Thursday, April 19, 2012

Post terrorist pamphlet online, get 17 years in prison - UPDATED

The First Amendment apparently has a 9/11 exception.
... on April 12, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to seventeen and a half years in prison for translating “39 Ways [to Serve & Participate in Jihad]” and helping to distribute it online.

As Anthony Lewis was wont to ask in his New York Times columns, “Is this America?” Seventeen and a half years for translating a document? Granted, it’s an extremist text. Among the “39 ways” it advocates include “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin,” and “Have Enmity Towards the Disbelievers.” (Other “ways to serve,” however, include, “Learn to Swim and Ride Horses,” “Get Physically Fit,” “Stand in Opposition to the Disbelievers,” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organizations and scholars routinely translate and publicize jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.
Thank goodness Obama won the election, so civil liberties are safe again.

... Brandenburg v. Ohio:
the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
Hess v. Indiana:
at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.
Holder v. Humanitarian Law Project:
All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we 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.
Abrams v. United States (Holmes, J., dissenting):
In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possible could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.
"A republic, if you can keep it," said Franklin.

(I have always loved that last line of Holmes's dissent.) ... In comments, NMC notes that at least part of the basis for the prosecution rested not on speech alone, but on a bungled attempt to join the Iraq insurgency. And Jane provides a link to Andrew March in the NYT:
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. * * * 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.


  1. This is strange. Hard to understand the law here. Wonder what kind of case his lawyer presented to defend him? Any more info out there?JL

  2. The Holder decision held that donations, which as we know from the "corporations are people" cases are "speech," could be "material support" for terrorism, despite the First Amendment.

    DOJ is now taking that holding to the logical next step, which is that there's no free speech whatsoever if it "materially supports" terrorism.

    By this point, it's unsurprising that Obama lacks principles, but it's still disappointing. Of course, a Romney administration would do the same or worse, plus appointing the kind of judges who would affirm this conviction.

  3. From a philosophical standpoint, this kind of conviction seems to bear out one of my suspicions (meaning that I have not researched it) that as societies grow older and more comfortable, they become more willing to sacrifice freedom in favor of a perceived increase in security.

  4. That is a plausible proposition. In the case of the First Amendment, however - and my grades in Con Law would militate against your taking this very seriously - I thought that speech protections were very weak until rather late in the history of our republic.

    (Holmes himself had upheld a not much less obnoxious conviction in Schenck, which he not very convincingly distinguished in his dissent, while also admitting he'd had a change of mind on the subject.)

  5. Judge Mental, I really think this will be seen as a series of decisions made after World War II to accept greater and greater "security state" and executive power. The mid-to-late 20th Century may be our heyday for First Amendment rights and probably civil rights in general. Perhaps the pendulum can swing back on some of this but I don't see how on executive power-- it's the sort of thing that's "sticky."

    I've read the briefs on the first amendment arguments in this case and am going to try to post them later. The charges divide easily into groups:

    1) Clear first amendment activity that does not incite violence (the translation, lending and borrowing dvds. YES THERE ARE COUNTS CLAIMING LENDING AND BORROWING DVDS IS TERRORIST ACTIVITY, internet chat about jihad)

    2) Stuff that could produce a conspiracy charge because it is so easy to charge conspiracy in federal court and it probably does cross the line (trying to procure guns for a domestic terrorist act, going to Pakistan to try to get training, going to Yemen for the same purpose, all three of which were obviously deeply ineffectual and failed). .

    I'm curious whether the FBI tried a sting on these guys and couldn't pull it off, or what, because these seem to be the sorts they'd have tried that on.

    If I were the judge, I'd say "you can prosecute them on group 2 but not group 1, although you can prove all the speech stuff to show they were trying to be jihadiis on a mission as a part of getting a conviction for the group 2 stuff. But the speech stuff itself is not a crime."

    The Government brief essentially says over and over "speech can too be a crime. And furthermore: CONSPIRACY CONSPIRACY CONSPIRACY." It doesn't really grapple with the issue. But then given the "prosecution wins" presumption in criminal cases, they never seem impelled to try very hard.

  6. The narrowing of the definition of free speech is concerning, but I think there's precedent to be used to bring it back to where it ought to be. What about the broadening of the definition of "terrorism," though? Every single regime involved in the Arab spring immediately labeled all protesters "terrorists." Isn't the real danger that all dissent will eventually be labeled "terrorism"?

    Someone once said that, the way people's minds work, "unprecedented" equals "unlikely," but that is not necessarily true. Just because you've never had your door kicked in by storm troopers, it doesn't mean it can't happen. If you have something of value, and you do not protect it, it will be taken from you.

    If you ignore the health of your democracy, and fail to work to maintain it, it will fall apart. It's no different than a garden that isn't weeded and watered, or a business that doesn't adapt to a constantly changing environment. Bacon said "Things alter for the worse spontaneously, if they be not altered for the better designedly." Or, put another way, "entropy happens."

    I'm not saying the US government is anything like this. Just because I pull onto I55, it doesn't mean I'm going to New Orleans. I'm just saying, if I'm headed to New Orleans, that is the first step I would take. (or second, after getting some beer)

  7. But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document?~Anderson

    This is everyday at the office in the post-WWII New Europe where they lockup historians for publishing the inconvenient facts of WWII. I think that it was coincidental(the historic date being Hitler's birth anniversary,20 September), but Irving has posted to his website the translation of a letter from Chaim Weizmann to Winston Churchill, reminding him of efforts of the elder American Jews of Zion in convincing Wilson to intervene on the side of the Brits in WW1, and promising to do the same for the Brits in the coming WW2. The prize for their efforts was awarded at the 1919 Paris Peace Conference with Brandeis, Frankfruter, Weizmann and Ben Victor Cohen(World Zionist Organization legal counsel)being granted deed and title to Palestine and permitted to draw the boundries for Der Judenstat. Ben Victor Cohen was later to redraw the post-war map for Germany at the Postdam Conference. Weizmann's letter is dated 10SEPT1941, one day before Commander-In-Chief FDR ordered the US Navy and Army Air Force to attack German military vessels in international waters. And one day before Charles Lindberg gave his historic America First "peace" speech at Des Moines, Iowa. And one day before ground-breaking ceremonies for construction of the Pentagon were conducted in DC.

    What is it about 11September?

    I wonder how this will play at the New Republic?


  9. I could never divide myself from any man upon the difference of an opinion, or be angry with his judgement for not agreeing with me in that, from which perhaps within a few days I should dissent myself.~Thomas Browne

    In the spirit of truth. Thank for not taking it down.

  10. That should read 20April, not September.

  11. Well Pug, truth is I've been kinda busy since my glimpse of Phineas & Ferb Saturday morning.

    Granted, America's First Amendment is a better law than the speech codes in Europe, which I posted on a few weeks ago.

    As for conspiracy theories about the creation of Israel, the truth is depressing enough.

    ... Thanks for the link, Jane!

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