[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. 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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