Peter Margulies of Roger Williams School of Law writes in with the following thoughts on the First Circuit briefing in the Tarek Mehanna appeal:
The federal material support statute forces courts and juries to distinguish independent speech that supports terrorism from speech coordinated with a foreign terrorist group (FTO), such as Al Qaeda. That challenge is front and center in Mehanna v. United States, a case pending in the First Circuit that I posted about in December and in an debate last spring with today’s most tireless free speech advocate, David Cole. On Friday, the government filed a brief that crystallized this crucial issue.
Mehanna has demanded attention because it provides an opportunity to interpret the Supreme Court’s still-controversial 2010 decision in Humanitarian Law Project v. Holder (HLP), in which Brad Berenson and I submitted an amicus brief signed by Bobby, Ben, and others that supported the government (with safe harbors to limit the statute’s scope). In HLP the Court held that Congress could prohibit speech “coordinated” with an FTO. However, Chief Justice Roberts’s opinion for the Court, which I analyzed in a recent article, cautioned that the First Amendment protected independent speech. Mehanna casts a spotlight on the murky dividing line between protected and prohibited activity.
Tarek Mehanna’s conviction for material support, discussed insightfully in a recent paper by George Brown and a recent note in the Harvard Journal of Law and Public Policy, was based on at least one of two alleged conspiracies. One plot arose from a trip to Yemen that the government claimed the defendant undertook to join up with jihadist elements and target U.S. troops. That plot, which could be an independent basis for Mehanna’s conviction, has attracted less attention than the second alleged conspiracy, which began when Mehanna, disappointed in his search for jihadi fighters in Yemen, returned to his native Massachusetts. A that point, Mehanna started translating, editing, and packaging jihadist material for a web site, At-Tibyan Publications (TP), that the government alleges coordinated its work with Al Qaeda. The defendant’s brief, filed in December, asserts that the government’s evidence at trial was insufficient to support Mehanna’s conviction, and that Mehanna did not coordinate his acts with Al Qaeda. The government’s brief insists that Mehanna’s conviction should be upheld because the defendant acted through intermediaries at TP to coordinate with Al Qaeda and thus violated the material support statute.
Mehanna does not dispute that he advocated for violence, although he has argued that his speech was merely abstract advocacy that, according to the Supreme Court’s landmark decision in Brandenburg v. Ohio, constituted protected speech. Brandenburg requires proof that the speaker intended to trigger imminent violence, and that such violence was a probable result of the speech. Mehanna’s appellate team, led by Sabin Willett, who has for years robustly represented Guantanamo’s current and former Uighur detainees, maintains that Mehanna functioned like a journalist or scholar who received material from a variety of sources. Distribution of that material may have had a range of consequences, Mehanna’s brief asserts, but the government could not hold the defendant responsible for those effects, just as the government could not prosecute a journalist for publishing comparable material in a newspaper or magazine. Moreover, Mehanna’s team reminded the First Circuit, most of the material that Mehanna translated was already publicly available in some form.
Where the rubber meets the road in this case is the precise definition of a term Chief Justice Roberts used in HLP: “coordination.” Under HLP, speech done at the direction of or coordinated with a foreign terrorist organization (FTO) designated as such by the Secretary of State isn’t covered by Brandenburg’s broad umbrella. The Court found that the government had a compelling interest in regulating speech emerging from such a relationship with an FTO, thus enabling the material support statute to survive heightened scrutiny. Critics such as David Cole, who argued HLP for the petitioners, have expressed concern that the Court threw a monkey-wrench into modern First Amendment doctrine by upholding regulation of the content of political speech. Chief Justice Roberts justified this apparent departure by citing the special dangers of an ongoing relationship with an FTO.
An FTO can wreak harm through such a relationship, the Chief Justice insisted, even when the other party to the relationship does not intend violence. For example, the Chief Justice reasoned, an FTO can use training in nonviolent dispute resolution to buy time to prepare for greater violence. In packaging itself as a “kinder, gentler” terrorist group, the FTO can also attract funds that it can then divert to violent ends. Since this activity occurs abroad, often in countries that are hostile to the US or unable to control terrorist violence, the US has less ability to deter violence directly than it has with domestic groups (whose speech is still protected by Brandenburg, Chief Justice Roberts observed). However, Chief Justice Roberts noted, these dangers do not apply to speech that is independent of FTOs, which FTOs cannot use as readily for their re-branding, just as federal campaign finance laws distinguish between contributions made in coordination with candidates and contributions made independently.
Mehanna’s brief argued for a very narrow definition of coordination. To be convicted, Mehanna’s team argued, a defendant needed to be “directly engaging with the FTO.” According to Mehanna’s brief, the trial judge’s refusal to so instruct the jury was reversible error. The government’s brief pushes back on this point. It argues that coordination can readily occur “through intermediaries.” Indeed, the government notes, the American view of conspiracy (which has its critics---see Steven Morrison’s excellent new paper here) includes intermediaries as an indispensable element. If acting through intermediaries negated conspiratorial liability, Tony Soprano could have banished his worries about “the feds” through instructions to Paulie Walnuts to assign to a distant “family” member any “whacking” that needed doing. American courts have consistently said that would make things too easy for Tony.
But Mehanna has an answer for my Tony Soprano analogy: Paulie and the underling, Mehanna would say, are “functionally within [Tony’s] command structure,” while Mehanna did not have a comparable role vis a vis Al Qaeda. But that argument, in my view, misapprehends the bounds of the material support statute and the nature of FTOs.
As I explained in a recent paper, terrorist groups like Al Qaeda are often far-flung. Indeed, even ordinary criminal conspiracies often adopt a “hub and spokes” structure in which participants may not know the enterprise’s leaders or all of the other participants. Such groups may not follow a conventional “command and control” model. Similarly, geographic off-shoots of Al Qaeda depend on the core for strategic leadership, for example in the decision to target Western interests. While “core” Al Qaeda leaders like Dr. Ayman al-Zawahiri will guide overall strategy, tracing a particular tactical decision back to Al Qaeda’s leadership may be difficult.
In Mehanna’s case, as the government points out, tracing decisions back to Al Qaeda leadership may be relatively straightforward. Evidence submitted by the government ties Al Qaeda to some administrators at TP. But two caveats are necessary. Those ties did not by any means include everyone who posted on TP---a spectrum of individuals did so, although their views tended to range from those who believed it was OK to target all Americans to those (like Mehanna in some posts) who urged that killing be limited to American military personnel. Of course, either would qualify as terrorism under American law. The second caveat: Media reports had linked TP to Abu Qatada (aka Omar Mahmoud Othman), a militant cleric whom the UK has long sought to deport to Jordan to face trial on terrorism charges. While I said in last year’s Lawfare exchange with David Cole on Mehanna that the government had introduced evidence connecting TP to Abu Qatada, the government actually only showed that Mehanna and a TP associate had expressed admiration for the cleric. Merely expressing admiration for an obnoxious public figure is not a crime, before or after HLP. Rather than focus on Abu Qatada, the government in Mehanna’s trial trained the spotlight on an equally vivid character: Younis Tsouli, a United Kingdom resident who referred to himself as “Terrorist 007.”
Tsouli was an expert in hacking and encryption. “Terrorist 007”’s ties to Al Qaeda were substantial. In one message, Tsouli informed TP that “AQ in Iraq… [wants] you guys to work on translating … their official on-line ebook.” Tsouli pleaded guilty in 2007 to inciting specific acts of terrorism and engaging in massive cyber fraud to finance his operation. In evidence the government introduced at Mehanna’s trial, Mehanna acknowledged that he knew Tsouli.
Evidence at Mehanna’s trial indicated that Mehanna also knew of Al Qaeda’s requests to TP and happily complied. The following e-mail message is at the heart of the government’s case. One of Mehanna’s associates at TP advised him that, “[T]he cloud people are asking us if we can translate this message from the al doctoor regarding curryland.” Need help in breaking the code? Al Qaeda’s media wing was called “As-Sahaab,” which in English is “the cloud.” Who’s “al doctoor”? That would be Dr. al-Zawahiri. (“Curryland” is Pakistan, in case you were wondering.) After learning of this request, Mehanna continued to work with TP administrators on contributions to the site. When asked by a TP associate for production ideas to package the video from “al doctoor,” Mehanna obliged.
There’s more: when an associate said that Mehanna had become part of Al Qaeda’s “media wing,” Mehanna left no doubt about his own aspirations: “[M]an, I don’t think we deserve that title, maybe if we are lucky we get to clean their toilets.” Mehanna also hoped his contributions would have an “impact” not merely on “bedroom mujahideen” who applauded violent jihad from the safety of suburbia, but on those who ultimately “made it” by going abroad to kill Americans.
HLP expressly left open whether “a relationship through an intermediary” could produce “coordination” that violated the material support statute. Unless Chief Justice Roberts wished to dismantle American conspiracy law, the answer has to be “Yes,” at least in some circumstances. Admittedly, as Bobby has written in a now-classic article, the material support statute does push the envelope on conspiracy. However, despite the eloquence and passion that Mehanna’s legal team brings to bear, Mehanna’s case really isn’t that close. There will be a round of reply briefs in Mehanna’s appeal, and then the First Circuit will hear oral argument. Stay tuned.