Solicitation is still a federal crime — and there’s no requirement that the incitement actually lead to a terrorist act. Moreover, even before anyone in America ever heard of al-Qaeda — even before there was a 9/11, or bombings of Khobar Towers, the U.S. embassies in eastern Africa, and the U.S.S.
Cole — some of us realized that terrorists fueled by viscerally anti-American Islamist ideology, were at war with the United States. And guess what? There’s a statute for that, too: The Civil War–era seditious-conspiracy law makes the waging of such a terror campaign a 20-year felony. And there’s no carve-out for imams.
How was the Blind Sheikh convicted? By presenting to the jury his fiery sermons and private meetings with the faithful, often in mosques where he urged barbarous strikes against America, swaddled in accurate quotations of the Koran and other Muslim scripture. Of course, he claimed that such exhortations were protected speech. That is, he made exactly the same arguments the Islamist Left has spent the last eight years beating into the country, including into the Justice Department and the FBI. But back in 1995, those arguments were seen for the nonsense that they were.
There is no bar to the use of speech as evidence. The First Amendment generally prohibits the criminalization of speech itself — i.e., the act of communicating. But settled law holds that when prosecutors use your speech to prove crimes, there is no First Amendment violation. When the mafia boss tells the button-man “Whack him!” he doesn't get to lodge a First Amendment objection to the introduction of that statement at his murder trial. He’s not being tried for saying “Whack him!” He’s being tried for murder. The statement is evidence.
Nor does the principle change just because the speech happens to implicate religion. In America, you can
believe whatever you want, but your
actions must be lawful. Not surprisingly, the Blind Sheikh contended that his incitements to terror were beyond prosecution because he was practicing his religion: Specifically, he claimed he had simply been performing the traditional role of an Islamic cleric called on to determine whether proposed courses of conduct (in this instance, mass-murder plots) were permissible under Islamic law. Fourteen years ago, that contention was properly seen as frivolous. In America, we are not under sharia law — not yet. There is no religious exception for violent acts, conspiracies, and incitements to violence that violate American law.
So what has happened? Why did we know these rudimentary, commonsense principles in the Nineties but not now? Because incitement explodes the government’s “religion of peace” narrative. The incitement to Islamist terror is Islamic scripture. The Blind Shiekh was not a hypnotist or a particularly compelling speaker. His authority over terrorist organizations was rooted exclusively in his acknowledged mastery of sharia. Islamic scripture was the source of his power over Muslims.
To concede this would be to concede the obvious but unspeakable fact that there is a nexus between Islam and terror. That would harpoon the lovey-dovey dream that Islam and Western democracy are perfectly compatible. It would upset Muslims — especially the well-organized, deep-pocketed Islamic grievance industry. Today’s hip, progressive FBI, like Gen. George Casey’s modern, slavishly “diverse” military, doesn’t want to upset Muslims. Besides souring State Department cocktail parties and drying up funding for presidential libraries, upsetting Muslims would put a damper on our government’s lavish “Islamic outreach” efforts. These initiatives are premised on the delusion that we’ll stop more terror by having unindicted co-conspirators like CAIR teach Islamic “sensitivity” to our agents than by turning our agents loose to investigate CAIR and its ilk.
So the FBI ignores the significance of a terrorist cleric’s influence over an unabashed Islamist in our midst. After all, their contacts seemed to be religious in nature. We’re told, moreover, that we can’t do anything about the anti-American vitriol oozing out of Islamist mosques under the guidance of our friends the Saudis. After all, the vitriol hasn’t yet “crossed the line into material support.” By the time it does, you might have 13 corpses to tend to, but at least there will be lots to talk about at the next outreach conference — or the next time the attorney general
decides to speak at a CAIR-fest.
The post-9/11 era was supposed to be about knocking down walls that obstructed effective counterterrorism. But behold the new wall, more insidious than its suicidal Nineties forerunner: the arbitrary barrier separating terrorism from “protected” incitement — the cagey, generalized, non-specific jihadist rhetoric that is the Islamist cleric’s stock-in-trade. Aside from not being required by law, this new wall will usually mean you can't go after the worst actors (the Islamic authorities and the terrorists they inspire) until after an attack has happened and Americans have been killed.
In other words, be prepared for more Fort Hoods. We’re not in September 10 America. We’ve managed to land in a much more dangerous place.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).< Back 1 2 
