By Andrew F. March, The New York Times, April 21, 2012
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| Tarek Mehanna outside of the court room in 2009 |
On April 12, Mr.
Mehanna was sentenced to 17 and a half years in prison. Hearing this, most
Americans would probably assume that the F.B.I. caught a major homegrown
terrorist and that 17 and a half years is reasonable punishment for someone
plotting to engage in terrorism. The details, however, reveal this to be one of
the most important free speech cases we have seen since Brandenburg v. Ohio in
1969.
As a political scientist specializing in Islamic law and war, I
frequently read, store, share and translate texts and videos by jihadi groups.
As a political philosopher, I debate the ethics of killing. As a citizen, I
express views, thoughts and emotions about killing to other citizens. As a
human being, I sometimes feel joy (I am ashamed to admit) at the suffering of
some humans and anger at the suffering of others.
At Mr. Mehanna’s trial, I saw how those same actions can constitute
federal crimes.
Because Mr. Mehanna’s conviction was based largely on things he said,
wrote and translated. Yet that speech was not prosecuted according to the
Brandenburg standard of incitement to “imminent lawless action” but according
to the much more troubling standard of having the intent to support a foreign
terrorist organization.
Mr. Mehanna was convicted and sentenced based on two broad sets of
facts. First, in 2004, Mr. Mehanna traveled with a friend to Yemen for a week,
in search, the government said, of a jihadi training camp from which they would
then proceed to Iraq to fight American nationals. The trip was a complete bust,
and Mr. Mehanna returned home.
Some of his friends continued to look for ways to join foreign
conflicts. One even fought in Somalia. But Mr. Mehanna stayed home, completed a
doctorate in pharmacology and practiced and taught in the Boston area. But the
Yemen trip and the actions of his friends were only one part of the
government’s case.
For the government, Mr. Mehanna’s delivery of “material support”
consisted not in his failed effort to join jihadi groups he never found, nor in
financial contributions he never made to friends trying to join such groups,
but in advocating the jihadi cause from his home in Sudbury.
MR. MEHANNA’S crimes were speech crimes, even thought crimes. The
kinds of speech that the government successfully criminalized were not about
coordinating acts of terror or giving directions on how to carry out violent
acts. The speech for which Mr. Mehanna was convicted involved the religious and
political advocacy of certain causes beyond American shores.
The government’s indictment of Mr. Mehanna lists the following acts,
among others, as furthering a criminal conspiracy: “watched jihadi videos,”
“discussed efforts to create like-minded youth,” “discussed” the “religious
justification” for certain violent acts like suicide bombings, “created and/or
translated, accepted credit for authoring and distributed text, videos and
other media to inspire others to engage in violent jihad,” “sought out online
Internet links to tribute videos,” and spoke of “admiration and love for Usama
bin Laden.” It is important to appreciate that those acts were not used by the
government to demonstrate the intent or mental state behind some other crime in
the way racist speech is used to prove that a violent act was a hate crime.
They were the crime, because the conspiracy was to support Al Qaeda by
advocating for it through speech.
Much of Mr. Mehanna’s speech on Web sites and in IM chats was brutal,
disgusting and unambiguously supportive of Islamic insurgencies in Iraq,
Afghanistan and Somalia. In one harrowing IM chat, which the government brought
up repeatedly during the trial, he referred to the mutilation of the remains of
American soldiers in response to the rape of a 14-year-old Iraqi girl as “Texas
BBQ.” He wrote poetry in praise of martyrdom. But is the government right that
such speech, however repulsive, can be criminalized as material support for
terrorism?
In
the 2010 Supreme Court decision Holder v. Humanitarian Law Project, Chief
Justice John G. Roberts Jr. declared that for speech to qualify as criminal
material support, it has to take the form of expert advice or assistance
conveyed in coordination with or under the control of a designated foreign
terrorist organization. In that decision, Justice Roberts reaffirmed that
“under the material-support statute, plaintiffs may say anything they wish on
any topic” and pointed out that “Congress has not sought to suppress ideas or
opinions in the form of ‘pure political speech.’ ” Justice Roberts emphasized
that he wanted to “in no way suggest that a regulation of independent speech
would pass constitutional muster, even if the Government were to show that such
speech benefits foreign terrorist organizations.”
The government’s case against Mr. Mehanna, however, did not rest on
proving that his translations were done in coordination with Al Qaeda. Citing
no explicit coordination with or direction by a foreign terrorist organization,
the government’s case rested primarily on Mr. Mehanna’s intent in saying the
things he said — his political and religious thoughts, feelings and viewpoints.
The prosecution’s strategy, a far cry from Justice Roberts’s statement
that “independent advocacy” of a terror group’s ideology, aims or methods is
not a crime, produced many ominous ideas. For example, in his opening statement
to the jury one prosecutor suggested that “it’s not illegal to watch something
on the television. It is illegal, however, to watch something in order to cultivate
your desire, your ideology.” In other words, viewing perfectly legal material
can become a crime with nothing other than a change of heart. When it comes to
prosecuting speech as support for terrorism, it’s the thought that counts.
That is all troubling enough, but it gets worse. Not only has the
government prosecuted a citizen for “independent advocacy” of a terror group,
but it has prosecuted a citizen who actively argued against much of what most
Americans mean when they talk about terrorism.
On a Web site that the government made central to the conspiracy
charge, Mr. Mehanna angrily contested the common jihadi argument that American
civilians are legitimate targets because they democratically endorse their
government’s wars and pay taxes that support these wars.
Mr. Mehanna viewed Muslim attacks on foreign occupying militaries as
justified but rejected the Qaeda doctrine that the civilian citizens of a
foreign country at war with Muslims can be targeted. His doctrine was that
“those who fight Muslims may be fought, not those who have the same nationality
as those who fight.”
The centerpiece of the government’s case against Mr. Mehanna’s speech
activities was a translation of a text titled “39 Ways to Serve and Participate
in Jihad.” The government described this text, written by a late pro-jihad
Saudi religious scholar, as a “training manual for terrorism.” It is nothing of
the sort. It is a fairly routine exercise of Islamic jurisprudence explaining
to pious Muslims how they can discharge what many of them believe to be a duty
to contribute to wars of self-defense.
This text does explain that in Islamic law a Muslim may “go for jihad”
or “collect funds for the mujahidin.” But it also explains that, in place of
fighting or sending money, a Muslim can assuage his conscience and take care of
widows and children, praise fighters, pray for fighters, become physically fit,
learn first aid, learn the Islamic rules of war, have feelings of enmity for
one’s enemies, spread news about captives and abandon luxury.
The act of translating this text is far from incitement to violent
action. The text in fact shows Muslims numerous ways to help fellow Muslims
suffering in their own lands, without engaging in violence. Instead of this
common-sense reading, however, the government did something extraordinary. It
used this text of Islamic law to help define for us what should count as a
violation of our own material support law.
Everything Mr. Mehanna did, from hiking to praying, was given a number
in the indictment based on this text as an act of material support for jihad.
For example, his online discussion with a friend about working out and
exercising should, in the government’s words, be “placed next to the directives
in 39 Ways (Step 25: ‘Become Physically Fit’).” Federal prosecutors, in effect,
used a Saudi religious scholar to tell us what our “material support” statute
means.
The Mehanna case presented an excruciating line-drawing exercise. How
pro-Al Qaeda is too pro-Al Qaeda, legally speaking?
We have the resources to prevent acts of violence without threatening
the First Amendment. The Mehanna prosecution is a frightening and unnecessary
attempt to expand the kinds of religious and political speech that the
government can criminalize. The First Circuit Court of Appeals in Boston should
at least invalidate Mr. Mehanna’s conviction for speech and reaffirm the
Supreme Court’s doctrines in Brandenburg and Holder v. Humanitarian Law
Project. Otherwise, the difference between what I do every day and what Mr.
Mehanna did is about the differences between the thoughts in our heads and the
feelings in our hearts, and I don’t trust prosecutors with that jurisdiction.
Andrew F. March is an associate professor of political science at Yale.
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