Betim Kaziu and the First Amendment

Until Thursday, I had never heard of Betim Kaziu.The I took a class to Manhattan to see the Second Circuit Court of Appeals, and we heard oral arguments in his case.

Betim Kaziu

In 2009, the government indicted Kaziu, a Brooklyn resident, for conspiring to travel abroad to fight against US interests. According to the indictment, Kaziu

took steps to continue on to Pakistan to obtain training and other support for violent activities. Kaziu also attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported Al Qaeda and which has been designated as a terrorist organization by the United States Department of State. In addition, Kaziu made efforts to travel to Afghanistan, Iraq, and the Balkans to fight against U.S. armed forces. To that end, Kaziu attempted on multiple occasions to purchase weapons in Egypt. Ultimately, Kaziu traveled to Kosovo, where he was arrested by Kosovar law enforcement authorities in late August 2009.

Note that at no time did Kaziu succeed in any of these plans. The charge was solely that he conspired to do certain things.

In 2011, a jury returned a conviction, and in 2012 Kaziu was sentenced to 27 years in prison. At the sentencing, federal judge John Gleason excoriated Kaziu for showing insufficient remorse for wanting to be a "jihadist."

In his appeal, Kaziu's attorney made two arguments: first, that the government had insufficient evidence, as a matter of law, to convict Kaziu; and second, that he had a First Amendment right to do what he did.

Essentially, the First Amendment argument is that Kaziu never really did anything. He walked around saying that he wanted to do a thing -- kill American soldiers abroad -- but never demonstrated any actual capacity to execute these wishes. Everywhere he went, he failed even to find and join groups that might facilitate his desires. He was arrested in Albania after he made a "martyrdom video," which his attorneys say was "in jest."

That last part is a problem. If law enforcement is to have the ability to prevent terrorist attacks, it probably has to be allowed to intercede once somebody says they are on their way to martyr himself. And claiming that it's all just a joke, after months of travelling around trying to find the chance to become a martyr, is not going to fly.

But I don't feel especially confident about the worthiness of this conviction.* Kaziu is young and an idiot. Foolishness is not a defense, of course, but did the government show that he was a real threat? It does not seem so to me. And the judge's lecture from the bench only sounds like a cranky old man.

*There are other problems, aside from the 1st Amendment claim, that I will get to later.