[Ppnews] Tarek Mehanna - A Dangerous Mind?
Political Prisoner News
ppnews at freedomarchives.org
Sun Apr 22 11:23:37 EDT 2012
A Dangerous Mind?
By ANDREW F. MARCH Published: April 21, 2012
<http://www.nytimes.com/2012/04/22/opinion/sunday/a-dangerous-mind.html?_r=1>http://www.nytimes.com/2012/04/22/opinion/sunday/a-dangerous-mind.html?_r=1
The New York Times
April 21, 2012
A Dangerous Mind?
By ANDREW F. MARCH
LATE last year, a jury in Boston convicted Tarek
Mehanna, a 29-year-old pharmacist born in
Pittsburgh, of material support for terrorism,
conspiring to provide material support to
terrorists and conspiring to kill in a foreign
country, after a 35-day trial in which I
testified as an expert witness for the defense.
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. Mehannas trial, I saw how those same
actions can constitute federal crimes.
Because Mr. Mehannas 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 governments case.
For the government, Mr. Mehannas 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. MEHANNAS 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 governments 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. Mehannas 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 governments 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 governments case rested primarily on Mr.
Mehannas intent in saying the things he said
his political and religious thoughts, feelings and viewpoints.
The prosecutions strategy, a far cry from
Justice Robertss statement that independent
advocacy of a terror groups 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 its 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, its 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 governments
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 governments case against
Mr. Mehannas 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
ones 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 governments 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. Mehannas conviction for speech
and reaffirm the Supreme Courts 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 dont trust
prosecutors with that jurisdiction.
Andrew F. March is an associate professor of political science at Yale.
Freedom Archives
522 Valencia Street
San Francisco, CA 94110
415 863-9977
www.Freedomarchives.org
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