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.