Attorneys in terrorism trial spar over Constitution

BOISE – Attorneys on Friday sparred over the role First Amendment protections for free speech would play when jurors begin deliberating next week in the case of accused terrorist supporter Sami Omar Al-Hussayen.

“It is impermissible to base criminal punishment on protected speech,” lead defense attorney David Nevin told U.S. District Judge Edward Lodge. Nevin called the government’s case against the University of Idaho graduate student an attempt to “hook criminal responsibility on the expression of speech.”

But Assistant U.S. Attorney Kim Lindquist argued the defense’s proposed instruction to the jury shifts the focus of the trial on whether the information Al-Hussayen posted on the Internet was protected from whether he knew posting it would foster terrorism.

“This tells the jury they have the right to litigate the legal issue of the First Amendment” when that was not the case the government charged or presented, Lindquist said. “This puts a whole new spin on things.”

Lodge urged the lawyers to find a compromise, but by day’s end Nevin agreed with Lindquist that “we’re just at odds on this particular thing. It’s one of those irreconcilable situations.”

Lodge said he would consider arguments from both sides as he drafted the instructions over the weekend. Closing arguments are set Tuesday, with the case expected to be in the jury’s hands by the end of the day. The trial began April 13.

Al-Hussayen, a 34-year-old Saudi national only months from his doctorate in computer science, is charged with using the Web sites of the Michigan-based Islamic Assembly of North America to encourage people to contribute to or join terrorist groups.

Nevin has maintained throughout that Al-Hussayen just volunteered his skills to keep the Web sites running — and as a concerned Muslim to pass on information about Muslim conflicts in the Middle East, Chechnya and elsewhere.

Lindquist asked Lodge to limit any free-speech instruction to advising jurors that speech is not necessarily protected when it calls for violation of the law.