FALLS CHURCH, Va. (AP) — A judge is considering tossing out parts of a 10-count conviction against an Islamic scholar serving life in prison for persuading some of his followers to travel overseas after the Sept. 11 attacks and try to join the Taliban.
The review in the case of Ali Al-Timimi of Fairfax comes after the Supreme Court on Monday struck down part of a federal law regulating crimes of violence as unconstitutionally vague.
U.S. District Judge Leonie Brinkema issued a show cause order Tuesday giving prosecutors 30 days to explain why she shouldn’t overturn three of the 10 counts on which Al-Timimi was convicted at his 2005 trial.
Vacating those convictions would likely still leave a significant sentence on remaining counts, which include soliciting treason. But the life sentence would be unlikely to survive.
Al-Timimi was indicted in 2004, and prosecutors said the U.S.-born scholar — who had earned his doctorate in computational biology shortly before his arrest — enjoyed rock-star status among his small group of followers.
At a private gathering a few days after the Sept. 11 attacks, Al-Timimi told his followers that an apocalyptic battle between Muslims and the West loomed, and that Muslims were obliged to defend the Taliban if they had the ability to do so, according to trial testimony.
Several members did travel as far as Pakistan and received military training from a militant group called Lashkar-e-Taiba, but none ever actually joined the Taliban.
In the years leading up to Sept. 11, many members of the group had trained for potential holy war by playing paintball in the northern Virginia woods.
Roughly a dozen men were convicted and sentenced for their various roles in the paintball-jihad conspiracy. Several of those who were convicted received sentences of 25 years or more under the same “crime of violence” convictions implicated in Al-Timimi’s case.
But the “crime of violence” statute has been under constitutional assault for several years, and several members of the paintball conspiracy have already been released from jail early as a result of previous court rulings.
The Supreme Court’s 5-4 ruling Monday in U.S. v. Davis, though, directly affects Al-Timimi’s case, according to his lawyer, Jonathan Turley.
The high court “has unequivocally invalidated the … clause that formed the basis for Al-Timimi’s convictions under Counts 1, 7, and 8,” Turley wrote in a brief Monday urging the court to take action.
Justice Brett Kavanaugh, dissenting in the high court case, warned that the decision will likely result in thousands of inmates being released from prison earlier than their original sentence.
“The inmates who will be released early are not nonviolent offenders,” he wrote. “They are not drug offenders. They are offenders who committed violent crimes with firearms, often brutally violent crime.”
Though Al-Timimi never used a gun, he became eligible for prosecution under the crime-of-violence provision because some of those he exhorted to join the Taliban used firearms in their military training with Lashkar-e-Taiba.
Al-Timimi’s case has been up and down through the appellate courts for much of the last 15 years. A broader challenge to his convictions is pending, claiming prosecutors failed to disclose before trial evidence that the government used a northern Virginia cleric named Anwar al-Awlaki as an informant, and that he tried unsuccessfully to lure Al-Timimi into illegal conduct as part of a government sting.
Al-Awlaki later left the U.S. and became a leader in al-Qaeda before he was killed in a U.S. drone strike.
Prosecutors have argued consistently that there is no evidence related to al-Awlaki to which Al-Timimi’s lawyers would have been entitled.