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David Cole and Peter Margulies: An Exchange on Tarek Mehanna

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Sunday, April 22, 2012 at 3:45 PM

David Cole and Peter Margulies both have more to say on the Tarek Mehanna case. Their exchange convinces me that the merits of this First Amendment case are enormously fact-dependent. I will therefore wait, before expressing an opinion, to see the record that emerges in the appellate proceedings.

David writes as follows:

Peter Margulies’ response to my critique of the prosecution of Tarek Mehanna only underscores the dangerous implications of this case for First Amendment freedoms.  The bottom line is that in this case, the government offered no evidence that Mehanna did any translations for or at the behest of Al Qaeda, or that he provided any translation “to” Al Qaeda.  Rather, the government argued that because Mehanna wanted the translations to aid Al Qaeda, that was sufficient to establish liability. That Margulies, who himself has dismissed First Amendment concerns about the material support statute by stressing that it does not prohibit “independent advocacy,” nonetheless sees this as an “easy” case for conviction is deeply disturbing.

In Holder v. Humanitarian Law Project, the Court and the Solicitor General both said that in order to violate the statute, speech must both be provided “to” a designated organization, and coordinated with it.  There was simply no such showing in Mehanna’s case.

Margulies maintains that Mehanna’s translation should be criminalized because it was posted to a chat room “run by persons from Al Qaeda’s network.”  I am aware of no evidence that the chat room was in fact run by Al Qaeda.  “Persons from Al Qaeda’s network”–Margulies’ term, not the government’s, I presume–is an awfully slippery category.  The law does not make it a crime to speak to “persons from Al Qaeda’s network,” or even to Al Qaeda itself, but only to provide material support to Al Qaeda.  Of course, if the government showed that Mehanna knowingly used intermediaries for the purpose of providing material support to Al Qaeda, that might satisfy the statute’s terms, but as far as I can tell, no such case was made.  

Margulies points out that a conspiracy to traffic in narcotics does not require proof of contact with the cartel’s kingpin.  But that is a red herring.  The crime here is conspiracy to provide material support to Al Qaeda. Without an agreement to provide something that constitutes material support to Al Qaeda, there is no crime.  A conspiracy to engage in jihadist advocacy, in the hopes that it will aid Al Qaeda, without more is simply a conspiracy to engage in independent advocacy.  And that is–and could not be–a crime.  The government did not need to show that Mehanna talked to Osama bin Laden, but surely it needed to show that he knowingly sought to provide aid to Al Qaeda.  It never did.  Margulies’ post, like the government’s theory of the case, dangerously employs the term “propaganda” to elide “independent advocacy” and “material support.”  Those kinds of arguments were persuasive in World War I, when citizens were convicted for “aiding the enemy” by speaking out against the war.  I had thought that First Amendment doctrine had advanced since then.

Margulies, in turn, responds as follows:

Contrary to David’s assertions, the government’s proof in Mehanna’s case demonstrated that, (1) Tibyan Publications, where Mehanna posted his material, was run by Al Qaeda, and, (2) Mehanna knew this.  On the first point, the government presented evidence by Evan Kohlmann, an expert whose testimony has been found admissible by numerous trial and appellate courts.  Kohlmann testified that Al Qaeda used sites like Tibyan for recruiting individuals like Mehanna, who according to testimony from a co-conspirator, Daniel Maldonado, traveled to Yemen to seek jihad.  Other testimony showed that Mehanna and co-conspirators considered attacks within the United States.  Driven by his intent to encourage jihad and by requests from the Tibyan site’s higher-ups, Mehanna posted videos of suicide attacks. Later, Mehanna expressed worry that the videos could be traced back to him.  However, he nonetheless hoped the videos would have an “impact” in encouraging violence against the United States.  After his conviction, Mehanna expressed no remorse, telling the judge that he was happy with his actions.

Based on this evidence, David has apparently drawn the inference that Mehanna was a harmless terrorist wanna-be.  The jury disagreed.  David, as an excellent appellate advocate, knows that arguments questioning the sufficiency of the government’s evidence rarely succeed on appeal.  That’s why he is trying to make this case into something it’s not–a poster-child for purported perils to the First Amendment.  In reality, Mehanna’s case is analogous to a simple hypo based on everyone’s favorite TV show, “The Sopranos.”  Suppose Tony told an associate, “I think it’s a good idea if ‘Johnny Boots’ gets whacked.”  The associate then acted on Tony instructions.  At a subsequent trial, Tony might claim that he was merely “expressing his opinion.”  Tony’s First Amendment argument wouldn’t get far, and neither should Mehanna’s.

Cole rounds out the discussion with the following sur-reply:

Once again, Margulies’ response only underscores the paucity of evidence that Mehanna ever coordinated with Al Qaeda or provided it with any material support, but rather engaged in independent advocacy.  Margulies claims the government “demonstrated” that “Tibyan Publications, where Mehanna posted his material, was run by Al Qaeda,” through a government expert, Evan Kohlman, who “testified that Al Qaeda used sites like Tibyan for recruiting individuals like Mehanna.” (I’m quoting Margulies here, because that’s all Margulies gives us.  Notably, he does not quote anything at all from the trial transcript).

Let’s take each of Margulies’ two assertions in turn. And let’s suppose for the purposes of argument that Kohlman said exactly what Margulies says he said.  The claim that Al Qaeda used “sites like Tibyan” does not come close to establishing that Tibyan was “run by Al Qaeda.”  Margulies and I are “using” the Lawfare site to “recruit” adherents to our views about the material support statute and the Mehanna case, but does that mean that either of us runs Lawfare?  Ben Wittes would certainly be surprised to hear that.  My own review of the trial transcript confirms that neither Kohlman nor anyone else testified that Tibyan was run by Al Qaeda.  Not even the government prosecutor made that assertion.  In fact, the only person I know who has made the assertion is Margulies himself, and I very much doubt he has any basis for doing so.

Second, does the evidence show Mehanna knew what Margulies claims to know about who runs Tibyan?  The material support statute requires proof that an individual knowingly provided material support to a designated organization.  The government would have to show, therefore, not only that Tibyan was run by Al Qaeda, but that Mehanna knew that.  Margulies claims that the government demonstrated this fact.  But he points to not a single shred of evidence to support his claim.  At most, he claims that Mehanna hoped his translations would have an “impact.”  But that is true of all speakers, and provides no basis for concluding that Mehanna knew Tibyan was “run by Al Qaeda.”   Indeed, since neither the prosecution nor its witnesses even asserted that Tibyan was run by Al Qaeda, it appears that the only person who “knows” that is Margulies.

Finally, I have not suggested that Mehanna “was a harmless terrorist wannabe.”  (Again, I quote Margulies’ words, who has not quoted any of mine; readers of this exchange will see that here, too, there is no evidence that I actually made that claim).  I did not make that claim.  My claim is that whoever Mehanna is, in a nation that respects the freedom of speech he should not be sent to jail for 17.5 years for independent advocacy.  As John McCain said in another context, it’s not about who they are; it’s about who we are.

UPDATE: A brief follow-up exchange ensued following the posting above. Margulies wrote:

David gives me too much credit for originality when he says I’m the “only person” linking Al Qaeda to Tibyan Publications–home to Tarek Mehanna’s posts urging attacks on U.S. service personnel.  I have company: not just the Justice Department, but also British courts and a wide range of independent journalists.  In 2008, British courts convicted one of Tibyan’s coordinators, Aabid Khan, for conduct that the U.S. would prosecute as conspiracy to commit terrorist acts: Khan had materials that British courts found were “useful for terrorism,” including maps of government and transportation sites in both the US and the UK, and had also distributed an on-line trove of Al Qaeda propaganda.  Khan, who had links with both Al Qaeda and the Kashmir separatist group Lashkar-e-Taiba, was tied to internet recruitment of young people in the UK and U.S.  A Scotland Yard investigator testified at Mehanna’s trial about Mehanna’s repeated contacts regarding Tibyan with a UK individual who with two others was subsequently convicted of acting at Al Qaeda’s request in distributing documents and videos promoting jihad.  The jury that convicted Mehanna merely connected the dots.

Cole, in turn, responded:

Apparently, Margulies realizes that there was no evidence in Mehanna’s trial that Tibyan Publications was “run by Al Qaeda,” or that Mehanna knew it, as he has not cited anything from the trial to support his assertions.  He now resorts to obscure court proceedings in other countries involving other people, as if this is somehow evidence that a jury in Boston that never heard it should consider. Suffice it to note that none of the new, extra-record sources he now cites say that Tibyan is “run by Al Qaeda,” either. Yet he’s confident that this was an “easy case,” with no First Amendment concerns raised.

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