Government Forced to Rethink Terrorism Prosecution

by TChris

The government's terrorism prosecution of Saudi graduate student Sami Omar Al-Hussayen (TalkLeft background here and here) has run into a snag. The government accuses Hussayen of supporting terrorism by maintaining websites. Judge Edward Lodge ruled today, however, that the government can't show the web pages to the jury unless it first introduces evidence that Hussayen either created the pages or embraced their content -- something the government wasn't prepared to do at this stage of the trial.

Although the government promised to prove later in the trial that Hussayen created the pages and endorsed their content, the judge wisely ruled that it would be impossible to unring the bell after the jury saw the web pages. He gave the government until Tuesday to reshuffle its witnesses so that any proof of Hussayen's involvement in the content of the pages -- if any such proof exists -- can be presented before the jury sees the web pages.

The defense contends that Hussayen helped maintain the sites but wasn't responsible for their content. Not only does the government want to hold Hussayen responsible for providing "expert assistance" to terrorists, it contends that his alleged role as a moderator of an email discussion group should land him in prison.

The government also asked to show jurors inflammatory messages posted by others on an e-mail discussion group that Al-Hussayen belonged to and where he was designated as a moderator. As moderator, prosecutors argued, Al-Hussayen had the ability to control the e-mail content provided to group members but failed to prohibit messages promoting terrorism. The judge noted that witnesses indicated there could have been hundreds of moderators and that Al-Hussayen's involvement was relatively limited.

Given the growing number of European voices calling for jihad (and thanks so much for making us all safer, Mr. President), it might be difficult for a moderator to keep up with all the angry emails that could be construed as "promoting terrorism." But should a moderator really have that duty? For those who think that the web is all about free speech, this prosecution tells a cautionary tale: John Ashcroft's Justice Department thinks that failing to censor the speech of others that might be viewed as "promoting terrorism" can be a crime.

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