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Peter Margulies Previews the Tareq Mehanna Appeal

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Wednesday, November 28, 2012 at 6:42 AM

Peter Margulies of Roger Williams School of Law, writes in with the following preview of the coming Tarek Mehanna appeal. The Mehanna case was the subject of this earlier exchange between Margulies and David Cole.

Terrorism’s on-line profile has triggered robust debate, with Connecticut Senator Joe Lieberman warning of the danger and some commentators, such as Steve Morrison of North Dakota Law School, discounting those risks.  The dividing line can be murky between obnoxious but independent on-line speech supporting terrorism—the digital equivalent of the soapbox speaker in the public square—and speech coordinated with a foreign terrorist group (FTO) such as Al Qaeda to raise money or attract new recruits. The federal statutes barring material support of FTOs criminalize the latter, but permit the former, as the Supreme Court held in the 2010 case of Humanitarian Law Project v. Holder (HLP). Last Monday evening, Boston College Law School sponsored a fascinating panel on Mehanna v. United States, in which the defendant, Tarek Mehanna, is asserting that the U.S. government, the federal district court in Boston, and a federal jury drew the dividing line in a fashion that undermines the First Amendment.

The panel, moderated by Boston College professor George Brown, who has written with great insight on federal courts in terrorism cases, featured Mehanna’s defense lawyers, including appellate counsel Sabin Willett, who has for years represented Guantanamo’s current and former Uighur detainees.  Willett and fellow panelists (and trial counsel) Janice Bassil, Sejal Patel, and John Oh are a vital part of the civil society that David Cole celebrated in a recently posted article (see here for Ken Anderson’s laudatory review).  Indeed, the commitment of these lawyers echoes the courage of that great Boston lawyer of decades ago, Joseph Welch, who stood up to the red-baiting Senator Joe McCarthy, memorably asking the Cold War demagogue, “Have you no sense of decency, sir, at long last?”

The defense lawyers at BC’s panel shared with David Cole a fear that material support laws will reenact McCarthyism’s dreadful mistakes.  Bassil described Mehanna, who grew up in a pleasant but unassuming home in Sudbury, Massachusetts, as a typical teen-ager who loved Nirvana’s “Smells Like Teen Spirit” but eventually became interested in a particular iteration of Islam.  Before starting to study pharmacy, Mehanna took a trip to Yemen.  Bassil acknowledged that the friends who joined Mehanna on the trip traveled to Yemen seeking terrorist training, a felony that the government subsequently charged that Mehanna had also committed. That aspect of the trip was quixotic, since no one found any camps to attend. In any case, Bassil said, Mehanna had gone on the trip for a different reason—he wanted to learn more about Islam. Bassil noted that one of Mehanna’s two friends on the trip, Abou Abousamra, subsequently made his way to Fallujah, Iraq and other hot spots. Abousamra ultimately fled the U.S. and is currently on the FBI’s “Most Wanted” list. 

After returning to the U.S., Mehanna, who had become proficient in Arabic, embarked on the second activity that caught federal investigators’ attention: posting translations of Islamist texts on-line for a web site, At-Tibyan Publications. Although the government has claimed that Mehanna coordinated his translations with Al Qaeda to secure new recruits, Bassil rejected this allegation, describing most of the material Mehanna translated, such as a text called “39 Ways to Serve and Participate in Jihad,” as largely generic in character and already widely available. In searching Mehanna’s hard-drive, the government found numerous thumbnail photos of Osama bin Laden and the September 11 attacks. Many of the photos were introduced as evidence (over the defense’s objections) at trial. Bassil argued that the  sheer plenitude of the thumbnails ensured that their prejudicial impact on the jury exceeded their probative effect. If Bassil is right, the trial court’s admission of the evidence violated rule 403 of the Federal Rules of Evidence, creating grounds for Mehanna’s appeal to the First Circuit. In short, for Bassil, Mehanna’s prosecution was McCarthyism, post-9/11 style—convicting someone for the mere expression of anger at America’s global counterterrorism policy.

After Sejal Patel talked vividly about the challenges of trying a case based largely on the flood of information—some relevant and some not—found on hard-drives that the government would turn over in unpredictable installments, Sabin Willett laid out some of the legal issues that the defense will pursue on appeal. Those arguments turn on the elusive definition of a term used by Chief Justice Roberts in HLP:  coordination. HLP said that conduct “coordinated with” an FTO can be criminalized, even if that conduct involves what would otherwise be protected political speech. Roberts noted, in an example that I’ve praised but David Cole, who argued HLP, has deplored, that those who provide training in nonviolent dispute resolution to a DFTO can help the DFTO offer a “kinder, gentler” face to the world to attract more funds that the DFTO will then use for violence. Willett argued that Mehanna’s conduct was different; Mehanna’s posting of translations did not occur “right across the table” from Al Qaeda’s leadership, either actually or figuratively, and thus did not constitute coordination under the material support law. There is no evidence that Mehanna talked to or corresponded with Al Qaeda leadership, or evidence that he received, let alone acted on, instructions from those leaders. Al Qaeda may have found Mehanna’s work useful in some respect, Willett observed, but that could be true for all kinds of conduct that did not meet the HLP coordination test.

Under the circumstances, Willett suggested, Mehanna’s speech should be protected by the Supreme Court’s canonical holding in Brandenburg that incitements to violence must be intended by the speaker to result in imminent harm, and must have a reasonable likelihood of resulting in harm. Since that is not true for the translations done by Mehanna, Willett concluded, the First Amendment would bar a conviction based on his speech.

In responding to Mehanna’s appeal, the government will doubtless paint a different picture.  Coordination with Al Qaeda does not require acting on the direct orders of core Al Qaeda leadership.  As in more mundane conspiracies involving drugs or gambling, a plot involves both “hub and spokes.” Conspiracies, particularly those involving terrorism, are often far-flung.  Participants in a conspiracy may not know the enterprise’s leaders or all of the other participants.  Indeed, a criminal organization that studiously arranged for all of its minions’ introductions would soon undermine the deniability that enables it to function.

Al Qaeda, as I explained in a recent paper, functions in the same way. Geographic off-shoots of Al Qaeda depend on the core for strategic leadership, for example in the decision to target Western interests. Al Qaeda’s strategy will be a significant input, even when tracing a particular tactical decision back to Al Qaeda’s leadership may be difficult. Some guidance will be top-down, while some operational decisions will be bottom-up, with followers in the field using training and techniques pioneered by Al Qaeda without express authorization.

A reasonable juror at Mehanna’s trial, on the government’s view, could readily have found that Mehanna wanted to coordinate as much as possible with Al Qaeda leadership, particularly on providing religious authorizations that would permit others to fight American troops in Iraq. The jury had sufficient evidence to find that Mehanna traveled to Yemen to seek terrorist training, just as his associate Abousamra did. This window into Mehanna’s motives also casts his translation work in a different light.

The government submitted evidence of top-down Al Qaeda instructions that Mehanna’s colleagues at the Tibyan web site assumed Mehanna would follow. One e-mail submitted at trial noted that Al Qaeda’s on-line media arm, termed the “cloud people,” wanted Tibyan to translate a message from “al doctoor”—Dr. Ayman al-Zawahiri, then Al Qaeda’s second-in-command.  “Let’s get [Mehanna] to edit it,” was the Tibyan administrators’ response. See Government Exh. 427, Trial Transcript (Tr.), I 11/01/11, at 76, 81.  The defense will counter that, (1) there is no evidence that Mehanna actually translated this document, (2) the colloquy is hearsay regarding Mehanna’s role, and (3) in any case, the e-mail is insufficient evidence as a matter of law. The government’s likely response: conspiracy involves agreement, not completed action; hearsay is admissible to prove the nature and scope of a conspiracy; and appellate courts are reluctant to second-guess juries on sufficiency of the evidence, particularly where other evidence supports the jury’s verdict.

Some of the most compelling evidence in the trial is of the bottom-up variety, as Mehanna displayed a detailed knowledge of others’ attempts to join the fight against U.S. troops that suggests specific interactions with those deeply misguided individuals. For example, Mehanna and a Tibyan colleague discussed one Abu Khubayb. Mehanna observed that “Aboo K… told me that he would be going soon [to Iraq].  So maybe he made it.” Mehanna continued, “I just hope he isn’t translating books while he is there… It would be funny [if] in the middle of a battle he remembers that he translated a word wrong.” Mehanna’s Tibyan colleague summed up with the universal on-line expression of hilarity: “LOL.” Government Exh. 153, Tr. 11/23/11, at 98.

Mehanna and his colleague also discussed the sad case of U.S. citizen Ehsanul Sadequee, a young man who sought translations from Mehanna, was arrested in Bangladesh while seeking terrorist training, and subsequently pleaded guilty to material support charges.  Hearing of Sadequee’s arrest, Mehanna expressed frustration and mentioned Sadequee’s nickname, “Ehsan.”  Exh. 528, id. at 99. The defense claims that Mehanna never corresponded with Sadequee, but Mehanna’s use of the nickname suggests that a contrary inference would be reasonable.

Of course, a jury would be free to discount these conversations as reflecting merely casual knowledge of acts otherwise unconnected with Mehanna. However, the government would surely respond that a reasonable juror could also fit this evidence into a mosaic of material support. That mosaic would include the translation from Dr. Zawahiri that Al Qaeda’s “cloud people” requested and that Tibyan’s administrators assumed Mehanna would provide. If one accepts the government’s theory, whether any violence was “imminent” under Brandenburg doesn’t matter. As the Second Circuit Court of Appeals held in the case of the “blind sheikh” Omar Abel Rahman, speech in the course of planning a crime next week or next month is still criminal. (Think of Tony Soprano telling an associate, “I think it’s a good idea that you whack Joey Boots next Tuesday.”)

Reasonable people can differ about the Mehanna case. The defense lawyers at the Boston College panel rightly see their job as probing, poking, prodding, and putting the government to its proof—they clearly believe their efforts should have resulted in an acquittal.  At the panel, they echoed David Cole’s warning that material support prosecutions have become the new McCarthyism. I’m more inclined to view the conviction as analogous to countless conspiracy cases, with no First Amendment frontier being breached. Mehanna’s brief to the First Circuit is due on December 17; I’m sure it will sharpen this already-lively debate.

 

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