An essay on "Incitement" law

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.
III. The SHAC 6 Case
David DeGrazia identifies three gradations of standards subscribed by animal-rights activists:
• Sliding-scale model: “Animals may be used in research only where their use is consistent with giving their interests appropriate moral weight in view of the animals’ cognitive, emotional, and social complexity.”
• Utilitarianism: “Animals may be used in research only where their use is likely to maximize the overall balance of benefits – factoring in likelihood of success – over harms, where all parties’ (including animals’) interests are impartially considered.”
• Strong animal-rights view: “Animals may be used in research only where (1) their involvement does not harm them or (2) their involvement is in their overall best interests (therapeutic research). This view might also permit animals to be used in research where (3) their involvement poses only minimal risk to them.”
Clearly, the third level is the most demanding. Indeed, the definition proffered by DeGrazia masks the extreme nature of this last position. The devil, as they say, is in the details. For example, whether what a scientist does to his animals harms them or not depends entirely on the definition of the word “harm.” If one includes under harm the mere caging of an animal, then it is virtually impossible for a research scientist to work with animals in his lab. Similarly, if one deems the anxiety caused to an animal by the mere handling of that animal to be “harm,” then, once again, the definition would make it well-nigh impossible for a researcher to work with any such animals.
If these interpretations seem far-fetched, then consider the following:
PETA: People for the Ethical Treatment of Animals
Animal Exploitation

Every year, more than 3 million dogs, cats, birds, rabbits, and other animals are euthanized because they were born into a world that does not have enough homes for them. For every one companion animal who lives indoors with a human family and receives the attention, health care, and emotional support that he or she needs, there are thousands just barely surviving. Millions of domestic animals never know a kind human touch and live hard lives on the street before dying equally hard deaths.

Others suffer at the hands of an unfit guardian who deprives them of veterinary care and other basic necessities: Social birds are left alone in tiny, barren cages for years as decorations; rabbits, guinea pigs, and hamsters are kept in filthy cages and only paraded out as a source of entertainment now and then; cats are left outside and often become victims of cruel people; dogs are left chained outside or kept in waste-strewn pens with only a metal barrel to protect them from the elements.

Every animal deserves a chance to thrive in a responsible and permanent home. Sadly, breeders, pet stores, and people who fail to sterilize their companion animals have created a tremendous overpopulation problem that forces animal shelters to put millions of dogs and cats to death every year.


Those who subscribe to such anthropomorphic sentiments, as those reflected in this statement, also tend to deny that – to borrow from George Orwell’s Animal Farm – some animals are more equal than others. Thus, for example, a recent essay by two biologists rejects all of the following arguments for distinguishing among phyla and species in according animals rights:
• The evolutionary argument
• Variations in awareness of self
• Variations in memory and planning skills
• Animal intentionality
These writers conclude that, “given our present state of knowledge of the needs and capabilities of classes of animals, let alone individual species, we feel, as biologists, that we first and foremost ought to guard against, or at least be very cautious about, the temptations of creating a scale of lesser or greater value of one species over another.”
From such philosophical/ethical tenets the distance to radical tactics is short. Consider the cartoon below, taken from the Animal Liberation Front website.
[Cartoon should be placed about here.}
In close proximity with this cartoon on the site is the “ALF Credo”:
The Animal Liberation Front (ALF) carries out direct action against animal abuse in the form of rescuing animals and causing financial loss to animal exploiters, usually through the damage and destruction of property.

The ALF's short-term aim is to save as many animals as possible and directly disrupt the practice of animal abuse. Their long-term aim is to end all animal suffering by forcing animal abuse companies out of business.

It is a nonviolent campaign, activists taking all precautions not to harm any animal (human or otherwise).

Because ALF actions may be against the law, activists work anonymously, either in small groups or individually, and do not have any centralized organization or coordination.

The Animal Liberation Front consists of small autonomous groups of people all over the world who carry out direct action according to the ALF guidelines. Any group of people who are vegetarians or vegans and who carry out actions according to ALF guidelines have the right to regard themselves as part of the ALF.

The last paragraph of this credo springs from the broader radical tradition of “Leaderless Resistance,” discussed in Part II, supra. “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.”
Stop Huntington Animal Cruelty (SHAC) sought to apply this principle to its activities in an effort to avoid criminal liability for the illegal acts of its adherents.
As we shall see, SHAC failed.
Federal Legislation to Protect Scientists Using Animals
Congress acted to protect researchers, who use animals in their experiments, as early as 1992.
Animal Enterprise Protection Act of 1992 (AEPA)

Public Law 102-346--Aug. 26, 1992

102nd Congress
An Act To Protect Animal Enterprises.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Animal Enterprise Protection Act of 1992".

SEC. 2. ANIMAL ENTERPRISE TERRORISM.

(a) IN GENERAL.--Title 18, United States Code, is amended by inserting after section 42 the following:

"§ 43. Animal enterprise terrorism

"(a) OFFENSE.--Whoever--
"(1) travels in interstate or foreign commerce, or uses or causes to be used the mail or any facility in interstate or foreign commerce, for the purpose of causing physical disruption to the functioning of an animal enterprise; and

"(2) intentionally causes physical disruption to the functioning of an animal enterprise by intentionally stealing, damaging, or causing the loss of, any property (including animals or records) used by the animal enterprise, and thereby causes economic damage exceeding $10,000 to that enterprise, or conspires to do so; shall be fined under this title or imprisoned not more than one year, or both.

"(b) AGGRAVATED OFFENSE.--

"(1) SERIOUS BODILY INJURY.-- Whoever in the course of a violation of subsection (a) causes serious bodily injury to another individual shall be fined under this title or imprisoned not more than 10 years, or both.

"(2) DEATH.--Whoever in the course of a violation of subsection (a) causes the death of an individual shall be fined under this title and imprisoned for life or for any term of years.

"(c) RESTITUTION.-- An order of restitution under section 3663 of this title with respect to a violation of this section may also include restitution--

"(1) for the reasonable cost of repeating any experimentation that was interrupted or invalidated as a result of the offense; and

"(2)) the loss of food production or farm income reasonably attributable to the offense.

"d) DEFINITIONS.-- As used in this section--
"(1) the term 'animal enterprise' means--

"(A) a commercial or academic enterprise that uses animals for food or fiber production, agriculture, research, or testing;
"(B) a zoo, aquarium, circus, rodeo, or lawful competitive animal event; or
"(C) any fair or similar event intended to advance agricultural arts and sciences;

"(2) the term 'physical disruption' does not include any lawful disruption that results from lawful public, governmental, or animal enterprise employee reaction to the disclosure of information about an animal enterprise;

"(3) the term 'economic damage' means the replacement costs of lost or damaged property or records, the costs of repeating an interrupted or invalidated experiment, or the loss of profits; and

"(4) the term 'serious bodily injury' has the meaning given that term in section 1365 of this title.

"9e) NON-PREEMPTION.--Nothing in this section preempts any State law.".

(b) CLERICAL AMENDMENT.--The item relating to section 43 in table of sections at the beginning of chapter 3 of title, United States Code, is amended to read as follows:

"43. Animal enterprise terrorism.".

SEC. 3. STUDY OF EFFECT OF TERRORISM ON CERTAIN ANIMAL ENTERPRISES.

(a) STUDY.-- The Attorney General and the Secretary of Agriculture shall jointly conduct a study on the extent and effects of domestic and international terrorism on enterprises using animals for food or fiber production, agriculture, research, or testing.

(b) SUBMISSION OF STUDY.-- Not later than 1 year after the date of enactment of this Act, the Attorney General and the Secretary of Agriculture shall submit a report that describes the results of the study conducted under subsection (a) together with any appropriate recommendations and legislation to the Congress.

Approved August 26, 1992.

What has been the effect of this federal statute? In the words of one scientist, who said that he himself had been victimized by animal-rights activists:
After accepting the responsibility to write this article, I immediately plowed into the subject expecting to find myself awash in information about the Act on the internet. Having been detoured there on many occasions, I was nervous about the task of ferreting the relevant from the extraneous, so I fired up my favorite search engine and browsed the web for information on two items, the "Animal Enterprise Protection Act" and the "Animal Welfare Act," fully anticipating both searches to yield the standard mega-response that typically goes with such unsophisticated search strategies. To my amazement, the phrase "Animal Enterprise Protection Act" yielded less than 40 hits. This simple test set the stage for a remarkable discovery. Unlike the Animal Welfare Act, a topic that yielded more than 1,600 hits on my global search of the internet, no one seemed to care very much about the Act that offered such hope for so many just seven years ago.

I immediately picked up the phone and began calling colleagues who I knew could help me understand how this potentially important piece of legislation, written to protect honest users of animals from animal rights terrorists, had suffered such undignified rejection at the hands of the federal prosecutors it was designed to energize. I was then stunned to learn that no one has been prosecuted under the provisions of the Act. No one. Not a single soul since the Animal Enterprise Protection Act became the law of the land.

While there may be many explanations for the dormancy of prosecutors in the use of this legal tool, we can all be certain that the failure to exercise the Act in the courts is unrelated to the level of animal rights activity during the period since its enactment. On the contrary, a strong case can be made that the overall level of animal enterprise terrorism in the US has dramatically increased since 1992. Numerous laboratory break-ins have occurred during this time frame, violence and vandalism at fur farms are on the rise, as are animal releases from research and animal husbandry facilities around the world. During this period, death and bomb threats have continued to flow from activists as freely as small talk at the local tavern, and animal rights leaders continue to egg on their foot soldiers with inflammatory talk of revolution.

This commentator criticized the act for carrying penalties that are too light to deter, as well as for failing to forbid or punish the many minor acts of humiliation, such as “pies in the face,” that fall short of anything a federal prosecutor would care to handle. He noted that two attempts to pursue private actions fell flat, dismissed because the courts held that the act was a purely criminal statute that accorded no such right to a civil suit. The writer concludes,
The question that I pose as central to this discussion and the one that I had to grapple with as I wondered about my decision to write this essay is, ‘Can the handful of philosophers, lawyers, and political activists among us who are promoting the idea that ethical distinctions cannot be made among members of the animal kingdom ever truly hope to win this extreme argument that they wage?’ I seriously doubt it. But if they were successful, those other human tragedies to which I refer would be compounded by the Alice in Wonderland atmosphere that would have consumed us.

Dr. Walsh’s article was published in 2000. With the September 11, 2001 terrorist attacks, it was not only Uncle Sam’s attitude toward Islamic terrorists that changed. However, it would be another five years until the Department of Justice would bring a group of cyber-terrorists from the radical animal-rights movement into a federal court to test whether their brand of leaderless resistance was protected by the First Amendment or, conversely, could be punished under this long-ignored federal law.
Stop Huntington Animal Cruelty (SHAC)
Huntingdon Life Sciences is a research corporation that performs testing for companies seeking to bring their products to market. The testing that Huntingdon provides to its clients is mandated by the laws and regulations of the United States and Europe to ensure the safety and efficacy of pharmaceuticals, agricultural products, veterinary products, and medical implants. Huntingdon has three laboratories, two in the United Kingdom and one in New Jersey. All Huntingdon laboratories use animals as test subjects. Approximately eighty-five percent of the animals used by Huntingdon are rats and mice, and the remaining fifteen percent is composed of other species, including fish, dogs, monkeys, and guinea pigs.
In the late 1990s, an individual posing as a laboratory technician videotaped the conditions inside a Huntingdon laboratory in the United Kingdom. The footage, which depicted animal abuse, became public when it was used in a television program, igniting protests against Huntingdon by a number of animal rights organizations. At about the same time, Stop Huntingdon Animal Cruelty was formed in the United Kingdom (SHAC-UK). The organization's mission is to close Huntingdon laboratories.
Immediately after SHAC-UK formed in November 1999, the organization published a newsletter that listed the names and addresses of the Huntingdon directors in the United Kingdom. Following the publication of the newsletter, animal rights protestors subjected the Huntingdon directors to an ongoing campaign of harassment, including vandalizing their homes and cars.
In February 2001, the Chief Operating Officer and Managing Director of Huntingdon, Brian Cass, was physically assaulted by three masked individuals in front of his home in England. Cass suffered cracked ribs, several lacerations, and a four-inch gash on his head that required nine stitches. David Blinkinsopp, who had been identified in video footage of SHAC-UK protests in front of Huntingdon, was convicted of the assault. The remaining two assailants were never identified.
SHAC-UK's campaign evolved to include companies and individuals who were associated with Huntingdon, such as suppliers and customers. In addition, SHAC-UK began to target Huntingdon's shareholders, demanding that the shareholders sell their stock in Huntingdon or face twenty-four hour demonstrations at their homes. Because the laws in the United Kingdom require companies to publish the names and addresses of their shareholders, Huntingdon relocated its financial base to the United States in an effort to protect its shareholders. SHAC then formed a branch in the United States to target the New Jersey-based branch of Huntingdon. The New Jersey branch of SHAC is one of the defendants in this action, along with six individuals… thus, “the SHAC 7.”
SHAC’s Website
SHAC's primary organizing tool was its website, through which members coordinated future protests. It also published information about protests that had previously taken place. The website included a page dedicated to the concept of “direct action,” which all parties to the 2006 criminal prosecution and subsequent appeal conceded was a type of protest that included the illegal activities that ended in a grad jury indictment. With regard to its position on the use of direct action, SHAC stated the following on its website:
We operate within the boundaries of the law, but recognize and support those who choose to operate outside the confines of the legal system.
Big business has shown time and time again their lack of concern for ethics, instead focusing their attention on their profit. Often, simply targeting said business proves fruitless. However, as above ground activists have successfully targeted [Huntingdon]'s financial pillars of support, underground activists have too targeted [Huntingdon]'s pocketbooks. Unidentified individuals as well as underground cells of the Animal Liberation Front and the Earth Liberation Front have engaged in economic sabotage of [Huntingdon] and their associates.

They have also spent their time directly intervening and liberating the animals who are slated to die inside of [Huntingdon]. Animals have been liberated from breeders as well as the laboratories themselves.

SHAC does not organize any such actions or have any knowledge of who is doing them or when they will happen, but [SHAC] encourage[s] people to support direct action when it happens and those who may participate in it.

The website often posted the organization's “accomplishments,” which lauded both legal and illegal protest activities. The illegal activities included, among other things:
• a break-in at the Huntingdon lab in New Jersey, during which protestors broke windows and “liberated 14 beagles,” in addition to overturning a worker's car;
• detonating a “stink bomb” in the Seattle office of a Huntingdon investor;
• destroying Bank of New York ATMs, windows, and other property;
• sinking a yacht owned by the Bank of New York's president; launching repeated “paint attacks” in the New York offices of a Huntingdon investor;
• and “rescuing” dogs and ferrets from a Huntingdon breeder farm.
The website also posted “anonymous” bulletins of successful, but illegal, protest activities. In this capacity the site postured as a mere conduit of information, roughly analogous to a news medium’s website. One such anonymous bulletin stated:

Late last night, August 30th, we paid a visit to the home of Rodney Armstead, MD and took out two of his front windows ... gave him something to labor over this Labor Day weekend. Rodney serves as an officer and agent of service for “Medical Diagnostic Management, Inc.,” a scummy little company [associated with Huntingdon]. Any ties with [Huntingdon] or its executives will yield only headaches and a mess to clean up.

The name and home address of Dr. Armstead followed. However, shedding the mask of neutrality, this bulletin was prefaced by SHAC's statement that it was “excited to see such an upswing in action against Huntingdon and their cohorts. From the unsolicited direct action to the phone calls, e-mails, faxes and protests. Keep up the good work!” Similar bulletins included photographs of extensive vandalism of the homes of people indirectly affiliated with Huntingdon, such as employees of Bank of New York. These bulletins almost always contained a disclaimer that “all illegal activity is done by anonymous activists who have no relation with SHAC.”
The SHAC website also posted a piece called the “Top 20 Terror Tactics” that was originally published by an organization that denounced the use of animals in medical research and testing. With its standard disclaimer about SHAC not organizing illegal activity, SHAC re-published the list on its website. Some of the tactics included abusive graffiti, posters, and stickers on houses, cars, and in neighborhoods of targeted individuals; invading offices, damaging property, and stealing documents; chaining gates shut or blocking gates with old cars to trap staff on site; physical assaults against the targeted individuals, as well as their partners, including spraying cleaning fluid into their eyes; smashing windows in houses when the occupants are home; flooding houses with a hose attached to an outside tap inserted through a letterbox or window while the home is unoccupied; vandalizing personal vehicles by gluing locks, slashing tires, and pouring paint on the exterior; smashing personal vehicles with a sledgehammer while the targeted individual is inside; firebombing cars, sheds and garages; bomb threats to instigate evacuations; threatening telephone calls and letters, including threats to injure or kill the targeted individual, as well their children and partners; abusive telephone calls and letters; ordering goods and services in the targeted individual's name and address; and arranging for an undertaker to collect the target's body. Following the list, the SHAC website stated, “Now don't go getting any funny ideas!”
The website had a series of links dedicated to educating activists on how to evade investigators. These links were entitled, “Ears and Eyes Everywhere,” “Dealing with Interrogation,” “When an Agent Knocks,” and “Illegal Activity.” In these sections of the website, SHAC advised its protesters to “never say anything over the phone, email or in your house or car that you wouldn't want the authorities to hear. If you need to discuss sensitive information, do it in a remote location. Burn anything with sensitive information on it.... Visit www. pgp. com and download an email encryption program to protect your email conversations.” “PGP” stands for “pretty good privacy,” and that encryption device was generally effective at protecting e-mail conversations from outside monitoring. PGP is also used to erase data from hard drives. The software was found on eight of the nine computers at SHAC's de facto headquarters, which three of the defendants also called home.
Through its website, SHAC also invited its supporters to engage in electronic civil disobedience against Huntingdon and various companies associated with Huntingdon. Electronic civil disobedience involved a coordinated campaign by a large number of individuals to inundate websites, e-mail servers, and the telephone service of a targeted company. Electronic civil disobedience also included the use of “black faxes,” repeatedly faxing a black piece of paper to the same fax machine to exhaust the toner or ink supply. SHAC sponsored electronic civil disobedience campaigns on the first Monday of every month. It reminded its supporters that electronic civil disobedience was illegal, and therefore supporters should only participate if they “are like Martin Luther King and are ready to suffer the consequences ... or if [the supporters] want to live to fight another day, do the electronic civil disobedience from a public computer that cannot be traced....”
Another way that SHAC encouraged the use of electronic civil disobedience was through its “Investor of the Week” feature, which highlighted a company associated with Huntingdon by publishing the company's contact information. SHAC told its supporters to “Take advantage of pay phones! Especially with toll free numbers! [sic]”
The website also provided a link to a black fax for their personal use. Alternatively, the website noted that supporters could just use black paper to “give your target's fax machine a run for its money ... or ink!” The website explained how a supporter could block his phone number so that it would not appear on the fax or telephone line's caller identification. In addition, the website explained how to prevent the targeted company's servers from blocking e-mails, and provided a link to encryption devices that ostensibly masked the sender.
One specific example of SHAC's coordination of electronic civil disobedience, cited by the U.S. Court of Appeals in its 2009 review of the case, is an e-mail from “shacuse@ envirolink. org” that was disseminated on October 26, 2003. The subject line of the e-mail was “Electronic Civil Disobedience,” and it advised SHAC supporters that on the following day, SHAC's website would provide a link to the SHAC-Moscow website where “electronic civil disobedience will be taking place.” The e-mail stated that “participation is mandatory,” and that by taking part in the coordinated electronic civil disobedience, supporters would “help ... halt the ever important web medium for particular companies sponsoring Huntingdon.” Participation would also “send[ ] a loud message that no silly injunctions or crooked politicians can derail the campaign to close Huntingdon.”
Indictments and Trial
An indictment was filed against the SHAC7 in the U.S. District Court of New Jersey in its Trenton courthouse on May 20, 2004. On September 16, 2004, the government filed a superseding indictment. On September 16, 2004, SHAC, Kjonaas, Gazzola, Conroy, Harper, Stepanian, and Fullmer were charged in a superceding indictment. Count One of the indictment charged that all six individual defendants conspired to violate the Animal Enterprise Protection Act, 18 U.S.C. § 43. Count Two charged SHAC, Kjonaas, Gazzola, and Conroy with conspiring to commit interstate stalking in violation of 18 U.S.C. § 2261A(2) and 18 U.S.C. § 371. Counts Three, Four, and Five charged SHAC, Kjonaas, Gazzola, and Conroy with substantive interstate stalking of Sally Dillenback, Marion Harlos, and Robert Harper, respectively. Count Six charged SHAC, Kjonaas, Gazzola, Conroy, and Harper of conspiring to use a telecommunications device to abuse, threaten, and harass in violation of 18 U.S.C. § 371 and 47 U.S.C. § 223(a)(1)(c).

The three-week trial began in early February 2006. The government presented a parade of corporate witnesses who described in graphic detail the patterns of harassment to which they had been subjected. SHAC didn’t confine its campaign to Huntingdon’s New Jersey employees. It targeted the management of service providers, shareholders of corporations holding a block of Huntingdon’s stock, and anyone else who seemed to be supporting their bete noir.
Andrew Baker
SHAC’s website said of Andrew Baker, chairman of Life Sciences Research, a Huntingdon holding company,
If there is one man on whom you could place the most blame for [Huntingdon's] crimes since 1998, it is him. For the last four years since he watched little dogs getting punched in the face, Baker has put his all into keeping Huntingdon afloat. Not an easy job. As a trained chartered accountant Baker is skilled at pulling the financial strings of companies he is in charge of.... He currently works out of a NJ office called Focused HealthCare Partners LLC-which acts as a general partner for healthcare startups ... or failing labs like Huntingdon.... Baker has been essentially reduced to scrambling full time to save Huntingdon. He has nothing else going for him. If [Focused HealthCare Partners] is the vehicle he uses to support Huntingdon, [Focused HealthCare Partners] is the company we must dismantle.

Placed into evidence was this posting from the SHAC website:

Despite driving winds, rain, and cold weather 75+ activists gathered at [address redacted by the court] to protest the home of Andrew Baker CEO to Huntingdon. Andrew Baker is at the top of our “SH&)%;!” list for his lead in trying to save Huntingdon from certain closure. This was the largest and angriest of the 3 days of protest.... Andrew you and all your senior management and “science” staff have no idea what we have in store for you! Murderers, lairs [sic], thieves, and perverts deserve to be treated as such. In the near future when we see you in the gutter stripped of all your riches and fabricated respect, the only handout you will get is our spit!

Baker himself testified that protestors also targeted his daughter's New York apartment. He stated that vandals “plastered” the front door of her apartment “with posters and pictures ... depicting [his] death.”
The website added, “So, apparently Andy is bi-coastal (as if you couldn't tell). In addition to the 2 million dollar penthouse apartment he owns on NYC's upper Westside ( [address redacted by the court] ), Baker also has a sunny California home in Los Angeles. This choice location on Sunset Plaza Drive should be the number one attraction on any animal rights activist's Hollywood star-map.”
Baker went on to testify that the house in Los Angeles had been attacked three times. He stated that during the first attack, the protestors kicked in the gate at the street entrance, broke the front door, and broke two windows. During the second attack, the protestors broke a window in the garage and threw a smoke bomb inside. During the third attack, the protestors threw rocks and tile over the wall, hitting the top and sides of the house, including windows and doors.
Sally Dillenback
Dillenback was a senior executive in the Dallas offices of Marsh, Inc., the huge, international insurance broker. She testified that in early 2002, she learned that SHAC had targeted Marsh. In March 2002, Dillenback checked the SHAC website after learning that personal information about employees had been posted there. When she viewed the website, she saw that her personal information had been posted, including the names of her husband and her children, as well as their home address, the name of her children's school, the make, model and license plate of their personal vehicle, the name of their church, and the name of the country club where they were members.
Shortly after the information appeared on the SHAC website, Dillenback testified that her family began receiving phone calls, often “angry and belligerent,” day and night, as well as a “tremendous” volume of mail. Dillenback testified that one morning, her family awoke to find that pictures of mutilated animals had been glued to the sidewalk in front of her home, as well as the exterior side wall of her home. At the same time, the following was posted on the SHAC website:

received anonymously on March 10:

Last night the homes of Dallas Marsh employees Michael Rogan and Sally Dillenback were visited by activists. Mr. Rogan's garage was plastered with stickers of mutilated puppies such as those his company insures. Mrs. Dillenback's side wall was covered in stickers, as was her mailbox.

Let the stickers serve to remind Marsh employees and their neighbors that their homes are paid for in blood, the blood of innocent animals that are killed in labs like Huntingdon. Every day that Marsh insures Huntingdon, they insure death.

Dillenback testified that after this incident, she was “sickened and terrified,” and that her children were scared, especially the youngest child who was seven years old at the time. Marsh provided 24-hour security at her home following this incident.
Dillenback also received an e-mail that she perceived as a direct threat to her youngest son. She testified that the e-mail asked how she would feel “if they cut open my son ... and filled him with poison the way that [Huntingdon] was doing to animals....” (J.A. at 3004.) She testified that this e-mail “devastated” her. She further testified that during this period of time, her husband purchased a semi-automatic weapon and that her seven-year-old son twice brandished a kitchen knife while inside the house in an effort to protect himself and the family.
After Dillenback initially testified regarding her son's use of the knife at her deposition, the following posting, attributed to “TX activists,” appeared on the SHAC website:

On Saturday, December 14, activists paid a holiday visit to Sally Dillenback, head of Dallas Marsh office. She was surprised, finding her working on her Christmas tree with her family.... Contrary to Sally's sworn testimony at her deposition, her son did not run for a kitchen knife and to hide when he saw the activists. Instead, he and his sister seemed quite interested in the signs and appeared to be trying to read them from across the street.

Merry Christmas, Sally. Take a moment to think of all the dogs, like the one who shares your home, who will be spending Christmas in their own congealed blood and feces at Huntingdon, thanks in part [to] your company's insurance.

Dillenback testified that the protests stopped in early 2003, when Marsh stopped providing insurance brokerage services to Huntingdon. Notably, the SHAC website quoted a Financial Times article explaining that Marsh had dropped Huntingdon as a client on December 18, 2002.
Marion Harlos
Harlos Headed up the San Antonio offices of Seabury and Smith, a Marsh subsidiary. Like Dillenback, she learned from corporate headquarters that she had been targeted for protests on the SHAC website, which listed her home address and phone number. Within a week, there was a protest at Harlos's office. Protestors “bashed” in the door and threw pamphlets across the office while screaming, “You have the blood of death on your fingers,” “We know where you live,” “You cannot sleep at night,” and “We will find you.” Seabury and Smith subsequently hired security guards for the San Antonio office.
Harlos testified that the protestors returned to the office a few weeks later. Although the security guard stopped most of the protestors, one made it inside, throwing pamphlets and screaming, “Puppy killer,” and “We know where you live.” This protest was memorialized on the SHAC website as follows:
Today around 11:30 am, 5 activists visited the San Antonio Marsh office ... and gained access to the lobby. They rang the bell and a security guard answered, one activist made an attempt to get in past the guard and got half way in. It was enough to throw two or three dozen anti Huntingdon flyers into the air scattering and landing into the cubicles. All of the activist[s] screamed “puppy killer” and “we won't stop [until] you drop Huntingdon”. As they left they banged on the windows and promised “next time we will be at your HOME”.

Harlos testified that after this protest, she began receiving phone calls at her home late at night. She stated that sometimes the caller asked, “Are you scared? Do you think the puppies should be scared?” Protestors, wearing bandanas and masks to conceal their faces, often sat in a car outside her residence between 4:00 A.M. and 6:00 A.M., watching her house. Then, protests began. One morning, nine activists were arrested outside Harlos's home and were charged with third degree stalking. The SHAC website announced the arrests and urged its protestors to call the local police department in Texas to demand the protestors' release.
Harlos also testified that she was “petrified” and frightened for her children, who were no longer permitted to play outside. She also testified that her fear stemmed, in part, from her knowledge of what had happened to others who had been targeted by SHAC, including physical attacks. The activists continued to trespass on her property, despite an injunction that was intended to limit the permissible bounds of the protests. Harlos testified that the protests had a profound effect on her life, and the life of her family, ultimately forcing her to move to a new home. As with Dillenback, Harlos testified that the protests ceased when Marsh ended its business relationship with Huntingdon.
Robert Harper
Harper was a property broker in Marsh’s Boston Office. SHAC’s website posted the following missive to Mr. Harper:
Received anonymously:
Happy Father[']s [D]ay Rob Harper. I hope you liked our gift[.]
In the wee hours of the mourning (sic) on June 15, Marsh Boston Employee, Rob Harper [home address redacted] received an early Father[']s Day gift that he will never forget. A few gallons of red paint were thrown all over Harper's front steps and door. This left the front of his house caked in a huge pool of red paint.
Rob Harper is responsible for 500 animals dying within [Huntingdon] today and as long as Marsh has ties with [Huntingdon], Marsh will be a target. This also goes for any other company or business that has times [sic] with Huntingdon-
they will pay for it. (sic)
There will be no rest for these murders. [Huntingdon] will be closed.
This action is dedicated to the 500 animals that were murdered inside of [Huntingdon] today.
Love,
The Animal Liberation Front
Harper testified that after these protests began, his workday was “consumed” with checking the SHAC website. He testified that he became aware of other protests and other targets, including the physical assault of Brian Cass in the United Kingdom, as well as protestors destroying vehicles. He stated that this made him feel “vulnerable” and “concerned for his family,” as well as angry and helpless because his life was so profoundly disrupted.
On August 9, 2002, Harper added, he was at work when a protest occurred at his home. His wife called him, crying and frantic. He arrived home to find his wife and two-year-old son upset. The protestors outside were screaming “puppy killer” and threatening to burn the house down. A video played at trial showed that Lauren Gazzola, a Defendant in this case, was present at this demonstration, shouting into a bullhorn,
Where were the police when a [Huntingdon] worker's car got flipped over in his driveway? Where were the police when a Marsh executive had all his windows smashed in and his house covered in red paint in Chicago? And where were the police when your house was covered in red paint a few weeks ago? They can't protect you. Your injunctions can't stop us. We'll always find a way around whatever they throw at us.

Harper testified that this was “one of the worst days of [his] life.” He feared that someone would “throw a Molotov cocktail” into the house, or that someone would physically assault him or his family. He contemplated moving and quitting his job, but yet again the protests stopped when Marsh ended its business relationship with Huntingdon.
Conviction and Appeal
The jury convicted all the defendants on all counts. On September 12, 2006, the District Judge sentenced SHAC to five years' probation; Kjonaas to 72 months' imprisonment; Gazzola to 52 months' imprisonment; Conroy to 48 months' imprisonment; Harper to 36 months' imprisonment; Stepanian to 36 months' imprisonment; and Fullmer to 12 months' imprisonment. Defendants filed a timely notice of appeal in the U.S. Court of Appeals for the Third Circuit, which calls Philadelphia home, challenging both their underlying convictions and sentences.
In 2009, the Third Circuit affirmed the convictions and the sentences, holding, (1) the AEPA was not unconstitutionally vague; (2) conduct defendants were convicted of was not protected by the First Amendment; (3) government provided sufficient evidence to prove defendants conspired to violate the AEPA; and (4) government produced sufficient evidence to convict defendants of interstate stalking offenses.

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.