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Articles Below (Scroll Down) . . . . . . . . . .
They Dare Call It Treason (Finally)
When Does Speech Become Treason?
Dissent Or Treason?
Seditious Conspiracy
United States v. Lynne Stewart, Annotated
The Baghdad Boys: Don't Call Them Traitors
The Fifth Column's Legal Team
Treason Lite
Extended Summary of the Law of Treason
Treason Symposium (Holzer, McCarthy, Horowitz)
They Dare Call It Treason (Finally)
In a stunning reversal of United States policy that has been in place since the end of World War II, turncoat citizen Adam Gadhan has been indicted for the constitutional crime of treason. (The second count of the indictment charges him with the crime of providing material support to a designated foreign terrorist organization.)
Eight treason indictments and convictions of Americans came out of World War II. One resulted from mistreatment of prisoners of war held in Japan. Two arose from spying activities in the United States. Four, including a case against the infamous Axis Sally, were for making propaganda broadcasts on behalf of the Nazis. The fifth was for similar broadcasts by the equally infamous Tokyo Rose.
All eight indictments and convictions were based on Article III, Section 3, Paragraph 1, of the Constitution of the United States: “Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them aid and comfort.”
The “aid and comfort” prong of treason has been interpreted by the Supreme Court of the United States to require proof of four elements: (1) an intent to betray the United States (which can be inferred from), (2) an overt act, (3) witnessed by two people, (4) that provides aid and comfort to an enemy of the United States.
After World War II, a notorious example of treason was Jane Fonda’s 1972 trip to Hanoi. As Erika Holzer and I proved conclusively in our “Aid and Comfort”: Jane Fonda in North Vietnam (http://www.henrymarkholzer.citymax.com/books.html), Hanoi Jane was indictable for, and could have been convicted of, treason because of her activities. Those activities included:
Touring, in the company of North Vietnamese Communist and civilian officials and members of the international press, the “War Crimes Museum, hospitals, dikes, private dwellings, countryside, and a textile center among other places.
Making anti-American, pro-communist propaganda broadcasts on Radio Hanoi, which were replayed to American prisoners of war.
Meeting with seven POWs and haranguing them with anti-American,
pro-Communist propaganda.
Giving interviews to East European and other anti-American,
pro-Communist journalists.
Holding press conferences before Communist and pro-Communist
journalists.
Visiting with high-ranking North Vietnamese Communist officials.
Posing, in the company of Communist civilian and military officials and
members of the international press, in the gunner’s seat of a North Vietnamese
anti-aircraft gun while taking sight on an imaginary American airplane.
In all these activities, Fonda relentlessly made anti-American, pro-Communist
statements.
Regrettably, Fonda was not indicted because of political calculations made at the highest level of the Nixon Administration—just as other kinds of political reasons since 1972 prevented treason charges from being brought against a host of other traitors since 1972. For example, charges other than treason were brought against Julius and Ethel Rosenberg, Navy spies in the Walker family, renegade CIA and FBI agents Aldrich and Miller, and Taliban John Walker. And, as of today at least, no charges of any kind have been leveled against The New York Times and other newspapers for their treasonous exposure of three highly secret government programs that served as integral parts of America’s war against Islamic terrorists.
The October 11th indictment of Gadahn in the federal District Court for the Central District of California, however, suggests that political considerations no longer trump the loud dictates of justice.
The Gadahn indictment, only nine pages long, has been brought under 18 United States Code, Section 2381, which is a codification of the constitutional treason provision. The indictment is spare, but powerful.
The government begins with a recitation of the nature of al-Queda. It then alleges that bin Laden and al-Zawahiri have admitted they are the organization’s leaders, and that al-Zarqawi proclaimed he was the al-Queda leader in Iraq.
The indictment’s next paragraphs allege that the United States was attacked on September 11, 2001, that bin Laden admitted the attacks were al-Qaeda operations, that the organization is at war with the United States, that Congress authorized the President to use all necessary and proper force against the perpetrators of the attacks, that in July 2006 bombs were exploded in a London subway station, and that al-Zawahiri admitted those explosions were the work of al-Qaeda. He further admitted that Shehzad Tanweer was one of their operatives.
These allegations are designed to lay a factual basis for the charges that follow. In sum, the indictment alleges that al-Qaeda is a terrorist organization, that its leaders are terrorists, and that the United States is at war with them.
Paragraph 8 contains the indictment’s core allegation:
Beginning on a date unknown and continuing to at least September 11, 2006, defendant ADAM GADAHN, also known as “Azzam al-Ameriki” (“GADAHN”), a citizen of the United States, whose last known place of residence was in Orange County, within the Central District of California, owing allegiance to the United States, knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort, within the United States and elsewhere, with intent to betray the United States. In so doing, GADAHN committed the following overt acts witnessed by two or more witnesses. (My emphasis.)
All the requisite allegations for indictment/conviction of treason appear in this one paragraph: intent to betray the United States, by overt acts, witnessed by two or more people, giving and comfort to the enemy.
As to the requisite overt acts, the indictment sets forth five al-Qaeda video broadcasts made by Gadahn.
In the October 27, 2004 video, Gadahn acknowledged that he “has joined a movement waging war on America and killing large numbers of Americans.” He also made the following statements:
· “Fighting and defeating America is our first priority. . . .”
· “September 11th . . . notified America that it’s going to have to pay for its crimes and pay dearly.”
· “Jihad is our path and jihad is the answer.”
· “People of America . . . you too shall pay the price for the blood that has been spilled. . . .”
· “People of America, I remind you of the weighty words of our leaders Sheik Usama bin Laden and Doctor Ayman al-Zawahiri that what took place on September 11th was but the opening salvo of the global war on America. . . . The magnitude and ferocity of what is coming your way will make you forget all about September 11th .”
· “The streets of America shall run red with blood . . . casualties will be too many to count and the next wave of attacks may come at any moment.”
In the September 11, 2005 video, he described the terrorist attacks of four years
earlier as “the blessed raids on New York and Washington.” He also made the following statements:
· “These communiques have been released to explain and propound the nature and goals of the world wide jihad against America and the crusaders and convey our legitimate demands to friend and foe alike, so that the former may join us on this honorable and blessed path, and so that the latter may acknowledge his crimes. . . .”
· “The call has gone out and the era of jihad and resistance has dawned in all its glory. As Sheik Usama has told you repeatedly, your security is dependent on our security.”
· “Yesterday, London and Madrid. Tomorrow, Los Angeles and Melbourne, Allah willing. And this time, don’t count on us demonstrating restraint or compassion.”
· “We love peace, but when the enemy violates that peace or prevents us from achieving it, then we love nothing better than the heat of battle, the echo of explosions, and slitting the throats of the infidels.”
· “When it comes to defending our religion, our freedom, and our brothers in faith, every one of us is Mohammed Atta, every one of us is Jamaal Lindsay, and every one of us is Mohammed Boyeri.”
In the July 7, 2006 video, there were statements by Usama bin Laden, Ayman al-Zawahiri, AbuMusab al-Zarqawi, and Shehzad Tanweer. In that video, Gadahn referred to the recent capture and execution of two American servicemen in Iraq. He also made the following statements:
· “So after all the atrocities committed by America . . . why should we target their military only?”
· “It’s hard to imagine that any compassionate person could see pictures, just pictures, of what the Crusaders did to those children, and not want to go on a shooting spree at the Marines’ housing facilities at Camp Pendleton.”
· “When we bomb their cities and civilians like they bomb ours, or destroy their infrastructure and means of transportation like they destroy ours, or kidnap their non-combatants like they kidnap ours, no sane Muslim should shed tears for them. And they should blame no one but themselves.”
In the September 2, 2006 video, Ayman al-Zawahiri also appeared and addressed “the American people in particular and all Western peoples in general.” Al-Zawahiri introduced Gadahn as “our brother Azzam the American” and explained that Gadahn “talks to you as one concerned about the fate which awaits his people.” Al-Zawahiri urged Americans to listen to Gadahn “because what he is talking to you about is serious and significant. He is talking to you about the fate which awaits every human, an extremely grave issue in which there is no joking, procrastination, or backtracking.” Gadahn also made the following statements:
· “So if you want to be on the winning side in this life and the next, and if you want your resistance to Crusader tyranny to truly count, then take the simple step I have just outlined . . . . We send a special invitation to all of you fighting . . . in Afghanistan . . . . You know the war can’t be won and that the condition of America’s war machine is going from bad to worse.”
· “You know you’re considered . . . as nothing more than expendable cannon fodder, a means to an end. . . . You know they couldn’t care less about your safety and well being and that the only thing that upsets your leaders when American forces suffer casualties is the damage these casualties do to their popularity and the popularity of the wars they started.”
· “Escape from the unbelieving army and join the winning side. Time is running out, so make the right choice before it’s too late and you meet the dismal fate of thousands before you.”
In the September 11, 2006 video, there were statements by Usama bin Laden and video footage of the World Trade Center attack in 2001. The pictures of the World Trade Center attack were accompanied by the written statement: “The word is the word of the sword until the wrongs are righted.” In that video, Gadahn referred to the United States as “enemy soil” and made the following statements:
· “All the brothers who took part in the raids on America were dedicated, strong-willed, highly motivated individuals with a burning concern for Islam and Muslims.”
· “Look at the pilots, Mohammed Atta, Marwan Shehhi, Ziad Jarrah, Hani Hanjour. All of them had lived and studied in the West. All of them had the world within their reach, if they had wanted it. But how could they live with themselves, if they were to enjoy this worldly life while their Ummah burns.”
· “In hind sight, everything that al-Qaeda was doing was preparation for the Manhattan and Washington raids, and the expected crusader invasion.”
This indictment speaks volumes in what it says, and in what it doesn’t say.
The essential allegations are there: A jury could find from Gadahn’s express
statements (overt acts), or infer from those statements, that he intended to betray the United States, and that in making them he gave aid and comfort to the enemies of the United States. (Obviously, the two-witness rule is easily satisfied.) In those allegations we see little more than a boilerplate treason indictment.
Not so readily apparent, however, is that like the four German (Chandler, Gillars, Best, Burgman) and one Japanese (D’Aquino) propaganda broadcasters, the Gadahn indictment does not allege any overt “acts” other than broadcasting. (As indicated in “Aid and Comfort”: Jane Fonda in North Vietman, she did much more in Hanoi than merely make propaganda broadcasts.)
This is significant because one defense in those prosecutions (one that Tom Hayden unsuccessfully tried to use against me on the O’Reilly TV show) was that the broadcasters were protected by their First Amendment right of free speech—a defense that was, correctly, rejected in the World War II cases, especially Chandler v. United States and Gillars v. United States.
Chandler had argued that the overt acts charged in the indictment should not have been allowed to go to the jury. In a defense that would reappear in later broadcast treason cases, Chandler maintained that“mere words, the expression of opinions and ideas for the purpose of influencing people, cannot constitute an overt act of treason; that [he] had a right to broadcast, or otherwise disseminate to the American people, the ideas which coincided with the Nazi propaganda line; and that therefore his preliminary steps to that end – his attendance at conferences of commentators, his preparation of commentaries, his speaking into a microphone to make recordings – cannot be treasonable acts.”
The First Circuit Court of Appeals rejected this argument:
There are occasional statements to be found in the books to the effect that mere words cannot amount to an overt act of treason. * * * That is true in the sense that the mere utterance of disloyal sentiments is not treason; aid and comfort must be given to the enemy. But the communication of an idea, whether by speech or writing, is as much as act as is throwing a brick, though different muscles are used to achieve different effects. One may commit treason by conveying military intelligence to the enemy, though the only overt act is the speaking of words. * * * The significant thing is not so much the character of the act which in fact gives aid and comfort to the enemy, but whether the act is done with an intent to betray. [My emphasis.] In Cramer v. United States the Court said:
On the other hand, a citizen may take actions which do aid and comfort the enemy – and making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength – but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.
The Court of Appeals firmly pointed out that this was not what Chandler was up to in World War II Nazi Germany: “In the present case, however, it cannot be said that what Chandler did was merely exercising his right of free speech in the normal processes of domestic political opposition. He trafficked with the enemy and as their paid agent collaborated in the execution of a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully. We have found no indication of a reluctance on the part of the framers of the Constitution to punish as treason any breach of allegiance involving actual dealings with the enemy, provided the case is established by the required two-witnesses proof. It is preposterous to talk about freedom of speech in this connection; the case cannot be blown up into a great issue of civil liberties.” [My emphasis.]
In Gillars [Axis Sally], the United States Court of Appeals for the District of Columbia Circuit observed that Gillars had taken “part in psychological warfare against [the] United States by participating in recording of radio drama.” The court then added:
While the crime [of treason] is not committed by mere expressions of opinion or criticism, words spoken as part of a program of propaganda warfare, in the course of employment by the enemy in its conduct of war against the United States, to which the accused owes allegiance, may be an integral part of the crime. There is evidence in this case of a course of conduct on behalf of the enemy in the prosecution of its war against the United States. The use of speech to this end, as the evidence permitted the jury to believe, made acts of words. * * * . . . words which reasonably viewed constitute acts in furtherance of a program of an enemy to which the speaker adheres and to which he gives aid with intent to betray his own country, are not rid of criminal character merely because they are words. [My emphasis.]
In light of Chandler, Gillars, and some of the other treason cases, the Justice Department is on solid ground in charging Gadahn’s broadcasts alone as treasonous overt acts.
Another significant fact about the Gadahn indictment relates to an argument made against the Holzers’ “indictment” of Jane Fonda in “Aid and Comfort”: that Vietnam was not a declared war. However, in our book, we proved that a formal declaration of war is unnecessary before a charge of treason can be laid. Here again, the Justice Department is on solid ground in its indictment of Gadahn even though there has been no formal declaration of war by Congress against al-Qaeda.
If Gadahn is found and returned to the United States for trial, he will learn that neither the “free speech” nor the “declaration of war” defense, or any others, will help him—even though we may expect the legal left’s lawyers to defend Gadahn with every dirty weapon in their armory.
It will do them no good. If the United States gets its hands on Adam Gadahn—American spokesman for terrorists, accomplice to mass murderers, traitor to the United States—he will either be convicted by a jury of Americans, or, like that spoiled brat Taliban John Walker, make a plea bargain so as to avoid risking the much deserved death penalty.
And while the case of Islamic Adam is unfolding, we can hope that since the treason taboo has finally been lifted, other indictments will soon follow against those who recently have betrayed America’s secrets—surveillance, secret prisons, terrorist money trails—and who, with the requisite intent and overt acts, have provided “aid and comfort” to the enemies of the United States.”
When Does Speech Become Treason?
When Michael Moore’s twisted anti-Bush jeremiad, Fahrenheit 9/11, was released last year, many Republicans, conservatives and generally decent people had strong negative reactions. There were calls by some that Moore be prosecuted for treason, the drumbeat amplifying and echoing as it careened through the World of the Right. The reaction was understandable from an emotional perspective, but made no sense otherwise. Moore’s film was an exercise, albeit a thoroughly dishonest one, in protected speech. While "pure speech" (i.e., speech not combined with action), can mutate into treason, even the worst political speech, standing alone, does not come close to constituting treason.
To answer the question I’ve posited—When does speech become treason?—it is necessary to understand something about the history of speech in the United States.
Of all our constitutional guarantees, the First Amendment’s protection of speech is probably the best known, but the least understood. Contrary to popular belief, the speech guarantee was never intended to allow, nor has it ever allowed, absolutely free speech in America.
The Massachusetts constitution of 1780, adopted only four years after the Declaration of Independence, contained a free speech guarantee. Yet between 1799 and 1803 there were at least three political libel convictions in that commonwealth. The Pennsylvania and Delaware constitutions of 1790 and 1792, respectively, enacted at virtually the same time as the First Amendment (1791), expressly imposed liability for "abuse" of free speech. In the same vein, Virginia—home of Washington, Jefferson, Madison, Patrick Henry, and John Marshall—enacted a law in 1792 dealing with the "abusive" exercise of speech.
Jefferson—author of the Declaration of Independence and third president of the United States—was not a free speech absolutist. When in a letter to Abigail Adams he condemned the notorious Sedition Act of 1798—which punished certain political speech, and actually sent not a few anti-Federalist editors to jail—Jefferson’s opposition was based on a "state’s rights" position, not on any belief in an unconditional right of free speech. On the contrary, he contended that "[t]he First Amendment . . . reflected a limitation upon Federal power, leaving the right [sic] to enforce restrictions on speech to the States." (Emphasis added.)
As to the states, in 1803 Jefferson wrote to the governor of Pennsylvania recommending that "a few prosecutions of the most prominent [Federalist editor] offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like a persecution; but a selected one."
Two hundred years later, oppressive governmental attitudes toward speech had not changed much. During World War I, an antiwar activist named Schenck distributed a handbill. One side claimed that the Conscription Act constituted slavery and involuntary servitude in violation of the Thirteenth Amendment. On the other side there was more of the same, including a paraphrase of the Ninth Amendment ("The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people").
Schenck and others were indicted for conspiring to violate the Espionage Act by causing insubordination and obstructing recruitment. They were not indicted for treason. Their defense was the First Amendment. They were found guilty, and their convictions were unanimously upheld by the Supreme Court. Justice Holmes famously wrote that "[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight . . . ." It is noteworthy that even though Holmes, and his eight Supreme Court colleagues, believed that war justified suspension of free speech in certain contexts, nowhere in the Court’s opinion is there even a hint that Schenck could have been charged with treason.
The Schenck case was important not only because it ruled that during a war even pure speech could be suppressed for the "common good," but because the decision became the foundation for the Court's infamous "Smith Act" decision three decades later.
In that case, members of the Communist Party of the United States were indicted not for having committed violent acts, but with having conspired (i.e., agreed): "(1) to organize as the Communist Party of the United States of America a society . . . of persons who . . . advocate the overthrow and destruction of . . . the United States by force and violence, and (2) knowingly and willfully to advocate . . . the duty and necessity of overthrowing and destroying . . . the United States by force and violence." They were not indicted for treason. As in the Schenck decision, the subject of treason never arose.
And with good reason. Although speech—even political speech, let alone pornography, defamation, and commercial speech—has never been fully free in the United States, it is an impossible stretch, logically and constitutionally, to attempt to punish speech with indictment and conviction for treason.
There are just three crimes expressly mentioned in the Constitution.
Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy, but neither offense is actually defined.
However, Article III, Section 3, spells out that: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Not until 1945 did the Supreme Court of the United States review a treason conviction. Cramer v. United States was the first. Seven other cases followed, two in the Supreme Court and five in United States courts of appeal: Haupt v. United States, Chandler v. United States, Gillars v. United States, Best v. United States, Burgman v. United States, D’Aquino v. United States, Kawakita v. United States.
Cumulatively, in these eight decisions arising from World War II the federal courts established that for a prosecutor to obtain a treason conviction he must prove four elements beyond a reasonable doubt: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act providing aid and comfort to the enemy.
Note that not one of these essential elements requires a speech component.
Gillars provides an example of what an overt act can consist of in a treason prosecution. The indictment against Gillars alleged, in part:
. . . [t]hat on a day between January 1, 1944 and June 6, 1944, the exact date to the Grand Jurors being unknown, said defendant, at Berlin, Germany, did speak into a microphone in a recording studio of the German Radio Broadcasting Company, and thereby did participate in a phonographic recording and cause to be phonographically recorded a radio drama entitled "Vision of Invasion," said defendant then and there well knowing that said recorded radio drama was to be subsequently broadcast by the German Radio Broadcasting Company to the United States and to its citizens and soldiers at home and abroad as an element of German propaganda and an instrument of psychological warfare. (Emphasis added.)
In Kawakita the Supreme Court of the United States addressed the second requirement for a treason conviction, two-witness proof:
The court of appeals disagreed:
* * * These services consisted not merely of the culminating act of making a recording, but also of the necessary preliminary acts directed to that end. They were all part and parcel of the totality of aid and comfort given by the course of conduct as a whole. Attending a conference of commentators, at the summons of the Chief of the U.S.A. Zone, in order that directives as to the current propaganda line might be relayed and discussed and individual assignments made, could reasonably be found to have been of aid and comfort to the enemy. The proof under overt acts 4 and 5 established Chandler’s participation in two such conferences. (Emphasis added).
At this point it is useful to repeat the constitutional definition of treason: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Which brings us to the most notorious post – World War II case of treason, Hanoi Jane Fonda.
When Erika Holzer and I published "Aid and Comfort": Jane Fonda in North Vietnam several years ago, I appeared on the O’Reilly Factor with Fonda’s former husband and still-apologist, Tom Hayden. After I blasted Fonda for giving aid and comfort to our Communist enemies, all Hayden could stammer in response was that she was exercising her "right to free speech." The facts are otherwise.
Each witness who testified [against Kawakita] to an overt act was, however, an eye-witness to the commission of that act. * * * This overt act . . . was testified to by thirteen witnesses. * * * But they all agreed that [Kawakita] struck Grant. * * * There is no doubt . . . the witnesses were all talking about the same incident and were describing the same conduct on [Kawakita’s] part. (Emphasis added.)
As to the "intent to betray" element of the crime of treason, the Supreme Court in Cramer noted that:
There was ample evidence for the jury that Cramer had a treasonable intent. The trial court charged the jury that "criminal intent and knowledge, being a mental state, are not susceptible of being proved by direct evidence, and therefore you must infer the nature of the defendant’s intent and knowledge from all the circumstances. * * * So if you believe that the defendant performed acts which by their nature gave aid and comfort to the enemy, knowing or believing him to be an enemy, then you must find that he had criminal intent, since he intended to do the act forbidden by the law. * * * The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act . . . . For the same reasons a man cannot slip through our treason law because his aid to those who would destroy his country was prompted by a desire to "accommodate a friend." (Emphasis added.").
The final element of a treason case is that the defendant’s conduct provided "aid and comfort" to an enemy of the United States. In Cramer, the Supreme Court observed that "[t]he very minimum function that an overt act must perform in a treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy." (Emphasis added.) The same was true in Chandler where the court had to decide whether the prosecution adduced enough evidence from which the jury could reasonably have concluded Chandler’s overt act(s) had provided the constitutionally requisite "aid and comfort" to the Nazi regime. Chandler claimed that not one of the alleged overt acts—by themselves—provided aid and comfort to the Nazi’s goals.
In July 1972, while American servicemen were fighting and dying in Vietnam, Fonda traveled to Hanoi, the capital of Communist North Vietnam. Her activities there included not only making propaganda broadcasts (tapes of which were played incessantly to American prisoners of war) but also meeting with senior Communist civilian and military leaders (at which she condemned the United States and lauded the Communists). In addition, she held press conferences (at which she viciously attacked this country and its leaders); she provided the North Vietnamese with "photo opportunities" (the most notorious showed her perched at the controls of an anti-aircraft gun, looking through the gun sight at an imaginary American plane); and she conducted "interviews" with seven American POWs (whom she harangued about their "war crimes").
The Fonda episode provides an eloquent answer to the question posed in this essay: "When does speech become treason?"
It is not when World War I resisters leaflet against recruitment. Nor when domestic Communists—whom Justice William O. Douglas called "miserable merchants of unwanted ideas, whose wares remain unsold"—agree to organize, and, later to advocate. And in today’s America, it certainly is not when an intellectually sleazy propagandist like Michael Moore creates a Goebbels-like filmic distortion of his political opponents and their beliefs.
Speech becomes treason when it transcends mere words, ceasing to be communication alone, and satisfies the four requisites demanded by the Supreme Court: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act providing aid and comfort to the enemy.
Thus, while the Michael Moores receive a free speech pass, the Fondas do not. Nor should have the most recent American to escape a treason indictment, Taliban John Walker. Some of his apologists and defenders claimed that Walker’s sojourn with the Taliban was merely the exercise of a constitutional right akin to free speech—namely the right of association, also guaranteed by the First Amendment.
Here is just some of what Walker did:
He crossed from Pakistan into Afghanistan to join the Taliban.
He presented a letter of introduction to the Taliban telling them that he, an American, wanted to fight for them.
He agreed to al-Qaeda training, knowing that the terrorist organization intended to kill Americans.
He traveled to, and stayed in, a bin Laden guest house.
He trained at an al-Qaeda camp, knowing that bin Laden had sent some fifty terrorists on suicide missions against the United States.
He met personally with bin Laden, receiving the terrorist’s thanks for having joined jihad.
He met with a senior al-Qaeda leader to discuss where he would fight.
He traveled to Kabul, where he was issued a weapon.
He marched, armed, to the front with approximately one-hundred-fifty non-Afghan fighters under the command of an Iraqi.
He fought Northern Alliance troops
He was under arms for four or five months.
He remained with his fighting comrades after learning about the terrorist attacks of September 11, knowing that bin Laden had planned the attacks, that additional attacks were planned, and that the terrorist training camps were sending troops to the front to protect bin Laden.
He remained with his fighting comrades from October through December 2001, after learning that United States military forces and other United States nationals were fighting in support of the Northern Alliance in its war with the Taliban and al-Qaeda.
He retreated to Kunduz with his fighting comrades, surrendered, and was trucked to the Qala-i Janghi prison.
He was in the prison, and complicit, when Taliban detainees attacked CIA agent Mike Spann and his colleague, overpowered the guards, armed themselves, and killed Spann.
He retreated, though wounded, with other detainees to a basement. He remained in the basement for about a week with other Taliban and al-Qaeda fighters, until forced out
.
Applying these facts to the Supreme Court’s four-element legal template for the crime of treason, Walker could have been indicted for, and convicted of, that crime. Surely, a jury could have found in Walker’s conduct at least one overt act. Surely, from that act, a jury could have inferred that Walker possessed the requisite intent to harm the United States. Surely a jury could have concluded that the overt act(s) provided aid and comfort to an enemy of the United States. And surely—somewhere among the countless members of the United States military and CIA, FBI agents, troops of the Northern Alliance, American and foreign journalists, Taliban fighters, and even al-Qaeda terrorists—federal prosecutors could have found two witnesses to at least one of Walker’s overt acts.
Just as Hanoi Jane Fonda is the poster girl for treason during the Vietnam War era, Taliban John Walker is the poster boy for treason during the current War on Terror.
Yet neither of them were indicted for treason, even though whatever speech (or association) they engaged in far transcended mere words, ceasing to be communication alone, and satisfying beyond a reasonable doubt the four requisites demanded by the Supreme Court for a treason conviction: (1) an overt act, (2) testified to by two witnesses, (3) manifesting an intent to betray the United States (which can be inferred from the overt act itself), (4) the act providing aid and comfort to the enemy.
Because Fonda and Walker crossed the bright moral and legal line separating speech from treason, they should have been indicted for, and convicted of, the latter. In not doing so, our government twice sent the wrong message.
If I have one regret from my radical years, it is that this country was too tolerant towards the treason of its enemies within. If patriotic Americans had been more vigilant in the defense of their country, if they had called things by their right names, if they had confronted us with the seriousness of our attacks, they might have caught the attention of those of us who were well-meaning, if utterly misguided. And they might have stopped us in our tracks. (David Horowitz, president of the Center for the Study of Popular Culture, editor of Front Page Magazine—and former co-editor of the Sixties-era Ramparts magazine; emphasis added.)
While the reader ponders the serious implications of that revelation, I would add only a few words, written some five hundred years ago: "Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason."
Nor should we call it speech.
DISSENT OR TREASON?
Our sewers are yet again spewing the rant of anti-American Leftists. It was bad enough in the Sixties and Seventies when the America-haters crippled our efforts to defend South Viet Nam. Now they are at it again. Only one example of literally hundreds: six days after the slaughter of thousands of innocent Americans, the Left, its fellow travelers, and its dupes, held a "teach-in" at the University of North Carolina billed as "Understanding the Attack on America: an Alternate View." That "view" is that "we deserved what we got." Why? Because — and this is a clear implication of their "alternate" view — of our Constitution and Bill of Rights, our democracy, our capitalist economic system, our Western values, our having saved the world at least twice in the past hundred years. In short, America deserved to be attacked by terrorists because America is America.
Much is being said, and can be said, about this obscene view and those that entertain it. But what has not yet been noted about what the America-haters are saying is the free speech implication and its relationship to the law of treason.
The fact is that the America-haters, no matter how malevolent and odious their motives and words, are exercising a right recognized and protected by the Constitution of the United States of America — a right neither recognized nor protected by the regimes the America-haters apparently revere. A right, when exercised, which those regimes respond to with prison and often death.
But there is another point here. Understandably, as many Americans hear the rant of this small minority of their fellow citizens, there are (and increasingly will be) cries of "treason." If meant literally, this charge paints with too broad a brush.
There are three crimes expressly mentioned in the Constitution, only one of which is actually defined. Article I, Section 8, gives Congress power to punish counterfeiting, and to define and punish piracy; neither is actually defined. However, Article III, Section 3, provides that: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
As we explain in our forthcoming book "Aid and Comfort": Jane Fonda in North Viet Nam (see www.Hanoijane.net), the Supreme Court of the United States, has interpreted the treason section to require four elements for indictment and conviction: (1) an intent to betray the United States, (2) an overt act, (3) proved by two witnesses, (4) providing aid and comfort." In Fonda’s case, she traveled to North Viet Nam during hostilities, made broadcasts (tapes of which were relentlessly played to our POWs), held press conferences, provided photo ops for the Communists, attacked the United States, exploited American prisoners of war, fraternized with North Vietnamese military and civilian leaders — and was thanked for her efforts by Communist leaders. This is why "Aid and Comfort" concludes that, given the law of treason and given Fonda’s conduct, there was more than sufficient evidence to support an indictment and conviction for treason.
Not so for today’s America-haters. So far at least, all they have done is speak. The essential elements for the Constitutional crime of treason are not there. Only those who arguably cross that line and commit overt acts with an intent to betray the United States by giving aid and comfort to our enemies fit within the constitutional definition of treason.
For those who dare to cross this line, we must heed the words just written by David Horowitz in his "Open Letter to ‘Anti-War’ Demonstrators": " If I have one regret from my radical years, it is that this country was too tolerant towards the treason of its enemies within. If patriotic Americans had been more vigilant in the defense of their country, if they had called things by their right names, if they had confronted us with the seriousness of our attacks, they might have caught the attention of those of us who were well-meaning, if utterly misguided. And they might have stopped us in our tracks."
To this, we would add words written five hundred years ago: "Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason."
Not yet.
SEDITIOUS CONSPIRACY
A federal statute stands in for the constitutional crime of treason
A symposium entitled "The Future of Treason"—with David Horowitz, Jamie Glazov, Andrew McCarthy (lead prosecutor in the first World Trade Center bombing case), and me, was recently published in this magazine. While I argued (as I have been for years) that the government should have made more use of treason prosecutions (e.g., Hanoi Jane Fonda and Taliban John Walker-Lindh), Mr. McCarthy argued forcefully that given some of the inherent problems in indicting for that crime (which I acknowledged), it was just as efficacious (if not more so) for the Department of Justice to use the federal "seditious conspiracy" statute (18 United States Code, Section 2384) as he had done in the early Nineties. That section provides:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. (Emphasis added).
At almost the same time we were having our symposium discussion, federal prosecutors in California announced the indictment of four alleged terrorist plotters. They have been charged with conspiring to kill members of the United States government uniformed services and foreign officials, interference with commerce by means of robbery, conspiracy to possess and discharge firearms in furtherance of crimes of violence, using and carrying a firearm in connection with a crime of violence, aiding and abetting—and "conspiracy to ‘levy war’ against the United States government through terrorism."
Because of the "levy war" similarity, there has been some confusion since the indictment came down about whether the defendants have been charged with treason, and, if not, what the government must prove in order to convict the four.
When the United States Court of Appeals in Mr. McCarthy’s "blind sheik" case upheld the defendants’ convictions, it understood very well how treason and seditious conspiracy differ and, thus, what is (and is not) needed for a seditious conspiracy conviction.
Essentially, the "blind sheik" defendants had argued that for the government to convict for seditious conspiracy it had to prove the "conspiracy to levy war" count of the indictment by the two-witness proof required by the Treason Clause of the United States Constitution.
The Court of Appeals ruled that the Treason Clause did not apply to the seditious conspiracy prosecution because the latter differed from the former "not only in name and associated stigma, but also in its essential elements and punishment."
To begin with, while treason carries considerable historical baggage that might put off modern juries (e.g., immolation, drawing-and-quartering), seditious conspiracy does not.
Second, while conviction of treason requires two-witness proof, seditious conspiracy does not.
Third, while a treason conviction can be punishable by death, a seditious conspiracy sentence can not be greater than twenty years.
Fourth, while the crime of treason contains two kinds of violation—levying war, and giving aid and comfort—seditious conspiracy contains at least a dozen.
Fifth, while treason can be committed by a single person (e.g., Fonda, Walker-Lindh), seditious conspiracy requires "two or more persons."
So much for any contention that treason and seditious conspiracy are, in essence, the same crime.
That leaves the "conspiracy" part of the crime to consider. To prove a federal conspiracy, the government need only prove an agreement between at least two people to commit a federal crime, and that any one of them performed an act—even a perfectly legal act—in furtherance of that agreement. Once there’s an appropriate agreement and an act, there has been a consummated conspiracy. Nothing more need happen for a jury to convict.
The indictment charges that the four defendants "did knowingly, willfully, and unlawfully combine, conspire, confederate, and agree together . . . to levy a war against the Government of the United States through terrorism, and to oppose by force the authority thereof," it proceeds to elaborate the nature and scope of that agreement, and to allege no less than twenty-nine overt acts (any one of which would be sufficient) done in furtherance of the conspiracy.
Where, then, does that leave Messrs. James, Washington, Patterson and Samana on the seditious conspiracy count of the indictment? The short answer is, dead in the water—if the government can prove that the four agreed to commit terrorism, including murder, by such alleged conduct as surveillance of military targets, domestic synagogues and Israeli targets; procurement of weapons and firearms training; and gas station armed robberies to obtain funds; and if the government can prove such overt acts as recruitment, research, robbery, weapons purchase, and preparation of a hit list. Then, the four will be convicted, just as was the "blind sheik" and his cohort a decade ago.
Based on the indictment’s specificity as to both agreement and overt act, it seems certain that the government will be able to convict—or, if the defendants are smarter than they have been so far, they will plead out.
Given that one way or the other the defendants are going down for the count, it is fitting to close on one allegation of the indictment (paragraph 11, b): "In or about December 2004, defendant Washington advised defendant James that he was prepared to follow defendant James to victory or martyrdom."
There is no doubt which it will be for all four of the defendants—and for the many others who, thanks to the seditious conspiracy statute, will follow them into America’s federal prisons, not to emerge, if at all, for a very long time.
UNITED STATES v. LYNNE STEWART, ANNOTATED
Reading the recent indictment of self-described "radical human rights attorney" Lynne Stewart – who’s half-correct: she’s a radical lawyer, but not a human rights attorney – is a terrifically satisfying experience.
It’s about time the United States Department of Justice came down on one of the fifth column lawyers who abuse the American legal system to harm our country by providing aid and comfort to its enemies. While Stewart has been doing just that for years, not until now has the government moved against her.
There is much to be revealed about these lawyers – Michael Ratner, Stanley Cohen, Susan Tipograph, among others, and about those who have come to Stewart’s defense. Soon those stories will be told. But for now, I want to discuss only the indictment against Stewart. I intend to dispel any notion that, as she claims, the criminal charges against her are "an obvious attempt by the U.S. government to silence dissent and install fear in those who would fight against the U.S. government’s racism, seek to help Arabs and Muslims being prosecuted for free speech and defend the rights of all oppressed people." BS. That is not what Lynne Stewart has been indicted for.An indictment is a criminal charge, nothing more. It is a syllogism, setting out as one premise the facts, and as another the law. The named defendant is alleged to have done X, which violates law Y. Let’s translate that process into the Stewart indictment, which follows verbatim as it appears on www.lynnestewart.org. (My comments are in bold face).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA
v.
LYNNE STEWART, and others.
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INTRODUCTION
The Grand Jury charges:
Background: The Islamic Group
1. At all relevant times described herein, the Islamic Group, a/k/a "Gama’a Islamiyya," a/k/a "Gama’a al-Islamiyya," a/k/a/ "IG," a/k/a "al-Gama at," a/k/a "Islamic Gama ‘at," a/k/a/ "Egyptian al-Gama’at al-Islamiyya," (hereinafter, "IG") existed as an international terrorist group dedicated to opposing nations, governments; institutions, and individuals that did not share "IG’s radical interpretation of Islamic law. IG considered such nations, governments, institutions and individuals as "infidels," and interpreted the concept of "jihad" (struggle) as waging opposition against infidels by whatever means necessary, including force and violence.
There are four defendants. One with two aliases, one with one, one with none, and Lynne Stewart :
The Islamic Group (IG) was and is a terrorist organization.
the filing of this Indictment, Sheikh Abdel Rahman has been one of the principal leaders of IG, and a high-ranking member of jihad organizations based in Egypt and elsewhere. As a result of that background, Sheikh Abdel Rahman became an "emir," or leader, of IG in the United States. While Sheikh Abdel Rahman exercised leadership, subordinates in IG carried out the details of specific jihad operations and sought to shield Sheikh Abdel Rahman from prosecution. Sheikh Abdel Rahman played a key role in both defining and articulating the goals of IG. Sheikh Abdel Rahman provided necessary guidance regarding whether particular jihad actions, including acts of terrorism, were permissible or forbidden under his extremist interpretation of Islamic law, and at times provided strategic advice concerning whether such actions would be an effective means of achieving IG’s goals. Sheikh Abdel Rahman also recruited persons to IG and solicited them to commit violent jihad actions. Additionally, Sheikh Abdel Rahman served as a mediator of disputes among members/associates of IG and undertook to protect the organization from infiltration by law enforcement.
methodically shot and stabbed a group of tourists visiting an archeological site in Luxor, Egypt. Fifty-eight tourists were killed along with four Egyptians, some of whom were police officers. Before making their exit, the terrorists scattered leaflets espousing their support for IG and calling for release of Sheikh Abdel Rahman. Also, the torso of one victim was slit by the terrorists and a leaflet calling for Sheikh Abdel Rahman’s release was inserted. In a subsequent claim of responsibility, IG stated that the attack was designed to obtain Sheikh Abdel Rahman’s release.
IG opposed the United States for three primary
reasons. First, IG regarded the United States as in "infidel" because the United States was not governed in a manner consistent with IG’s radical interpretation of Islam. Second, IG viewed the United States as providing essential support to other "infidel" governments and institutions, particularly the nation of Israel and the government of Egypt, both of which IG regarded as its enemies. Third, the United States has taken action to thwart IG, including the arrest, conviction and continued imprisonment of IG spiritual leader Omar Ahmad Ali Abdel Rahman, a/k/a "Omar Ahmed Ali," a/k/a "Omar Abdel Al-Rahman," a/k/a "The Sheikh," a/k/a/ "Sheikh Omar" (hereinafter, "Sheikh Abdel Rahman"), a co-conspirator not named as a defendant herein.
IG has forged alliances with other terrorist
organizations, including al Qaeda and the Egyptian Islamic Jihad for the purpose of working together against their perceived common enemies, including, in particular, the United States.
IG opposes the United States because it was and is an infidel nation, which supports other infidel governments – and because the United States sent Sheikh Rahman ("Rahman") to jail.
IG is in league with other terrorists, against the United States.
Role of Sheikh Abdel Rahman
Rahman was a leader of IG.
In October 1995, Sheikh Abdel Rahman was
convicted of engaging in a seditious conspiracy to wage a war of urban terrorism against the United States, which included the 1993 bombing of the World Trade Center and a plot to bomb New York City landmarks, including the United Nations, the FBI building in New York and the Lincoln and Holland tunnels. Sheikh Abdel Rahman was also found guilty of soliciting crimes of violence against the United States military and Egyptian President Hosni Mubarak. In January 1996, Sheikh Abdel Rahman was sentenced to life imprisonment plus 65 years. On August 16, 1000, Sheikh Abdel Rahman’s conviction was affirmed by the United States Court of Appeals for the Second Circuit and, on January 10, 2000, his petition for certiorari was denied by the United States Supreme court. Since in or about 1997, Sheikh Abdel Rahman has been incarcerated at the Federal Medical Center in Rochester, Minnesota.
Rahman was convicted of complicity in the bombing of American targets and solicitation of violence against United States interests. He was put away for so long that he will never be released.
Beginning in 1997, the Bureau of Prisons (at the
direction of the Attorney General) pursuant to 28 C.F.R. 501.3, imposed Special Administrative Measures ("SAM") upon Sheikh Abdel Rahman. Among other things, the SAM limited certain of his privileges, including his access to the mail, the media, the telephone, and visitors, for the purpose of protecting "persons against the risk of death or serous bodily injury" that might otherwise result. In particular, those restrictions prohibited Sheikh Abdel Rahman "from having contact with other inmates and others . . . that could reasonably foreseeably result in the inmate communicating information (sending or receiving) that could circumvent the SAM’s intent of significantly limiting the inmates’ ability to communicate (send or receive) terrorist information." Moreover, the restrictions prohibited Sheikh Abdel Rahman "from passing or receiving any written or recorded communications to or from any other inmate, visitor, attorney, or anyone else" except as authorized by the SAM. In addition, the restrictions prohibited communication with any member, or representative of, the news media. More specifically, as of April 7, 1999, the restrictions provided that "[t]he inmate will not be permitted to talk with, meet with, correspond with, or otherwise communicate with any member, or representative, of the news media, in person, by telephone, by furnishing a recorded message, through the mails, through his attorney(s), or otherwise."
Al[l] counsel for Sheikh Abdel Rahman were
obliged to sign an affirmation, acknowledging that they and their staff would abide fully by the SAM, before being allowed access to Sheikh Abdel Rahman. Counsel [a]greed in these affirmations, among other things, to "only be accompanied by translators for the purpose of communicating with inmate Abdel Rahman concerning legal matters." Moreover, since at least in or about May of 1998, counsel also agreed not to "use my meetings, correspondence, or phone calls with Abdel Rahman to pass messages between third parties (including, but not limited to, the media) and Abdel Rahman."
On or about November 17, 1997, six assassins
The government, fearful that Rahman might enable or direct terrorist operations from his prison, imposed a virtual quarantine on his contact with the outside world.Rahman’s lawyers agreed to the quarantine.
IG Efforts to Secure Rahman’s Release
8. In or about 1996, IG responded to Sheikh Abdel Rahman’s life sentence by issuing a statement that warned that "[a]ll American interests will be legitimate targets for our struggle until the release of Sheikh Omar Abdel Rahman and his brothers" and that IG "swears by God to its irreversible vow to take an eye for an eye."
IG threatened terrorism against "American interests" unless Rahman was released.
In furtherance of that threat and to obtain Rahman’s release, IG murdered tourists in Egypt,
10. On or about September 21, 2000, an Arabic television station, Al Jazeera, televised an interview with Usama Bin Laden (leader of the al Qaeda terrorist organization), Ayman Al-Zawahiri (former leader of the Egyptian Islamic Jihad organization and one of Bin Laden’s top lieutenants), IG leader Rifa’i Taha Musa, a/k/a/ "Abu Yasser al Masri" (hereinafter, "Musa"), and Mohammed Abdel Rahman, a/k/a/ "Asadallah," who is a son of Sheikh Abdel Rahman and is closely associated with al Qaeda, during which they pledged jihad to free Sheikh Abdel Rahman from incarceration in the United States, and that included a statement by Mohammed Abdel Rahman encouraging others to "avenge your Sheikh" and "go to the spilling of blood."
Leading terrorists, including bin Laden, repeated the threat of terrorism unless Rahman was released.
attorney during his 1995 criminal trial in New York and, following the conviction, has continued to act as one of his attorneys. Over the past several years, STEWART, in violation of the SAM in place to limit Sheikh Abdel Rahman’s communication in jail, has facilitated and concealed communications between Sheikh Abdel Rahman and IG leaders around the world. For example, during her May 2000 visit to Sheikh Abdel Rahman at the Federal Medical Center in Rochester, Minnesota, STEWART allowed YOUSRY to read letters from SATTAR and others regarding IG matters and to conduct a discussion with Sheikh Abdel Rahman regarding whether IG should continue to comply with a cease-fire that had been supported by factions within IG since in or about 1998. Moreover, because these discussions violated SAM, STEWART took affirmative steps to conceal those discussions from prison guards. Following this meeting, STEWART announced to the media, in violation of the SAM, that Sheikh Abdel Rahman had withdrawn his support for a cease-fire.
These are facts alleged by the United States Department of Justice against the four defendants. Presumably, the government can prove who these defendants are, and what they did. It is inconceivable that the United States Attorney for the Southern District of New York can’t prove that in violation of the quarantine information flowed from Rahman to IG, and that it was facilitated by the defendants, including Stewart. If the government does prove these facts, then what?
On or about April 24, 2001, an IG representative
in Egypt stated in a press conference that the Islamic world "will not accept the continuation of the insult" to Sheikh Abdel Rahman and "[w]hile the Sheikh’s lawyers want to deal with his case legally, and Islamic Group leaders are displaying self-restraint, it is not ruled out that one or more of the Sheikh’s followers may resort to carrying out operations against U.S. interests in the world to avenge what is happening to this revered scholar."
An IG representative then repeated the threat.
IG in the United States
In furtherance of its terrorist mission, IG managed to violate the quarantine of Rahman in federal prison and received "guidance and direction" from him.
The Defendants
Defendant Ahmed, a communications center for IG worldwide, is a bridge between Rahman and terrorists, which he accomplished by, among other means, relaying messages to and from Rahman through his interpreter and attorneys. Defendant Ahmed also provided financial and other support to IG. Now, we begin to get closer to Stewart.Defendant Yassir, like defendant Ahmed, was a communications facilitator for IG communications, and also provided financial and other support to IG.Defendant Mohammed has been the interpreter between Rahman and his attorneys. That is, between the terrorist prisoner – supposedly quarantined – and Stewart. He is charged with providing assistance to the terrorist IG by acting as a communications bridge between the IG network and Rahman. Which now brings us to the fourth defendant, Lynne Stewart, Esq.Stewart violated the quarantine to which she had agreed, and in so doing enabled Rahman to communicate with IG terrorists around the world, by, among other ways, allowing defendant Mohammed to convey information to, and receive information from Rahman about terrorist tactics. Stewart also acted to conceal defendant Mohammed’s discussions with Rahman from prison guards, and publicly announced information from Rahman in further violation of the quarantine.
COUNT ONE
All the allegations above are as good as being here. No need to explain this.All four defendants conspired to "provide material support and resources" to terrorists. That is, all four defendants agreed that they would do so, and at least one of them did an act in furtherance of that agreement, even a lawful act. It’s important to understand that this count of the indictment does not charge that "material support and resources" were actually given – only that there was a conspiracy to do so.
The Means and Methods of the Conspiracy
How did they implement the conspiracy?
20. Among the means and methods by which the defendants and unindicted co-conspirators, who are both known and unknown, carried out the object of the conspiracy, were the following:
- The defendants and the unindicted co-
conspirators provided communications equipment and other physical assets, including telephones, computers and telefax machines, owned, operated and possessed by themselves and others, to IG, in order to transmit, pass and disseminate messages, communications and information between and among IG leaders and members in the United States and elsewhere around the world.
b. the defendants and the unindicted co-conspirators provided personnel, including themselves, to IG, in order to assist IG leaders and members in the United States and elsewhere around the world, in communicating with each other;
c. the defendants and the unindicted co-conspirators provided currency, financial securities and financial services to IG, so that IG leaders and members could pursue and attain IG’s objectives; and
d. the defendants and the unindicted co-conspirators provided transportation to IG, in order to pass and disseminate oral and written communications and information between and among IG leaders and members in the United States and elsewhere around the world.
Overt Acts
21. In furtherance of the conspiracy, and to effect the illegal object thereof, the following overt acts, among others, were committed in the Southern District of New York and elsewhere:
Efforts to Expand IG in the United States
a. On or about January 26, 1999, an IG leader, who is a co-conspirator not named as a defendant herein ("CC-1"), spoke with SATTAR and asked for SATTAR’s assistance in expanding IG’s presence in the United States.
Sheikh Abdel Rahman’s March 1999 Message Regarding Cease-Fire
b. In or about March 1999, with the assistance of SATTAR, STEWART, and YOUSRY, Sheikh Abdel Rahman issued a statement from jail, directed to IG leader Musa, who is a co-conspirator not named as a defendant herein, in which Sheikh Abdel Rahman advised adherence to the cease-fire and warned "[n]o new agreement (or charter), and nothing should be done without my consultation, or without my knowledge."
Sheikh Abdel Rahman’s March 1999 Message Regarding the Formation of a Political Party
c. In or about March 1999, with the assistance of SATTAR, STEWART, and YOUSRY, Sheikh Abdel Rahman issued a statement from jail to IG members rejecting a proposal that IG form a political party in Egypt.
Sheikh Abdel Rahman’s September 1999 Statement Calling for End to Cease-Fire
d. In or about September 1999, with the assistance of SATTAR, YOUSRY, and others known and unknown, Sheikh Abdel Rahman issued a statement from jail calling for an end to the cease-fire in response to a raid in Cairo, Egypt by Egyptian law enforcement on or about September 8, 1999 that resulted in four IG members being killed. In this statement, Sheikh Abdel Rahman noted, "The Islamic Group committed itself to suspend military operations which were initiated by the brothers in jail, two years ago, but the Egyptian Government continued killing the innocent, and having oppressive military trials." Thus, Sheikh Abdel Rahman stated, "I call on my brothers of the Islamic Group to do a comprehensive review of the initiative, and its results" and "I also call on them to absolve themselves from it."
e. On or about September 20, 1999, during a telephone conversation with Musa, SATTAR stated that the cease-fire should be canceled if necessary to accomplish IG’s goals.
f. On or about November 14, 1999, during a telephone conversation with another individual, SATTAR stated that the cease-fire was not working because it had not succeeded in obtaining the release of IG leaders in prison.
February 2000 Attempted Delivery of Message to Sheikh Abdel Rahman
g. In or about February 2000, with the assistance of SATTAR, YOUSRY, and others known and unknown, Musa attempted to have a message regarding IG activities conveyed to Sheikh Abdel Rahman during a prison visit, but the message was not delivered due to security concerns.
The June 2000 Public Statement Regarding Withdrawal of Support for Cease-Fire
h. On or about May 19, 2000, during a prison visit to Sheikh Abdel Rahman in Minnesota by STEWART and YOUSRY. YOUSRY read letters to Sheikh Abdel Rahman from SATTAR and Musa addressing, among other things, the issue of the cease-fire, while STEWART actively concealed the conversation between YOUSRY and Sheikh Abdel Rahman from the prison guards by, among other things, making extraneous comments in English to mask the Arabic conversation between Sheikh Abdel Rahman and YOUSRY.
i. On or about May 20, 2000, the second day of the prison visit, Sheikh Abdel Rahman dictated letters to YOUSRY and issued his decision to withdraw support for the cease-fire, while STEWART actively concealed the conversation between YOUSRY and Sheikh Abdel Rahman from the prison guards.
j. In or about late May 2000, SATTAR had telephone conversations with IG leaders in which he relayed Sheikh Abdel Rahman’s instructions: (1) escalate the issues in the media; (2) avoid division in the Group’s leadership; and (3) hint at military escalation even if the Group is not ready for military action.
k. On or about June 14, 2000, STEWART released Sheikh Abdel Rahman’s statement to the press and quoted the Sheikh as stating that he "is withdrawing his support for the cease-fire that currently exists."
Sheikh Abdel Rahman’s June 2000 Clarification Regarding Cease-Fire
l. On or about June 19, 2000, SATTAR spoke by telephone with CC-1 regarding Sheikh Abdel Rahman’s withdrawal of support for the cease-fire and the confusion the statement could create.
m. On or about June 19, 2000, one of Sheikh Abdel Rahman’s sons, Mohammed Abdel Rahman, who is a co-conspirator not named as a defendant herein, spoke by telephone with SATTAR and asked SATTAR to convey to Sheikh Abdel Rahman the fierceness of the IG debate about the cease-fire and to ask sheikh Abdel Rahman to calm the situation by supporting the "general group side."
n. On or about June 20, 2000, SATTAR spoke by telephone with Mohammed Abdel Rahman and advised him that a conference call had taken place that morning between Sheikh Abdel Rahman had issued a new statement containing additional points which made clear, among other things, that Sheikh Abdel Rahman was not unilaterally ending the cease-fire, but rather, was withdrawing his support of it and stating that it was up to the brothers in the Group to now reconsider the issue.
October 2000 Ghost-Written Fatwah from Sh
