Amicus Brief in al Bahlul by Former Members of the Intelligence Community

Another amicus brief has been filed in the D.C. Circuit appeal of the military commission of Ali Hamza Ahmad Suliman Al Bahlul, this time by former members of the U.S. Intelligence Community. Arguing on behalf of Bahlul and in favor of reversal of the commission's verdict and life sentence, they urge that the speech Al Bahlul is being prosecuted for is protected speech. They summarize their argument as follows:

The First Amendment of the United States Constitution protects the right of Americans to disseminate as well as receive information. The First Amendment is not merely a privilege or right but serves the vital purpose of being a check on the power of government, by allowing for an open and informed debate. An open society, which allows for the free flow of information and ideas, no matter their source and no matter how unpopular, is the bulwark of democracy. With the everincreasing capabilities to transmit information across the world instantaneously, the right to receive information – the right to know – has become critical to our national security. There is a strategic need for and an advantage to having knowledge and information in the maximum number of our citizenry. By having an unfettered access to information we know how the world sees us. This leads to informed debate and aids the development of sound national security and foreign policies. Failing to apply First Amendment protections to the propaganda video created by Petitioner limits the free flow of information and interferes with Americans’ right to know. Furthermore, it does a grave disservice to our national security because of the chilling effect it would have on the generation and receipt of information relied upon by the Intelligence Community.

Open source intelligence, derived from overt non-clandestine sources, is the most significant source of intelligence for our intelligence and law enforcement agents and is the most valuable source of intelligence collection for understanding the motivations of jihadist and other terrorist groups who target America and American interests. Recognizing the value of open source intelligence, Congress created the National Open Source Center under the Central Intelligence Agency for the collection and analysis of open source intelligence. Contrary to public policy however, Petitioner, Ali Hamza Ahmad Suliman al Bahlul (“al Bahlul” or “Petitioner”), is being punished for speech that is and should be protected under the First Amendment. al Bahlul has been sentenced to life imprisonment for creating in Afghanistan in early 2001 a propaganda video directed towards and widely seen by a U.S. audience, titled State of the Ummah. The video was compiled from already publicly available information. It expresses the motivations of and identifies key figures in al Qaeda. Such information is valuable open source intelligence. The future dissemination of valuable information such as this should be encouraged and, at the very least, not prevented.

Should First Amendment protections not apply to State of the Ummah, foreign speakers providing information, whether journalists or jihadists, could be deterred from creating and disseminating such. Limiting Americans receipt of information – the very availability of which is vital to our democracy and national security – violates the First Amendment and undermines intelligence and law enforcement efforts, presenting a danger, worse than the speech itself, to the nation’s security.

Read the prior amici briefs here and here, and al Bahlul's brief here.