Thought Crime: The End of the First Amendment
By Tarek Mehanna. Read to Judge O’Toole during his sentencing, April 12th 2012.
In the name of God the most gracious the most merciful.
Exactly four years ago this month I was finishing my work shift at a local hospital. As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy “ way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard—and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.
In the weeks leading up to this moment, many people have offered suggestions as to what I should say to you. Some said I should plead for mercy in hopes of a light sentence, while others suggested I would be hit hard either way. But what I want to do is just talk about myself for a few minutes.
When I refused to become an informant, the government responded by charging me with the “crime” of supporting the mujahideen fighting the occupation of Muslim countries around the world. Or as they like to call them, “terrorists.” I wasn’t born in a Muslim country, though. I was born and raised right here in America and this angers many people: how is it that I can be an American and believe the things I believe, take the positions I take? Everything a man is exposed to in his environment becomes an ingredient that shapes his outlook, and I’m no different. So, in more ways than one, it’s because of America that I am who I am.
When I was six, I began putting together a massive collection of comic books. Batman implanted a concept in my mind, introduced me to a paradigm as to how the world is set up: that there are oppressors, there are the oppressed, and there are those who step up to defend the oppressed. This resonated with me so much that throughout the rest of my childhood, I gravitated towards any book that reflected that paradigm – Uncle Tom’s Cabin, The Autobiography of Malcolm X, and I even saw an ethical dimension to The Catcher in the Rye.
By the time I began high school and took a real history class, I was learning just how real that paradigm is in the world. I learned about the Native Americans and what befell them at the hands of European settlers. I learned about how the descendents of those European settlers were in turn oppressed under the tyranny of King George III. I read about Paul Revere, Tom Paine, and how Americans began an armed insurgency against British forces – an insurgency we now celebrate as the American revolutionary war. As a kid I even went on school field trips just blocks away from where we sit now. I learned about Harriet Tubman, Nat Turner, John Brown, and the fight against slavery in this country. I learned about Emma Goldman, Eugene Debs, and the struggles of the labor unions, working class, and poor. I learned about Anne Frank, the Nazis, and how they persecuted minorities and imprisoned dissidents. I learned about Rosa Parks, Malcolm X, Martin Luther King, and the civil rights struggle. I learned about Ho Chi Minh, and how the Vietnamese fought for decades to liberate themselves from one invader after another. I learned about Nelson Mandela and the fight against apartheid in South Africa. Everything I learned in those years confirmed what I was beginning to learn when I was six: that throughout history, there has been a constant struggle between the oppressed and their oppressors. With each struggle I learned about, I found myself consistently siding with the oppressed, and consistently respecting those who stepped up to defend them -regardless of nationality, regardless of religion. And I never threw my class notes away. As I stand here speaking, they are in a neat pile in my bedroom closet at home.
From all the historical figures I learned about, one stood out above the rest. I was impressed by many things about Malcolm X, but above all, I was fascinated by the idea of transformation, his transformation. I don’t know if you’ve seen the movie “X” by Spike Lee, it’s over three and a half hours long, and the Malcolm at the beginning is different from the Malcolm at the end. He starts off as an illiterate criminal, but ends up a husband, a father, a protective and eloquent leader for his people, a disciplined Muslim performing the Hajj in Makkah, and finally, a martyr. Malcolm’s life taught me that Islam is not something inherited; it’s not a culture or ethnicity. It’s a way of life, a state of mind anyone can choose no matter where they come from or how they were raised. This led me to look deeper into Islam, and I was hooked. I was just a teenager, but Islam answered the question that the greatest scientific minds were clueless about, the question that drives the rich & famous to depression and suicide from being unable to answer: what is the purpose of life? Why do we exist in this Universe? But it also answered the question of how we’re supposed to exist. And since there’s no hierarchy or priesthood, I could directly and immediately begin digging into the texts of the Qur’an and the teachings of Prophet Muhammad, to begin the journey of understanding what this was all about, the implications of Islam for me as a human being, as an individual, for the people around me, for the world; and the more I learned, the more I valued Islam like a piece of gold. This was when I was a teen, but even today, despite the pressures of the last few years, I stand here before you, and everyone else in this courtroom, as a very proud Muslim.
With that, my attention turned to what was happening to other Muslims in different parts of the world. And everywhere I looked, I saw the powers that be trying to destroy what I loved. I learned what the Soviets had done to the Muslims of Afghanistan. I learned what the Serbs had done to the Muslims of Bosnia. I learned what the Russians were doing to the Muslims of Chechnya. I learned what Israel had done in Lebanon – and what it continues to do in Palestine – with the full backing of the United States. And I learned what America itself was doing to Muslims. I learned about the Gulf War, and the depleted uranium bombs that killed thousands and caused cancer rates to skyrocket across Iraq. I learned about the American-led sanctions that prevented food, medicine, and medical equipment from entering Iraq, and how – according to the United Nations – over half a million children perished as a result. I remember a clip from a ‘60 Minutes’ interview of Madeline Albright where she expressed her view that these dead children were “worth it.” I watched on September 11th as a group of people felt driven to hijack airplanes and fly them into buildings from their outrage at the deaths of these children. I watched as America then attacked and invaded Iraq directly. I saw the effects of ‘Shock & Awe’ in the opening day of the invasion – the children in hospital wards with shrapnel from American missiles sticking out of their foreheads (of course, none of this was shown on CNN). I learned about the town of Haditha, where 24 Muslims – including a 76-year old man in a wheelchair, women, and even toddlers – were shot up and blown up in their bedclothes as the slept by US Marines. I learned about Abeer al-Janabi, a fourteen-year old Iraqi girl gang-raped by five American soldiers, who then shot her and her family in the head, then set fire to their corpses. I just want to point out, as you can see, Muslim women don’t even show their hair to unrelated men. So try to imagine this young girl from a conservative village with her dress torn off, being sexually assaulted by not one, not two, not three, not four, but five soldiers. Even today, as I sit in my jail cell, I read about the drone strikes which continue to kill Muslims daily in places like Pakistan, Somalia, and Yemen. Just last month, we all heard about the seventeen Afghan Muslims – mostly mothers and their kids – shot to death by an American soldier, who also set fire to their corpses. These are just the stories that make it to the headlines, but one of the first concepts I learned in Islam is that of loyalty, of brotherhood – that each Muslim woman is my sister, each man is my brother, and together, we are one large body who must protect each other. In other words, I couldn’t see these things beings done to my brothers & sisters – including by America – and remain neutral. My sympathy for the oppressed continued, but was now more personal, as was my respect for those defending them.
I mentioned Paul Revere – when he went on his midnight ride, it was for the purpose of warning the people that the British were marching to Lexington to arrest Sam Adams and John Hancock, then on to Concord to confiscate the weapons stored there by the Minuteman. By the time they got to Concord, they found the Minuteman waiting for them, weapons in hand. They fired at the British, fought them, and beat them. From that battle came the American Revolution. There’s an Arabic word to describe what those Minutemen did that day. That word is: JIHAD, and this is what my trial was about. All those videos and translations and childish bickering over ‘Oh, he translated this paragraph’ and ‘Oh, he edited that sentence,’ and all those exhibits revolved around a single issue: Muslims who were defending themselves against American soldiers doing to them exactly what the British did to America. It was made crystal clear at trial that I never, ever plotted to “kill Americans” at shopping malls or whatever the story was. The government’s own witnesses contradicted this claim, and we put expert after expert up on that stand, who spent hours dissecting my every written word, who explained my beliefs. Further, when I was free, the government sent an undercover agent to prod me into one of their little “terror plots,” but I refused to participate. Mysteriously, however, the jury never heard this.
So, this trial was not about my position on Muslims killing American civilians. It was about my position on Americans killing Muslim civilians, which is that Muslims should defend their lands from foreign invaders – Soviets, Americans, or Martians. This is what I believe. It’s what I’ve always believed, and what I will always believe. This is not terrorism, and it’s not extremism. it’s the simple logic of self-defense. It’s what the arrows on that seal above your head represent: defense of the homeland. So, I disagree with my lawyers when they say that you don’t have to agree with my beliefs – no. Anyone with commonsense and humanity has no choice but to agree with me. If someone breaks into your home to rob you and harm your family, logic dictates that you do whatever it takes to expel that invader from your home. But when that home is a Muslim land, and that invader is the US military, for some reason the standards suddenly change. Common sense is renamed “terrorism” and the people defending themselves against those who come to kill them from across the ocean become “the terrorists” who are “killing Americans.” The mentality that America was victimized with when British soldiers walked these streets 2 ½ centuries ago is the same mentality Muslims are victimized by as American soldiers walk their streets today. It’s the mentality of colonialism. When Sgt. Bales shot those Afghans to death last month, all of the focus in the media was on him—his life, his stress, his PTSD, the mortgage on his home—as if he was the victim. Very little sympathy was expressed for the people he actually killed, as if they’re not real, they’re not humans. Unfortunately, this mentality trickles down to everyone in society, whether or not they realize it. Even with my lawyers, it took nearly two years of discussing, explaining, and clarifying before they were finally able to think outside the box and at least ostensibly accept the logic in what I was saying. Two years! If it took that long for people so intelligent, whose job it is to defend me, to de-program themselves, then to throw me in front of a randomly selected jury under the premise that they’re my “impartial peers,” I mean, come on. I wasn’t tried before a jury of my peers because with the mentality gripping America today, I have no peers. Counting on this fact, the government prosecuted me – not because they needed to, but simply because they could.
I learned one more thing in history class: America has historically supported the most unjust policies against its minorities – practices that were even protected by the law – only to look back later and ask: ‘what were we thinking?’ Slavery, Jim Crow, the internment of the Japanese during World War II – each was widely accepted by American society, each was defended by the Supreme Court. But as time passed and America changed, both people and courts looked back and asked ‘What were we thinking?’ Nelson Mandela was considered a terrorist by the South African government, and given a life sentence. But time passed, the world changed, they realized how oppressive their policies were, that it was not he who was the terrorist, and they released him from prison. He even became president. So, everything is subjective – even this whole business of “terrorism” and who is a “terrorist.” It all depends on the time and place and who the superpower happens to be at the moment.
In your eyes, I’m a terrorist, I’m the only one standing here in an orange jumpsuit and it’s perfectly reasonable that I be standing here in an orange jumpsuit. But one day, America will change and people will recognize this day for what it is. They will look at how hundreds of thousands of Muslims were killed and maimed by the US military in foreign countries, yet somehow I’m the one going to prison for “conspiring to kill and maim” in those countries – because I support the Mujahidin defending those people. They will look back on how the government spent millions of dollars to imprison me as a “terrorist,” yet if we were to somehow bring Abeer al-Janabi back to life in the moment she was being gang-raped by your soldiers, to put her on that witness stand and ask her who the “terrorists” are, she sure wouldn’t be pointing at me.
The government says that I was obsessed with violence, obsessed with “killing Americans.” But, as a Muslim living in these times, I can think of a lie no more ironic.
Does Posting Jihadist Material Make Tarek Mehanna a Terrorist?
By Adam Serwer | December 16 2011 | Mother Jones
Does posting militant videos on the internet make you a terrorist?
For Tarek Mehanna it just might. Arrested in 2009, Mehanna is a Massachusetts resident whom prosecutors describe as a longtime terrorist wannabe. He isn’t just being prosecuted for trying (and failing) to acquire terrorist training in Yemen and lying to federal investigators. He’s also being tried for posting pro-jihadist material on the internet.
Mehanna’s indictment says that since the early 2000s, he and his friends watched extremist videos on the web and discussed going abroad to receive training in Pakistan and later Yemen. When Mehanna and his alleged accomplice finally reached Yemen in 2004, they were turned away by an old man who told them “all that stuff is gone ever since the planes hit the Twin Towers.” Returning home, prosecutors say, Mehanna committed himself to battling the West by other means: spreading Al Qaeda’s ideology to the masses by translating extremist documents and posting terrorist propaganda on the Internet, in the hopes of converting more to the cause.
“This case is being used by the government to really narrow First Amendment activity in dangerous new ways,” says Nancy Murray of the Massachusetts branch of the American Civil Liberties Union. “It might be speech that horrifies people, but it’s the nature of the First Amendment to protect that speech, unless it’s leading to imminent lawless action.”
Civil liberties advocates say the case represents a slippery slope. In the 2010 case Holder v. Humanitarian Law Project, which decided whether or not providing nonviolent aid (such as legal advice) to terrorist groups constitutes material support for terrorism, the Supreme Court ruled that even protected speech can be a criminal act if it occurs at the direction of a terrorist organization. Based on that ruling, you could be convicted of materially supporting terrorism merely for translating a document or putting an extremist video online, depending on your intentions.
“If he’s doing it on behalf of a designated group, he’s providing a service, and that’s the crime,” says Georgetown University law professor David Cole, who argued against the government in Humanitarian Law Project. “It doesn’t matter if the speech is itself violent or nonviolent.” The question is whether Mehanna’s actions were done at the direction of a terrorist group or whether his actions constituted “independent advocacy.”
Convicting Mehanna on conspiracy charges stemming from his alleged attempt to seek terrorist training or lying to investigators is one thing. Convicting him based on his alleged pro-jihadist internet advocacy could establish a legal path to stamping out extremist propaganda on the web. At the same time, in the view of some civil libertarians, the case could narrow the right to free speech by allowing the government to successfully prosecute the expression of radical or unpopular views as a crime. The verdict could come as soon as next week.
The Mehanna prosecution followed a series of terrorist incidents, including the 2009 shooting rampage at Fort Hood in Texas, where the internet played some role in the individual’s radicalization. In September, the Obama administration announced it had killed Anwar al-Awlaki, a radical US-born Imam whose ability to give sermons in colloquial American English made him the symbol of a new era of homegrown extremism. Though administration officials insisted Awlaki’s activities in support of terrorism weren’t merely rhetorical, he was never indicted—his death was approved by a secret national security panel.
“The dominant narrative right now among Western counterterrorism experts is that because Al Qaeda can’t undertake a big attack in the United States, they’re advocating these lone-wolf attacks, and a big part of that is pushing out that stuff online,” says Will McCants, a former counterterrorism official at the State Department. For English-speaking extremists in particular, McCants says, the internet has been a crucial tool for finding kindred souls. Though “radicalization primarily takes place in the physical world,” McCants says, “you can point to a few cases where someone has been radicalized solely on internet material.”
Testifying before Congress in April, FBI Director Robert Mueller warned: “The increase and availability of extremist propaganda in English can exacerbate the problem. Ten years ago, in the absence of the internet, extremists would have operated in relative isolation, unlike today.”
Mehanna’s defense team has argued that his views have been misrepresented and that he doesn’t share Al Qaeda’s extremist worldview. Holding radical or abhorrent beliefs, however, is still protected by the Constitution. The basic legal standard for when speech becomes criminal is referred to as the “Brandenburg test.” Stemming from a 1969 Supreme Court case, the rule essentially stipulates that speech can’t be criminalized unless it is deliberately meant to incite “imminent lawless action” and there’s a reasonable belief that action could take place.
“That’s a very hard standard to meet,” Cole says. “The court saw from experience that prosecutions for advocacy of illegal conduct often became politically motivated prosecution of dissenters where there was no actual nexus to crime.”
But, as Cole points out, the decision in Holder v. Humanitarian Law Project created a key terrorism-related exception making even nonviolent, nonmonetary aid to a terrorist organization a crime.
The government has tried to argue that Mehanna’s speech isn’t protected for two reasons. One, that his actions reflect Al Qaeda’s call for its followers to preach its twisted gospel to Westerners. The second is that Mehanna posted extremist propaganda and responded to requests to translate materials from individuals associated with terror groups.
Scholars of Islamic extremism, however, frequently translate and post jihadist material on the internet for the purpose of study—something Mehanna’s attorneys have noted in their defense.
“The Supreme Court says the law makes a distinction between independent advocacy and advocacy at the direction and control of a group,” Cole says. Prosecuting someone for obeying a “general call” for extremists to spread Al Qaeda’s message, Cole says, seems like a reach.
The indictment alleges that Mehanna edited and translated materials at the request of known terrorists, saying of one video that he hopes it “leads to action.” Whether Mehanna acted on the direct suggestion of a terror group or not could ultimately make a huge difference.
The government has tried to prosecute other people on the basis of online activities in the past—without much success. In 2003, a University of Idaho graduate student named Sami Omar al-Hussayen was prosecuted for administering a website that linked to extremist sermons and jihadist sites that solicited donations to extremist groups.
Hussayen’s attorneys argued that he was a nonviolent man who wasn’t responsible for the material. When it came time to offer up a defense, his attorney relied on one man’s testimony—a former CIA official named Frank Anderson, who testified that people don’t become terrorists just because of what they read on the Internet. Hussayen was ultimately acquitted.
“Recruitment is personal and requires the identification, assessment, and persuasion of ‘candidates,’” Anderson told Mother Jones in an email. “Hussayen was involved in none of that…It’s not that it can or can’t be conducted over the internet.” Mehanna’s defense team is trying a similar gambit, calling former CIA official Marc Sageman to testify that Al Qaeda’s ability to recruit people over the internet is overhyped.
The political landscape has shifted dramatically since Hussayen was acquitted. Since then, the United States has killed at least two American citizens abroad whose roles, it appears, were primarily as Al Qaeda propagandists. Administration officials convicted them in a court of public opinion rather than law, testifying not on the stand but through anonymous statements to reporters. If the prosecution manages to convict Mehanna over posting and translating extremist materials without showing that he was acting on directions from people he believed to be Al Qaeda members, it could open the door to prosecution based on actions that have traditionally been seen as protected speech.
“Is a propagandist for Al Qaeda someone who works with Al Qaeda, or someone who just says positive things about Al Qaeda, or anyone the government has said is furthering the ends of Al Qaeda?” asks the ACLU’s Murray. In the post-Awlaki era, the line between “independent advocacy” and “direction or control” may not matter all that much to a jury. After all, if the government can kill someone for posting extremist sermons on the internet, why can’t it put someone in prison for doing the same thing?