Gag Order Still Shields Would-Be Bush Assassin

(CN) - Journalists cannot disturb a gag order that blocks them from communicating with a would-be presidential assassin, the 5th Circuit ruled.

The government charged Khalid Ali-M Aldawsari, now 22, with attempted use of a weapon of mass destruction in February 2011, claiming that they uncovered his plot to attack on the Dallas home of President George W. Bush.

Born in Saudi Arabia, Aldawsari had been studying English as a second language before transferring to Texas Tech University where he majored in chemical engineering. He then moved on to the business program at South Plains College shortly before his arrest.

An affidavit filed with the government's criminal complaint explains that a chemical supplier tipped off the FBI when Aldawsari tried to buy phenol, an ingredient in explosives.

Aldawsari claimed to be associated with Texas Tech and told the supplier he was conducting "off-campus, personal research," according to the affidavit. Prosecutors say Aldawsari became upset from all the questions regarding his purchase, and he eventually canceled the order.

The FBI says its electronic surveillance of Aldawsari revealed that he emailed himself information on explosives and various targets. His alleged targets included the home of President Bush, hydroelectric dams and nuclear power plants.

During a search of Aldawsari's apartment, the FBI allegedly found chemicals and other materials used to create explosives. The affidavit says the FBI also found a journal that described his plans to carry out terrorist attacks.

Following Aldawsari's arrest, a federal judge blocked the parties, including their representatives and attorneys, from communicating with the media.

Journalist James Clark charged that the gag order violates his First and Fifth Amendment rights. He filed a motion to intervene, which the District Court rejected.

An appellate panel in New Orleans upheld the gag order on Monday.

"The government argues that the District Court was justified in imposing a gag order because it found that there was a substantial likelihood that extrajudicial commentary could compromise Aldawsari's right to a fair trial," Judge Patrick Higginbotham wrote for a three-judge panel. "As the government notes, when the criminal complaint against Aldawsari was unsealed, the allegations generated a good deal of media coverage that highlighted Aldawsari's alleged radical Islamist views, bomb-making activities, and targeting of former President George W. Bush.

"Clark does not appear to contest the District Court's determination that the press attention garnered by the Aldawsari prosecution put Aldawsari's right to a fair trial at risk. Nor does Clark argue that the district court should have taken specific steps other than restraining the trial participants' communication with the press to protect Aldawsari's Sixth Amendment rights. Rather, Clark focuses on the breadth of the order, suggesting that it restricts the speech of 'every person in the entire world who acts on delegated authority for the United States' and anyone elected to a federal office in the United Sates. He argues that the order thus is not narrowly tailored or 'the least restrictive corrective measure.'"

But Clark failed to convince the panel that the order was overly broad, and the judges agreed with the government that "the order has not hindered the press," leaving the journalist's First Amendment rights untouched.

Clark also failed to show that the order deprived him of due process by interfering with his journalism work.

"Individuals possess a liberty interest in pursuing their chosen profession," Higginbotham wrote. "However, Clark has not shown that he has been deprived of pursuing work as a journalist. At most, the gag order in this case limited his access to some information about Aldawsari's case; he may still report on aspects of the case not subject to the gag order, and nothing in the gag order or the court's denial of his motion to intervene prevents him from reporting on other newsworthy issues. More to the point, Clark's argument begs the question of the restraint's legality - there is no constitutional right to pursue a profession in a manner that infringes on the constitutional rights of another citizen."

The government had tried to toss the appeal by challenging Clark's standing, saying he should have filed within 14 days, as a criminal defendant would.

But the federal appeals court took no heed of this claim. "Clark is not a defendant in the underlying criminal case, and while press coverage is a frequent companion to criminal cases, unlike grand jury proceedings, it is not an 'integral part of the criminal process,'" Higginbotham wrote.

"Here, both the government and Aldawsari's counsel issued press releases prior to the district court's entry of the gag order," he added. "Aldawsari's prosecution on terrorism charges is unquestionably newsworthy and of public interest. There is no dispute that, if permitted to do so, Clark will attempt to speak with the parties or parties' counsel or representatives about the case. We agree with Clark that the gag order affected his right to gather news and that he has standing to challenge it."

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