what they can read on the Internet. (“State of the Ummah” is, however, still available via YouTube.)
In effect, the First Amendment not only protects al-Bahlul’s speech but Americans’ access to it. According to the defense, “At a minimum [open access to the video] invites public condemnation and a reaffirmation of the core values it ostensibly seeks to undermine. … The courts must abide by the First Amendment, in particular, because its protection of speech is not simply, or even primarily, for the benefit of the defendant. It is for society at large.”
Pierce said every American should put al-Bahlul’s ugliness aside and concentrate on the implications of his case: “[This] is a conservative issue. It’s about speech and not having ‘preferred speakers’ and the government not having a monopoly on speech.” Pressing on, he suggests that citizens take special note of what happens here: if the rule of law breaks down for noncitizens, what is to stop an ambitious Congress and “a few revisions in the law” from prosecuting unsavory speech by American activists alleged by military courts to be soliciting terrorism? U.S. citizens can already be detained under the Military Commissions Act as un-lawful enemy combatants if the government suspects they have aided the Taliban or al-Qaeda.
It is the speech, not the speaker, that is at issue here. The defense is not claiming that nonresident aliens have constitutional rights per se, but that the First Amendment—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech”—prevents the government from prosecuting speech in a congressionally authorized court of law on U.S. territory, even from unlawful enemy combatants like al-Bahlul.
“If you have been detained in U.S. territory for nine years, brought into a U.S. court and prosecuted—for the government to say we can prosecute him under our laws but at the same time say he does not have the rights given to us by those laws. … you cannot have it both ways. If you are going to invoke the moral authority of the U.S., you cannot pick and choose,” Paradis says. He notes that he and Pierce speak for themselves, not for al-Bahlul, who continues to boycott his military counsel. The defense team is thus “assisting” the jailed Yemeni’s case, but not officially representing him in public.
This makes the lawyers’ personal efforts even more extraordinary. Al-Bahlul was initially charged with a single count of conspiracy before the original military commission instituted by the Bush administration in 2002. He requested self-representation, and the judge at the time obliged. After the Supreme Court deemed the Bush commissions illegal, and Congress passed a new Military Commission Act in 2006, at his second trial al-Bahlul was indicted on fresh charges, and the new judge rejected his request to represent himself, compelling him to accept military counsel.
But his appointed attorney, Air Force Maj. David Frakt, honored his client’s request and sat mute during the trial. Frakt has since spoken publicly in al-Bahlul’s defense and has been highly critical of the MCA, going so far as to question whether conspiracy and material support for terrorism are even viable war crimes.
Meanwhile, Pierce took leave of his family and professional life in Minnesota to come to Washington last year to volunteer on the appeal. The appeals are automatic, so defense lawyers need not be so earnest. But to people like Pierce, this goes beyond al-Bahlul: “I see the Military Commissions Act [undermining] the authority of the Constitution.”
The defense team has informally engaged Bruce Fein, a lawyer, constitutional scholar, and former Reagan administration justice official who has had a series of breaks with Republicans in recent years, calling for the impeachment of President George W. Bush over the domestic wiretapping program and Bush’s 750 signing statements.
“I love this country and the rule of law, and I hate to see it destroyed for nothing,” Fein told TAC, noting that al-Bahlul “didn’t kill anybody, he made a video.” He said he supports the First Amendment approach in al-Bahlul’s case and may get involved in a “more formal way” should it advance. If the appeal under the Court of Military Commissions Review fails, it will move to the D.C. Circuit Court of Appeals. From there, lawyers hope to take it all the way to the Supreme Court.
Fein said at the heart of the First Amendment defense is the 30-year-old Brandenburg v. Ohio decision, in which the Supreme Court ruled that the state could not prohibit inflammatory speech unless it incites or produces “imminent lawlessness.” While “State of the Ummah” features gruesome footage of Israeli violence against Muslims in the Palestinian territories and children ostensibly hurt by U.S. sanctions on Iraq, juxtaposed with rotund Saudi princes and lengthy dissertations by bin Laden, the defense argues that it does not rise to the level of inciting a specific action like an attack or riot. Rather, it constitutes the more “general advocacy” of jihad, political speech the Supreme Court says the First Amendment protects, like it or not.
“There has to be an imminent likelihood that there will be violence. Where is the evidence that anyone acted on this video to go out and kill an American?” asks Fein, who suggests the government is hurting its ability to fight terrorism through such prosecutions. “Our greatest strength is the rule of law. Applying the rule of law even-handedly will dry up the recruits [or terrorism].”
Not surprisingly, the prosecution is unimpressed with this line of reasoning. After oral arguments in early February, Navy Capt. Edward White said, “Our position was that, as an enemy combatant waging war against the United States from abroad, [al-Bahlul] does not have First Amendment rights. He crossed the line into criminality, soliciting other people—inducing, enticing, encouraging, persuading them—to commit war crimes.” Calls to the Office of Military Commission for further comment went unreturned.
Scott Silliman, professor and director of the Center on Law, Ethics, and National Security at Duke University, toldTAC that he, too, considers the First Amendment argument weak. “[The Constitution] does not protect everyone in the world,” he says. He points out that members of the U.S. military are limited in speech everyday. In fact, soldier Marc Hall was jailed in December for recording a rap song criticizing stop-loss. The military deemed his song a “communications threat.”
Silliman doesn’t agree that if al-Bahlul’s conviction stands, the military could begin targeting foreign journalists or anyone picked up on the global battlefield espousing offensive speech: “I would argue that the First Amendment does not extend to a nonresident alien, period.”
But this wouldn’t the first time constitutional rights were afforded to nonresidents. In 2008, the Supreme Court ruled 5-4 that in creating the MCA in 2006, Congress had illegally suspended habeas corpus for noncitizen detainees. Writing for the majority, Justice Anthony Kennedy said that the president and Congress do not have “the power to switch the constitution on or off at will.”
Meanwhile, critics like British writer Andy Worthington, who wrote “The Guantanamo Files” and, if you believe the defense’s admonitions, could be detained someday for his sustained written and verbal attacks on U.S. detention policies, say there is growing evidence that the government is already considering a certain kind of speech “militant activity.”
“What’s kind of been submerged here is these recidivism charges coming out,” Worthington tells TAC. “It’s worth examining.”As early as 2007, the Pentagon was not only counting ex-prisoners caught with guns and IEDs in its running total of so-called recidivists, but those with pens and video cameras, too. According to one of its own press releases listing “former Guantanamo detainees who have returned to the fight,” the government cited among those taking part in “anti-coalition activities” three UK-based Muslims who produced a film about their experiences in prison at Gitmo and another former detainee who wrote a critical op-ed for the New York Timesfrom his new home in Albania.
Worthington commends the free-speech challenge as laudable, but acknowledges it will be a difficult case to make in a military court. “I have to say it is an ingenious argument, but I’m not entirely sure they will get anywhere with it. It remains to be seen.” 
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Kelley Beaucar Vlahos is a reporter in the Washington, D.C. area.
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