The [Tarek] Mehanna case represented a fundamental departure from the hundreds of domestic terrorism prosecutions in post–September 11 America. Mehanna had not been caught buying weapons from an FBI informant or parking a car bomb in Times Square. The crimes he was charged with centered on what he said and wrote—and why. Mehanna, according to the government, was part of the “media wing of al-Qaeda.” Prosecutors claimed he had lived a “double life”: a “dutiful and scholarly man” whose true self was “angry, callous, and calculating.” They argued that Mehanna’s intent was to inspire jihad through his keyboard—and that, they asserted, made his translations a crime.
But Mehanna never participated in or planned a terrorist act. He never knowingly communicated with terrorists. This was precisely the kind of case that civil libertarians had been warning about since the Patriot Act was passed in 2001. Because of a thin thread linking Mehanna’s translations to al-Qaeda, the government was asserting that the First Amendment did not protect his speech. The case raised, in a new way, the specter of how far the government will go in prosecuting citizens under the guise of keeping us safe. When does political speech cross the line into support for terrorism?
Under traditional (read “pre-9/11”) First Amendment doctrine, [Tarek] Mehanna could not have been convicted even if he had written “39 Ways” himself, unless the government could shoulder the heavy burden of demonstrating that the document was “intended and likely to incite imminent lawless action,” a standard virtually impossible to meet for written texts. In 1969, in Brandenburg v. Ohio, the Supreme Court established that standard in ruling that the First Amendment protected a Ku Klux Klansman who made a speech to a Klan gathering advocating “revengeance”. It did so only after years of experience with federal and state governments using laws prohibiting advocacy of crime as a tool to target political dissidents (anarchists, anti-war protesters, and Communists, to name a few).
But in Mehanna’s case, the government never tried to satisfy that standard. It didn’t show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna’s translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted “material support” to a “terrorist organization.”
[…] The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher , Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda). It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?
The Supreme Court in Holder v. Humanitarian Law Project emphasized, as had the United States government in defending the “material support” statute, that the law does not make it a crime to engage in “independent advocacy” in support of a designated organization’s cause. Writing for the majority, Chief Justice John Roberts strongly implied that this limitation was constitutionally mandated:
The Court also finds it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups.
“Under the material-support statute,” the Court insisted, people “may say anything they wish on any topic.” But apparently not on “jihad.” The prosecutor in Mehanna’s case argued that the translation was motivated by Mehanna’s ideological support of jihadism, and of al-Qaeda in particular. But without coordination, and without delivery of the final product to al-Qaeda or any of its known affiliates, it looks like nothing more than “independent advocacy,” activity that the government said would not, and the Supreme Court implied could not, be punished.
Why should those of us who have no interest in reading “39 Ways to Serve and Participate in Jihad” care? For the same reason that we should care about the prosecution of a Klansman or an anarchist for their speech. History shows that free speech is fundamental to a robust democracy, and that if the government can punish expression because of its political content, it will use that power to go after its enemies. Today’s enemy may be anyone who shows sympathy with jihadism, but who knows who tomorrow’s enemy will be. You don’t need 39 ways to unravel democracy; giving the government the power to penalize the speech it detests will do it in one.
Stephen F. Downs, a lawyer in Albany, N.Y., a founder of Project Salam and the author of “Victims of America’s Dirty War,” a booklet posted on the website, has defended Muslim activists since 2006. He has methodically documented the mendacious charges used to incarcerate many Muslim activists as terrorists. Because of “terrorism enhancement” provisions, any sentence can be quadrupled—even minor charges can leave prisoners incarcerated for years.
“People who have committed no crime are taken into custody, isolated without adequate recourse to legal advice, railroaded with fake or contrived charges, and ‘disappeared’ into prisons designed to isolate them,” Downs told me when we met last week at Brown University in Providence, R.I.
Downs calls the process of condemning people before they have committed a crime “pre-emptive prosecution.” The concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law. […]
“The government lawyers must know these pre-emptive cases are fake,” he said. “They must know they’re prosecuting people before a crime has been committed based on what they think the defendant might do in the future. They defend what they are doing by saying that they are protecting the nation from people who might want to do it harm. I’m sure they’ve been co-opted at least to believe that. But I think they also know that they are twisting the legal concepts, they are stretching them beyond what the framework of the law can tolerate. They have convinced themselves that it is OK to convict many innocent people as long as they prevent a few people from committing crimes in the future. They are creating an internal culture within the Justice Department where there is contempt for the law and for the foundational principle that it is better for one guilty person to go free than that one innocent person is convicted. They must know they do not do justice, and that they serve only ideological ends.”
“So, everything is subjective - even this whole business of ‘terrorism’ and who is a ‘terrorist.’ It all depends on the time and place and who the superpower happens to be at the moment.”
[This] trial was not about my position on Muslims killing American civilians. It was about my position on Americans killing Muslim civilians, which is that Muslims should defend their lands from foreign invaders – Soviets, Americans, or Martians. This is what I believe. It’s what I’ve always believed, and what I will always believe. This is not terrorism, and it’s not extremism. It’s what the arrows on that seal above your head represent: defense of the homeland. So, I disagree with my lawyers when they say that you don’t have to agree with my beliefs – no. Anyone with commonsense and humanity has no choice but to agree with me. If someone breaks into your home to rob you and harm your family, logic dictates that you do whatever it takes to expel that invader from your home.
But when that home is a Muslim land, and that invader is the US military, for some reason the standards suddenly change. Common sense is renamed ”terrorism” and the people defending themselves against those who come to kill them from across the ocean become “the terrorists” who are ”killing Americans.” The mentality that America was victimized with when British soldiers walked these streets 2 ½ centuries ago is the same mentality Muslims are victimized by as American soldiers walk their streets today. It’s the mentality of colonialism.
When Sgt. Bales shot those Afghans to death last month, all of the focus in the media was on him-his life, his stress, his PTSD, the mortgage on his home-as if he was the victim. Very little sympathy was expressed for the people he actually killed, as if they’re not real, they’re not humans. Unfortunately, this mentality trickles down to everyone in society, whether or not they realize it. Even with my lawyers, it took nearly two years of discussing, explaining, and clarifying before they were finally able to think outside the box and at least ostensibly accept the logic in what I was saying. Two years! If it took that long for people so intelligent, whose job it is to defend me, to de-program themselves, then to throw me in front of a randomly selected jury under the premise that they’re my “impartial peers,” I mean, come on. I wasn’t tried before a jury of my peers because with the mentality gripping America today, I have no peers. Counting on this fact, the government prosecuted me – not because they needed to, but simply because they could. - Tarek Mehanna.
Exactly four years ago this month I was finishing my work shift at a local hospital. As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy ” way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard-and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.
The government says that I was obsessed with violence, obsessed with ‘killing Americans.’ But, as a Muslim living in these times, I can think of a lie no more ironic.
Tarek Mehanna’s statement at his sentencing hearing, before being given a 17-year prison term (x)