McCarthyite Smith Act DeJaVu? - Terror Conviction with No Evidence of Terrorism
A Dangerous Mind?
by Andrew F. March
Op-Ed
New York Times
April 22, 2012
http://www.nytimes.com/2012/04/22/opinion/sunday/a-dangerous-mind.html
Late last year, a jury in
29-year-old pharmacist born in
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
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
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
of a jihadi training camp from which they would then proceed
to
bust, and Mr. Mehanna returned home.
Some of his friends continued to look for ways to join
foreign conflicts. One even fought in
Mehanna stayed home, completed a doctorate in pharmacology
and practiced and taught in the
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
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
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."
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
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
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
of a jihadi training camp from which they would then proceed
to
bust, and Mr. Mehanna returned home.
Some of his friends continued to look for ways to join
foreign conflicts. One even fought in
Mehanna stayed home, completed a doctorate in pharmacology
and practiced and taught in the
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
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
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."
Andrew F. March is an associate professor of political science at Yale.
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