US appeals court reverses convictions of man who promoted jihad after 9/11

In the days after 9/11, he encouraged the men he had gathered around him to travel to Pakistan to join Lashkar-e-Taiba. Three of the men did so, though they never entered Afghanistan.

By Andrew Bernard, JNS

The U.S. Court of Appeals for the Fourth Circuit decided to quash the convictions of a man who encouraged his followers to engage in jihad after the Sept. 11 attacks.

The three-judge panel concluded unanimously on Friday that Ali al-Timimi’s 2005 conviction on 10 counts related to aiding the Taliban and “soliciting others to levy war against the United States” should be thrown out on First Amendment grounds.

“Al-Timimi did not help anyone to commit crimes,” the judges wrote of his aiding-and-abetting convictions.

“To be sure, he encouraged them. But the most that he did to further the commission of these crimes was to advise individuals, in quite general terms, on how to react to the Sept. 11 attacks: Leave the United States, ‘join the mujahideen’ and fight India or Russia or the United States.”

The judges wrote that his remaining convictions “rest not on criminal conduct carried out through speech, but on the substance of, and perceived threat posed by, the mere ideas expressed.”

“To permit those convictions to stand would be to endorse a system in which speech may be punished simply because it alarms, offends or challenges prevailing norms,” they said.

In 2005, a federal jury convicted al-Timimi on all counts after he encouraged his followers at a mosque in Falls Church, Va., to join the Pakistani Lashkar-e-Taiba. Those convictions included a life sentence.

The appeals court noted that al-Timimi was not a cleric but “was viewed as a respected elder and a person knowledgeable about Islam” who lectured at the mosque.

In the days after 9/11, he encouraged the men he had gathered around him to travel to Pakistan to join Lashkar-e-Taiba. Three of the men did so, though they never entered Afghanistan.

The Fourth Circuit panel, all of whom were appointed under former President Barack Obama, decided that al-Tamimi’s advocacy for jihad and encouragement to join a specific group fell short of the “imminent lawless action” standard the U.S. Supreme Court established as the threshold for inciting violence in Brandenburg v. Ohio.

“Al-Timimi specified no time frame in which these actions should be completed and no details as to how they should be carried out,” the court wrote.

“He did not suggest where in Pakistan the men should go, or which Lashkar-e-Taiba camp they should attend. He urged the men broadly to engage in jihad against any of three different nations—India, Russia or the United States.”

“Because these exhortations were vague and general, they fall short of advocating the imminent lawlessness contemplated by Brandenburg,” it added.

Al-Timimi has been under house-arrest since 2020 as a result of the Covid-19 pandemic. The circuit court vacated his convictions and ordered him remanded to district court for acquittal.

Prosecutors could seek to appeal the decision before the full Fourth Circuit or the Supreme Court.