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It's official. There is a Muslim exemption to the First Amendment.

Posted by Carol Rose, On Liberty  April 12, 2012 05:00 PM

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ACLU of Massachusetts Education Director Nancy Murray contributed the following guest post:

Tarek Mehanna is no David Stone.

David Stone and members of his Hutaree anti-government militia amassed a huge arsenal of weapons, including the ingredients for explosives, and allegedly plotted to kill a police officer and bomb his funeral. A federal judge in Michigan said they were just venting and exercising their First Amendment rights.

Mehanna, a 29-year-old pharmacist from Sudbury, Massachusetts, emailed friends, downloaded videos, translated and posted documents on the web, and traveled to and from Yemen in 2004.

No evidence was presented in court directly linking him to a terrorist group. He never hatched a plot – indeed, he objected when a friend (who went on to become a government informer and has never been charged with anything) proposed plans to stage violent attacks within the United States. He never had a weapon. He did lie to the FBI. And he has just been sentenced by US District Court Judge George O’Toole to 17.5 years in a supermax prison on various material support to terrorism charges.

Over 220 of Mehanna’s supporters in an overflow room watched on a screen as prosecutor Aloke Chakravarty in his pre-sentencing remarks stressed the “gravity” of Mehanna’s offenses. Over a decade ago, he claimed, “this defendant began to radicalize” and to radicalize others to “visit violence” on Americans. Although he failed in his efforts to find a terrorist training camp when he visited Yemen in 2004, he found his niche, the prosecutor stated, serving as the “media wing” of al Qaeda, translating documents, and sharing videos. 

“The impact of the harms created through that work is huge,” Chakravarty asserted.  “We don’t know how many have been radicalized…people around the world are consuming his work…The damage he has done will linger.”

The prosecutor went on at length about Mehanna’s “reticence to assist the government”  - that is, become an informant. He maintained that nothing is wrong with soliciting cooperation if it is necessary to keep the country safe.

Defense attorney Jay Carney countered that Tarek Mehanna was being punished for activity protected by the First Amendment, for translating documents freely available in Arabic on the Internet and for his refusal to be an informant. The government, Carney said, does not want people to be able to read the views that other people hold.  “This case goes further than any other in attacking speech protected by the First Amendment,” and involved important constitutional issues at every turn. 

The attorney asked the judge to focus on “what the defendant did and did not do” – he went to Yemen for one week eight years ago. He refused to go to Iraq with the friend whom the government later enlisted as an informer. He was under close FBI scrutiny for more than eight years – if he was so dangerous, why did the FBI wait so long to arrest him? 

When Tarek Mehanna personally addressed the court he described the moment when he was approached by two federal agents who said he could do things the easy way or the hard way: if he chose the easy way, he would never see the inside of a cell. 

Mehanna then eloquently talked about the world view he adopted during his childhood when he avidly read Batman comics and then books like Uncle Tom’s Cabin and began to see the world in terms of the oppressor and the oppressed. He talked of learning about the struggles against slavery and for civil rights, and how impressed he was by Malcolm X and his transformation from a petty criminal to a devout Muslim.  It was this, he said, that made him look more deeply into Islam and become increasingly devout.

And then he began to look to what was happening to Muslims around the world. He was horrified by the suffering caused by the sanctions on Iraq and Secretary of State Albright’s comment that the death of half a million children because of the sanctions was “worth it.” Deeply angered by the “shock and awe” US invasion, he described how affected he was by atrocities committed by American forces in Iraq and Afghanistan. 

In his view, what the government had really put on trial was his belief that Muslims in other countries had the right to defend their own land from foreign invaders, including Americans. He thinks “one day America will change. One day people will look back with horror at how hundreds of thousands of Muslims were killed by American soldiers.” Meanwhile, he is the one who will go to prison as a “terrorist.” 

The Mehanna case ruling and sentencing suggest that Muslims do not have the right to protected speech, and that “venting” can cost them the long years in prison spared the Hutaree militia.

Not only did the prosecution and judge shun any discussion of what the First Amendment protects and does not protect.   They steered clear of the Supreme Court’s 2010 Holder v. Humanitarian Law Project ruling which criminalizes any kind of “material support” if carried out in connection with a group on the State Department’s terrorism list, while upholding “independent advocacy,” even of the most controversial kind.

The country has clearly traveled a long way since an Idaho jury in June 2004 found that the web activity carried out by a Saudi graduate student, Sami Omar Al Hussayyen, was protected by the First Amendment. He had been indicted in a blaze of publicity for setting up websites for Islamic organizations and posting inflammatory messages on the Internet.   

After a seven-week trial, where the defense presented only a single witness – a former CIA operative who cast doubt on the government’s assertion that people become jihadists because of what they read on line – the jury acquitted him of the serious charges against him. 

Just as in the Sami al-Hussayen case, the prosecution in the Mehanna case made the material support statute a vehicle for the suppression of unpopular ideas that fall within the boundaries of the First Amendment – including watching ‘Jihadi’ videos with others, lending CDs to “create like-minded youth,” translating texts freely available on the internet.  Why did it turn out so differently?

The explanation, at least in part, appears to lie in the widespread acceptance of the notion of a “domestic radicalization process“ promoted through internet activity, which was first put forward by the New York Police Department in its 2007 report, “Radicalization in the West: The Homegrown Threat.”

This is the same NYPD which mapped its ethnic communities, carried out wholesale monitoring of Muslims, and in the years ahead, would screen the Islamophobic film “The Third Jihad” to nearly 1500 of its new recruits and officers. 

The nub of the government’s position appears to be this: extending the protection of the First Amendment to what Muslims like Mehanna do online is no longer an option if it serves to cloak a supposed process of radicalization that could ultimately be much more dangerous than anything the Hutaree could cook up.  

For the prosecution, Tarek Mehanna serves as a poster boy for the radicalization thesis:  a dangerous “violent extremist” who “lived a double life” and never “expressed any remorse for his crimes.” This “angry, callous and calculating man” was radicalized himself and then set about using his language skills and the internet to radicalize others, just as the NYPD had warned. 

The NYPD analysis figured prominently in the pre-sentencing hearing submissions forwarded by the US Attorney’s Office to Judge George O’Toole. Among them is a May 2008 staff report from the Senate Homeland Security Committee, Violent Islamic Extremism, The Internet and the Homegrown Terrorist Threat which reads like a primer on the government’s case against Mehanna. 

Quoted in the report is Lawrence Sanchez, Assistant Commissioner of the NYPD’s Intelligence Division – who, thanks to an investigation by the Associated Press, we now know to be a CIA operative and the architect of the NYPD’s blanket monitoring of Muslims.  

Also quoted in the document is Dr. Marc Sageman, a former CIA Operations officer and counter-terrorism expert – who testified for the defense in the Mehanna trial, an uncomfortable fact which the government preferred to skirt.

Taking a similar line to the CIA operative who testified for Sami Omar al Hussayyen, Marc Sageman argued in court that the videos which Mehanna downloaded and shared were insignificant as recruiting tools. 

While the prosecution showed 9/11 videos to the jury and sprinkled its language during the trial and in its sentencing memorandum with repeated references to al Qaeda, the defense maintained that “the government has from the beginning of the case attempted to portray Mehanna as weaving some kind of spell over others to bring them into a terrorist cell. This is a fantasy of the government’s own making.” 

Mehanna’s translations were independent advocacy, the defense claimed, and the government had never proven otherwise.

In her closing argument during the trial, defense attorney Janice Bassil stated that “the only idea that Tarek Mehanna had in common with al Qa’ida is that Muslims had the right and the obligation to defend themselves when they were attacked in their own lands. And we believe that. When the British came to reassert their hold over America – let’s face it, we were a colony – we fought back.  We rebelled.  We defended our land.”

The lesson of the Mehanna case is that where Muslims are concerned, sentiments like these could constitute ‘thought crime.’

This blog is not written or edited by Boston.com or the Boston Globe.
The author is solely responsible for the content.

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About the author

Carol Rose is executive director of the American Civil Liberties Union of Massachusetts. A lawyer and journalist, Carol has spent her career working for and writing about human rights and civil liberties, both in the United States and abroad. More »

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