The issue of "Incitement": from Haymarket to Sarah Palin

I'm working on a law review article on the issue of incitement. This issue has come to the forefront of debate because of Al-Alawaki's alleged influence on the Fort Hood shooter and a number of recent wannabe terrorists, as well as Sarah Palin's "Don't retreat... reload" message and the gunsights on COngresswoman Giffords and others. I presented a rough draft of my paper to university colleagues, one of whom commented,"You are trying to draw a hard line in the water." He kindly allowed me to borrow this phrase to include in my title. Here are excerpts from the draft article as it stands now. Your comments are welcomed:

Hard Lines in the Water: Incitement from Haymarket to Sarah Palin*
By James Ottavio Castagnera**
I. Introduction
In 1859, John Stuart Mill observed, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.” 1
In the century and a half since this was written, American law has struggled to draw a distinction between speech that is protected by the First Amendment of the U.S. Constitution and speech which constitutes what is commonly called the crime of incitement.
This article considers the question across a range of difficult cases, beginning with the Haymarket Riot of 1887 to the recent flurry over the possible impact of Sarah Palin’s “targeting” of Congresswoman Giffords on her would-be-assassin’s act.

II. The Anarchists, 1848 – 1914 and the Haymarket Riot (1887)
Between 1894 and 1914, self-proclaimed “anarchists” succeeded in assassinating six Western heads of state:
1. President Carnot of France, 1894
2. Premier Carnovas of Spain, 1897
3. Empress Elizabeth of Austria, 1898
4. King Humbert of Italy, 1900
5. President McKinley of the U.S., 1901
6. Premier Canalejas of Spain, 19122
“Their deaths were the gestures of desperate or deluded men to call attention to the Anarchist idea…. The Idea was [the] hero…. It had its theorists ad thinkers, men of intellect, sincere and earnest, who loved humanity. It also had its tools, the little men whom misfortune or despair or the anger, degradation and hopelessness of poverty made susceptible to the Idea…. These became the assassins.”3
The most salient feature of the Anarchist movement for our purposes is this: “Between the two groups there was no contact.”4 Although the phrase was decades away from being coined, the Anarchist movement is a classic example of “Leaderless Resistance.”
“Leaderless Resistance”
“Leaderless resistance (or phantom cell structure) is a political resistance strategy in which small, independent groups (covert cells) challenge an established adversary such as a government. Leaderless resistance can encompass anything from non-violent disruption and civil disobedience to bombings, assassinations and other violent agitation. Leaderless cells lack bidirectional, vertical command links and operate without hierarchal command.” 5
The term "Leaderless Resistance" was popularized by the white supremacist Louis Beam, who published an essay on Leaderless Resistance in 1983 and again in 1992. Beam advocated Leaderless Resistance as a technique for fighting an incumbent government using self-organizing clandestine cells; he attributed the strategy to Col. Ulius Loius Amoss, allegedly a U.S. intelligence officer who was fearful that Communists were about to seize control of the U.S. in the early 1960s.
In his essay, Beam argued that traditional liberation armies employing pyramid-style organization are "extremely dangerous for the participants when it is utilized in a resistance movement against state tyranny":
"Especially is this so in technologically advanced societies where electronic surveillance can often penetrate the structure revealing its chain of command. Experience has revealed over and over again that anti-state, political organizations utilizing this method of command and control are easy prey for government infiltration, entrapment, and destruction of the personnel involved. This has been seen repeatedly in the United States where pro-government infiltrators or agent provocateurs weasel their way into patriotic groups and destroy them from within."
A more workable approach, argued Beam, is to convince like-minded individuals to form independent cells that will commit acts of sabotage or terrorism without coordination from above, and while minimizing communication with other cells:
"The so-called "phantom cell" mode of organization, developed by Col. Amoss, or Leaderless Resistance, is based upon the cell organization but does not have any central control or direction. In the Leaderless Resistance concept, cells operate independently of each other, but they do not report to a central headquarters or top chief, as do the communist cells ...
[P]articipants in a program of Leaderless Resistance through phantom cell organization must know exactly what they are doing and how to do it. This is by no means as impractical as it appears, because it is certainly true that in any movement, all persons involved have the same general outlook, are acquainted with the same philosophy, and generally react to given situations in similar ways. As the entire purpose of Leaderless Resistance is to defeat the enemy by whatever means possible, all members of phantom cells will tend to react to objective events in the same way, usually through tactics of resistance and sabotage."
Despite exhorting the adoption of a resistance without a leader, it is likely that Beam was advocating Leaderless Resistance in an attempt to cement his position as a leader and thinker in the white separatist movement. Indeed, Leaderless Resistance is taken by some to be a technique of splitting an organization into an above-ground wing that primarily deals in propaganda, and an underground wing that actually carries out terrorist attacks.6

Anarchism was a perfect candidate for “Leaderless Resistance,” given that its proponents and adherents assuaged all organizing efforts and organized movements, even the kindred philosophy of Socialism.
Roots and Cycles of Anarchism
Anarchism’s formative years followed Europe’s revolutionary year of 1848. Its intellectual parents were Pierre Proudhon of France7 and Michael Bakunin.8 The Paris Commune of 1871 seemed momentarily to promise the Utopia predicted by these two theorists of Anarchy. However, the commune flamed brightly and was doused. According to Bakunin, “We reckoned without the masses who did not want to be roused to passion for their own freedom. This passion being absent what good did it do us to have been right theoretically? We were powerless.”9
The assassination of Czar Alexander II, who ironically had liberated Russia’s serfs, in 1881 and the furious repression that followed effectively squelched the Anarchist movement for nearly a decade in Europe.10
In America, the 1880s were shaken by an incident of similar significance. The 1886 Haymarket Riot in Chicago was climaxed by a dynamite bomb that killed eight policemen. The Anarchist daily newspaper Die Arbeiter-Zeitung had previously screamed, “A pound of dynamite is worth a bushel of bullets.”11 Though no one every knew who threw the bomb, the paper’s editor, August Spies, and seven other Anarchists were arrested, tried, convicted of murder and sentenced to die. Spies responded to the sentence, “Let the world know that in 1886 in the state of Illinois eight men were sentenced to death because they believed in a better future!”12
The convictions were appealed all the way up the judicial ladder to the U.S. Supreme Court, where the defendants sought a Writ of Error, contending that they had been denied the privilege of a trial by an impartial jury in violation of the Constitution’s 14th Amendment. Reviewing the voir dire of several challenged jurors in some detail, the high court brushed aside this contention, along with others involving search & seizure and self-incrimination. The court’s opinion, penned by Chief Justice Waite,
“Being of opinion, therefore, that the federal questions presented by the counsel for the petitioners, and which they say they desire to argue, are not involved in the determination of the case as it appears on the face of the record, we deny the writ. Petition for writ of error is dismissed.”13
Of greatest interest here is the fact that the defendants’ attorneys grounded their appeal on the Fourth, Fifth and Sixth Amendments, as applied to the states via the 14th.14 The First Amendment apparently played no part in the appeal. Three of the condemned had their sentences commuted to life in prison, one committed suicide in his cell, and the remaining four were hanged.
Since the bomb thrower was never identified, how was it that the First Amendment’s free speech, free association and free press rights failed to shield the defendants from criminal liability for the Haymarket deaths, despite the fact that only three of them were even actually present when the bomb exploded? The website of the Clerk of the Cook County (IL) Circuit Court, where the case was tried, explains, “Judge Joseph E. Gary firmly held that the defendants had caused the bombing by speaking and writing their ideas publicly. He appointed bailiff Henry L. Ryce to select a jury which was hardly impartial. One juror was even related to a bomb victim. Defense objections by attorney Captain William P. Black were denied, and the trial commenced June 21. No defendants ever were connected to the bomb or to the numerous weapons displayed in open court by states attorney Julius Grinnell. Yet on August 20 the jury found all eight men guilty and set the death penalty for seven (Neebe received a prison sentence). Receiving the case on appeal, the Illinois Supreme Court in September 1887 admitted that the trial had not been fair but still upheld the guilty verdict.”15
The Illinois Supreme Court grounded its affirmation of the convictions on the legal principle, “Any act done by party to conspiracy, in furtherance of and naturally flowing from common design, is act of each and all of conspirators, (1) even though conspirator who did act cannot be identified; or (2) though defendant may have been absent; or (3) though act charged may not have been arranged for; or (4) was unauthorized in point of time, place, occasion, or instruments; or (5) was not anticipated, if conspirators either did or ought to have anticipated result, although they did not contemplate means.”16
To apply this rule to the defendants, the court first found, “The evidence against the defendants showed that, for a number of years, there had existed in Chicago a branch of a society variously known as the ‘International Association of Workingmen;’ the ‘International Arbeiter Association;’ the ‘International,’ or the ‘I. A. A.’ The platform of this society advocated the destruction of the existing social order, with its laws and institutions; and the common division of property. It charged that the government, the law, the schools, the churches, and the press were in the pay and under the control of the capitalists, who would never concede the laborers' demands unless compelled by force. It advocated a conflict of a violent, revolutionary character, and urged the laborers to organize and arm for the purpose of rebellion.”17
The newspapers, speeches, and pamphlets produced by the defendants were not forms of protected speech or press in the justices’ eyes. Rather, they were the causal nexus between the defendants’ mens rea (guilty minds) and the Haymarket murders. “During 1838-86 the defendants were unceasing in their dissemination of revolutionary literature. They persistently advised the workingmen to arm themselves for a conflict with the capitalists, police, and militia. They gave the most complete instructions for the manufacture and use of pernicious and destructive weapons. They were proved to have been in possession of specimens of the weapons themselves. They manufactured and experimented with explosives. They advocated through the press and by speech, in public and in private, the doctrines which they held, and the methods by which they proposed to carry them into effect.”18
Though it would be another three decades before Justice Oliver Wendell Holmes would famously echo John Stuart Mill, when he wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force,”19 this is the essence of the Illinois Supreme Court’s view. While the court acknowledged, but failed to remedy, irregularities in the trial of the case, and appropriately might have been taken to task for this (though, as we’ve seen, the U.S. Supreme Court declined to do so), its opinion appears to be on solid legal ground where the causal nexus is concerned. The Haymarket convictions --- at least in this author’s view --- represent an early instance of when the shield of “Leaderless Resistance” was stripped away and the advocates of violent action were held responsible for the deaths which, quite foreseeably, resulted… as they undeniably desired.

***

IV. The Global War on Terror, 2001-2010 and the Al-Alwaki Case (2010)
The 9/11 attacks, as everyone knows, were swiftly answered by the Bush Administration, which promptly invaded Afghanistan and soon had Al Qaeda and its Taliban hosts on the run. The administration and the military have come under criticism for failing to kill or capture Osama bin Laden and his chief lieutenants, when they apparently were corned in Tora Bora.23
In the spring of 2003, the Afghan incursion was followed by the invasion of Iraq. This action was the catalyst for anti-war protests at the time and, as it became clear that the Bush Administration and/or the CIA either misapprehended or prevaricated the presence of weapons of mass destruction in Iraq, criticism of the war became more widespread and caustic. As the conflict dragged on, costing more American lives and treasure, the drumbeat of blame intensified. Its crescendo probably was attained with the publication by celebrity-attorney Vincent Bugliosi’s 2008 diatribe, The Prosecution of George W. Bush for Murder.24
The purpose here is not to enter the debate about either the motives or the wisdom behind the Bush Administration’s twin decisions to open fronts in the Global War on Terror in Afghanistan and Iraq. Our interest here is limited to the results. It has been said that bin Laden hoped that the 9/11 attacks would lure the U.S. into a Soviet-style debacle in Afghanistan, and in October 2003 in a videotape broadcast by Al Jazeera, he exulted, “I am rejoicing in the fact that America has become embroiled in the quagmires of the Tigris and Euphrates. Bush thought that Iraq and its oil would be easy prey, and now here he is, stuck in dire straits, by the grace of God Almighty. Here is America today, screaming at the top of its voice as it falls apart in front of the world.”25
Undeniably, the two-front war has dragged into the new decade. As we look to the tenth anniversary of 9/11, it is unlikely in the extreme that U.S. forces will be extricated from either Iraq or Afghanistan. But does this stark reality indicate failure? I think not… for several reasons.
Duration of Conflict and Its (Intended and Unintended) Outcomes
Small wars can last a very long time. And, indeed, they test the tenacity of the combatants. America is no stranger to such protracted conflicts. One thinks immediately of the Vietnam War. But there were others, now largely overlooked:
• The Philippine War, 1899-1902
• The occupation of Haiti, 1915-1934
• The occupation of the Dominical Republic, 1916-1924
• The Nicaraguan insurgency, 1926-1933
• Involvement in China, 1901-194126
Not only is length of the U.S. deployment not necessarily any indicia of defeat. Additionally, one must assess not only the achievement, or lack thereof, of the stated goals. We must consider all outcomes, whether or not expressly stated or intended at the time that the incursion was undertaken. Thus, for example, it has been suggested that a highly significant result of the Korean Conflict was the development of Japanese industrial might, a key factor in making that defeated and occupied nation a self-sustaining, Democratic counterweight to the Peoples Republic of China.27
Revisionists have gone so far as to suggest that the Vietnam War (1959-1975) was in the long pull a positive economic influence on East Asia.28 It also has been pointed out that Colin Powell and others of his generation of American military minds applied lessons learned the hard way in Vietnam to subsequent U.S. military doctrine, the pay off coming in the First Gulf War.29
Applying a similar line of thinking to the two-front Global War on Terror, one must immediately note that in the nearly ten years since 9/11 there has been no repetition of that attack upon American soil (unless one considers the Fort Hood shootings of last year, discussed in Part IV, to be the exception to this statement). Proving a causal connection between the two-front war and the dearth of successful terrorist activities in the U.S. is probably an impossible task. However, observers have noted Al Qaeda’s role in current Afghan hostilities has diminished significantly,30 suggesting successful disruption of the organization’s continued vitality as an organized force for international terrorism. Similarly, in drawing jihadists into its killing fields, the war in Iraq may have siphoned off operatives, who might otherwise have acted against the U.S. closer to home.
Though the U.S. is by no stretch on the verge of extrication from either of the two fronts, evidence is accumulating that the Global War on Terror has begun a metamorphosis into a new phase.
[W]hether or not Plan A works in Afghanistan, we will still need a Plan B to fight the long war being waged by what Obama calls "violent extremists" -- sworn enemies of the West who see themselves as "jihadis," warriors commanded by the Koran to fight non-Muslims until all submit to Islamic law and Islamic rule.
News bulletin: There is a Plan B -- and it's already being implemented. As The New York Times reports, the Obama administration is now fighting a "shadow war against al Qaeda and its allies."
The Times continues: "In roughly a dozen countries -- from the deserts of North Africa, to the mountains of Pakistan, to former Soviet republics crippled by ethnic and religious strife -- the United States has significantly increased military and intelligence operations, pursuing the enemy using robotic drones and commando teams, paying contractors to spy and training local operatives to chase terrorists."31

Recent events in the U.S. suggest to this author that the two-front war plus this so-called “Plan B” have combined to disrupt the al Qaeda organization sufficiently, such as to compel a reversion to the tactic of “Leaderless Resistance,” not unlike the Anarchist movement, as outlined in Part I of this paper.
The Fort Hood Shootings (2009)
On November 5, 2009 a lone gunman opened fire in the crowded Soldier Readiness Center at Fort Hood, where deploying soldiers were receiving vaccines. The gunman wore a combat uniform and shouted “Allahu Akbar” – or, “God is greatest” – as he fired rapidly at unarmed, startled soldiers. Within ten minutes, thirteen were dead and more than thirty injured. SWAT-team markswoman Kimberly Munley managed to shoot the lone gunman in the chest; he was handcuffed as he fell unconscious from the wound that, although not fatal, paralyzed him from the chest down. The gunman was quickly identified as U.S. Army Major Nidal Malik Hasan.
Hasan, a devout Muslim and a psychiatrist at Fort Hood, had been deeply distressed about his deployment to Afghanistan, scheduled for November 28th, because he believed, “You're not supposed to have alliances with Jews or Christian or others, and if you are killed in the military fighting against Muslims, you will go to hell.”32 Over the previous five years, Hasan had begun to openly oppose the wars because of his religion.
What was unclear in this case, however, was whether or not Hasan expected to wake up in a martyr’s paradise rather than a hospital bed. Considering the fact that Hasan gave away most of his possessions, including his furniture and copies of the Koran, on the morning of the shooting, it seems doubtful that he planned on surviving that fateful day. Whether or not he considered himself a religious martyr, however, was unclear. Was the shooting simply yet another case of workplace violence? Or of mental illness manifesting itself, unfortunately but arbitrarily, in the workplace? Or did Hasan feel backed into a corner, convinced he could not avoid deployment and equally unable to bring himself to fight fellow Muslims in Afghanistan? Or were Hasan’s actions part of some larger conspiracy or operation? Specifically, were they an act of terrorism? And to that point, does it make any difference in terms of how we deal with such incidents prospectively?
Hasan was born on September 8, 1970 in Virginia to Palestinian parents who had emigrated from the West Bank in the 1960s.33 Hasan’s parents ran small businesses – a convenience store and two restaurants – which Hasan and his two brothers helped with until they left home for college and professional schools. Hasan was not a devout Muslim growing up, and so immediately after graduating high school, against the wishes of his parents, Hasan enlisted in the United States Army ROTC while attending Virginia Tech. According to a cousin, Hasan stated, “I was born and raised here, I’m going to do my duty to my country.”34 An aunt also said that the military “was his life.” In 1995, Hasan graduated from college with a bachelor’s degree in biochemistry and went on to receive training as a doctor at the Uniformed Services University of Health Sciences in Bethesda, Maryland.
Hasan’s uncle described him as “a gentle, quiet, deeply sensitive man,” even going so far as to describe a pet bird that Hasan had once owned, and which he fed by placing the bird in his mouth and offering it masticated food. When the bird died, Hasan apparently mourned it for months. One might think this anecdote explains his attraction to psychiatry. However, Hasan’s decision to become a shrink, rather than a surgeon, was prompted by an incident wherein he fainted while observing childbirth during medical training. He completed his residency in psychiatry at the Walter Reed Army Medical Center, where counseling and extra supervision were required for Hasan because he had some unexplained “difficulties,” according to training director Dr. Thomas Grieger.
In 2001, Hasan began attending the Dar al-Hijrah mosque in the Falls Church area – a mosque also attended at the same time by two September 11 hijackers, Nawaf al-Hazmi and Hani Hanjour, and by Ahmed Omar Ali, a man convicted of providing material support to al-Qaeda and conspiring to assassinate President George W. Bush. At the time, the mosque’s imam was Anwar al-Awlaki, an Islamic lecturer and spiritual leader with ties to al-Qaeda.
Hasan clearly revered al-Awlaki’s teachings, and he sent al-Awlaki as many as twenty emails from December 2008 forward. In his emails, Hasan asked al-Awlaki when jihad is appropriate, and if it was acceptable to kill innocents in a suicide attack. He also wrote that he couldn’t wait to join al-Awlaki in the afterlife. In the months before the shooting Hasan discussed how to transfer funds abroad without coming to the attention of law authorities. A counter-terrorism specialist reviewed the emails at the time and proclaimed them innocuous. The emails were viewed as “general questions about spiritual guidance with regard to conflicts between Islam and military service… judged to be consistent with legitimate mental health research about Muslims in the armed services.”35
However, Hasan had been an active anti-war presence on the Internet for years before his conversations with al-Awlaki. In one Internet posting titled “Martyrdom in Islam Versus Suicide Bombing,” Hasan compared a suicide bomber to a soldier who jumps on a grenade to save the lives of fellow officers in that both were sacrificing their lives “for a more noble cause.”36 This and other postings, however, were not definitively tied to Hasan at the time. After the Fort Hood shooting, al-Awlaki commended Hasan’s actions on his website, encouraging Muslims serving in the military to “follow in the footsteps of men like Nidal”:
Nidal Hassan is a hero. He is a man of conscience who could not bear living the contradiction of being a Muslim and serving in an army that is fighting against his own people.... Any decent Muslim cannot live, understanding properly his duties towards his Creator and his fellow Muslims, and yet serve as a US soldier. The U.S. is leading the war against terrorism, which in reality is a war against Islam....

Nidal opened fire on soldiers who were on their way to be deployed to Iraq and Afghanistan. How can there be any dispute about the virtue of what he has done? In fact the only way a Muslim could Islamically justify serving as a soldier in the US army is if his intention is to follow the footsteps of men like Nidal.

The heroic act of brother Nidal also shows the dilemma of the Muslim American community.... The Muslim organizations in America came out in a pitiful chorus condemning Nidal’s operation.

The fact that fighting against the US army is an Islamic duty today cannot be disputed. No scholar with a grain of Islamic knowledge can defy the clear-cut proofs that Muslims today have the right—rather the duty—to fight against American tyranny. Nidal has killed soldiers who were about to be deployed to Iraq and Afghanistan in order to kill Muslims. The American Muslims who condemned his actions have committed treason against the Muslim Ummah and have fallen into hypocrisy...37

Some investigators believe that Hasan’s conversations with Al-Awlaki were what prompted Hasan’s actions on November 5, 2009. If so, then Hasan is a classic case of Leaderless Resistance.
Though some believe the Fort Hood shooting to be the “first international terror attack on American soil since 9/11,”38 Hasan’s defense is gearing up to paint the attack as a spontaneous act, the desperate actions of a mentally ill man.39 Despite Hasan’s contact with al-Awlaki prior to the attack, an FBI investigators found that Hasan had apparently acted alone, without outside help or direct orders from al-Awlaki or anyone else to commit the attack on Fort Hood.40 However, investigators stressed that those were preliminary findings from the early stages of the investigation, which is ongoing.
However, the trial itself could go in any number of directions, and right now it is impossible to say how much will be revealed.
Our definition of terrorism may be changing, though, and Hasan may or may not become a part of a shifting definition:
"I used to argue it was only terrorism if it were part of some identifiable, organized conspiracy," says Bruce Hoffman, a terrorism expert at Georgetown University. But Hoffman has changed his definition, he says, because "this new strategy of al-Qaeda is to empower and motivate individuals to commit acts of violence completely outside any terrorist chain of command." Every month this year, he notes, there has been a terrorist event — either an act committed or one broken up before it could be carried out. "The nature of terrorism is changing, and Major Hasan may be an example of that," Hoffman argues. "Even if he turns out to have had no political motive, this is a sea change."

If "leaderless resistance" is the wave of the future, it may be less lethal but harder to fight; there are fewer clues to collect and less chatter to hear, even as information about means and methods is so much more widely dispersed. It is more like spontaneous combustion than someone from the outside lighting a match. Senator Joe Lieberman's Homeland Security Committee warned of this threat in a report last year. "The emergence of these self-generated violent Islamist extremists who are radicalized online presents a challenge," the report concluded, "because lone wolves are less likely to come to the attention of law enforcement." At least until they start shooting.

It might help if there were at least agreement on what constitutes terrorism; one government study found 109 different definitions. As far as the FBI is concerned, it counts as terrorism if you commit a crime that endangers another person or is violent with a broader intent to intimidate, influence or change policy or opinion. If Hasan shot people because of indigestion, worker conflict or plain insanity without a larger goal of intimidation or coercion, it was probably just a crime. If, on the other hand, his crime was motivated by more than madness — say, a desire to protest U.S. foreign policy — it was effectively terrorism.

So what are we to make of the free agents who might have never sworn allegiance to a band of jihadist brothers or plotted a conspiracy of violence, just watched some YouTube videos or downloaded some sermons and came away with visions of carnage dancing in their heads? "We have to be careful not to let our definition of terrorism become too broad," said former Homeland Security Secretary Michael Chertoff last year. "Particularly when we get to the individual lone wolf, then it really does become hard to distinguish between the person who killed the students at Virginia Tech and the person who might do the same thing simply because they read something on the Internet about bin Laden and that happened to appeal to their psychology." Once everything is terrorism, he warned, then nothing is. But while the motivations of the Virginia Tech gunman seemed perversely personal, Hasan had spent years telling anyone who would listen that the U.S. war effort in Iraq and Afghanistan was immoral.41

Anwar al-Awlaki and the Second Phase of the Global War on Terror
Al-Awlaki was born April 22, 1971 in Las Cruces, New Mexico. He is a dual citizen of the U.S. and Yemen. If he had a resume, it might identify him as an Islamic lecturer, spiritual leader, and former imam, who has inspired Islamic terrorists against the West. According to U.S. officials, he is a “senior talent recruiter and motivator,” who has also become “operational” as a planner and trainer, "for al-Qaeda and all of its franchises".42 The U.S. Under Secretary of the Treasury for Terrorism and Financial Intelligence warned that al-Awlaki "is extraordinarily dangerous, committed to carrying out deadly attacks on Americans and others worldwide".43 With a blog, a Facebook page, and many YouTube videos, he has been described as the "bin Laden of the Internet".44
Al-Awlaki's sermons were attended by three of the 9/11 hijackers. He reportedly met privately with two of them in San Diego. One moved from there to Falls Church, Virginia, as al-Awlaki moved. Investigators suspect al-Awlaki may have known about the 9/11 attacks in advance.45 In 2009, he was promoted to the rank of "regional commander" within al-Qaeda, according to U.S. officials.46
As noted above, his sermons were also attended by accused Fort Hood shooter Nidal Malik Hasan. U.S. intelligence intercepted at least 18 emails between Hasan and al-Awlaki in the months prior to the Fort Hood shooting, including one in which Hasan wrote: "I can't wait to join you [in the afterlife]." After the shooting, al-Awlaki praised Hasan's actions. In addition, "Christmas Day bomber" Umar Farouk Abdulmutallab said al-Awlaki was one of his al-Qaeda trainers, who met with him and was involved in planning or preparing his attack, and provided religious justification for it, according to U.S. officials. In March 2010, al‑Awlaki said in a videotape that jihad against America was binding upon every able Muslim.
Shortly after the Fort Hood shootings, news sources revealed that the rogue cleric had escaped to Yemin, apparently due to police incompetence. According to ABC News, “A felony arrest warrant for radical Islamic cleric Anwar al Awlaki was rescinded in 2002 a day before he was intercepted as a terror suspect at New York's JFK airport, forcing authorities to release him, according to sources familiar with the case. The warrant was cancelled by the U.S. Attorney's Office in Denver, even though Awlaki was on a terror watch list, and even though the office's supervising prosecutor for terror cases -- who has now been appointed by the Obama administration as the U.S. Attorney in Denver -- had been fully briefed on Awlaki's alleged terror ties, according to investigators.”47
As Awlaki’s connections to other would-be terrorists, such as 2010’s Times Square Bomber, became increasingly apparent, the Obama administration placed him on its “targeting shooting” list.48 This in turn led to a lawsuit brought by the American Civil Liberties Union and the Center for Constitutional Rights on August 30, 2010.49
Al-Awlaki may be an American citizen and he may be an Imam. But he is also a figure connected by evidence to a whole series of recent terrorist attempts upon the U.S. and Europe. These failed strikes include:
• The Christmas Day Bomber: Al-Awlaki and Umar Farouk Abdulmutallab, the al-Qaeda attempted bomber of Northwest Airlines Flight 253 on December 25, 2009, had contacts according to assorted sources. In January 2010, CNN reported that U.S. "security sources" said that there is concrete evidence that al-Awlaki was Abdulmutallab's recruiter and one of his trainers, and met with him prior to the attack.52 In February 2010, al-Awlaki admitted in an interview published in al-Jazeera that he taught and corresponded with Abdulmutallab, but denied having ordered the attack.53
• The Fall 2010 Cargo-Plane Bomb Plot: A British newspaper, The Telegraph, reported that U.S. and British counter-terrorism officials believe that al-Awlaki was behind the cargo-plane bombs that were sent from Yemen to Chicago in October 2010.54 U.S. Ambassador to Yemen Gerald Feierstein said flatly, "al-Awlaki was behind the two ... bombs.”55
And, of course, there is Alwaki’s alleged connection to the Times Square, as noted in Part V.
The outcome of the ACL’s action on Awlaki’s behalf may have critical implications for the second phase of the Global War on Terror. If the organization and Awlaki’s father as first friend persist, it may require the Supreme Court, as with the Guantanamo detainees, to tell us what are the constitutional limits of phase two tactics.