Why Is Tarek Mehanna Held to a Different Standard than the Hutaree Militia?

Over the last week, there were two must-read pieces arguing that the sentencing of Tarek Mehanna to 17.5 years in prison for conspiring to materially support terrorism threatens free speech.

David Cole–who argued the Humanitarian Law Project v. Holder case in which SCOTUS first permitted speech to be criminalized as material support for terrorism–noted that Mehanna’s actions didn’t even rise to that troubling standard.

But in Mehanna’s case, the government never tried to satisfy that standard. It didn’t show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna’s translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted “material support” to a “terrorist organization.”

The prosecutor relied on a 2010 Supreme Court decision in a case I argued, Holder v. Humanitarian Law Project. In Humanitarian Law Project, a divided Court upheld the “material support” statute as applied to advocacy of peace and human rights, when done in coordination with and to aid a designated “terrorist organization.” (The plaintiffs in the case sought to encourage the Kurdistan Workers Party in Turkey to resolve their disputes with the Turkish government through lawful means, by training them in bringing human rights complaints before the United Nations and helping them in peace overtures to the Turkish government.) The Court ruled that the government could criminalize such advocacy of peaceful nonviolent activity without transgressing the First Amendment, because, it reasoned, any aid to a foreign terrorist organization might ultimately support illegal ends.

The Humanitarian Law Project decision is troubling enough, as I have previously explained. But Mehanna’s case goes still further. The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher, Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda.) It did not even claim that the “39 Ways” was written by al-Qaeda. The prosecution offered plenty of evidence that in Internet chat rooms Mehanna expressed admiration for the group’s ideology, and for Osama bin Laden in particular. But can one provide “material support” to a group with which one has never communicated?

(See also Ben Wittes’ curation of Cole’s ongoing spat about the evidence in this case with Peter Margulies.)

And Andrew March, who testified at the trial, distinguished Mehanna’s advocacy from the ideology al Qaeda pushes.

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.

As I read these pieces (and a lot of the other commentary on Mehanna’s sentence, I kept coming back to the recent ruling that threw out all the conspiracy charges against the Hutaree militia on free speech grounds.

These cases are not entirely apposite examples. The Hutaree were charged not with conspiracy to provide material support to terrorism; since white militia groups are not classed as Foreign Terrorist Organizations, material support charges are unavailable. Rather, the Hutaree were charged with conspiracy to engage in a range of terrorism activities, including sedition and one of the favorite charges used against Islamic extremists, conspiracy to use WMD.

In addition, Judge Victoria Roberts suggested the case had been mischarged; she intimated that a conspiracy to murder law enforcement agents might have succeeded.

Finally, the facts are different. Whereas Mehanna translated videos, the Hutaree consumed them. Whereas Mehanna tried but failed to obtain military training years before being charged, the Hutaree were actively engaged in training, with weapons, in the period when they were arrested. Whereas Mehanna propagated generalized violent speech, Hutaree leader David Stone Sr. engaged in discussions advocating a plan of violence.

And yet the conspiracy charges against the Hutaree, not those against Mehanna, were dismissed (properly, I think) on free speech grounds. Roberts wrote,

The Government has consistently maintained that this case is not about freedom of speech or association, but about the specific acts of violence alleged in the Indictment. The Court relied upon these representations in denying Defendants’ pretrial motions for a jury instruction on the Brandenburg case, and the heightened strictissimi juris standard for sufficiency of the evidence (Docs. 610, 618). However, much of the Government’s evidence against Defendants at trial was in the form of speeches, primarily by Stone, Sr., who frequently made statements describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war. Indeed, at oral argument on March 26, 2012, the Government asked the Court to find the existence of a seditious conspiracy based primarily on two conversations involving Stone, Sr., and others — the first on August 13, 2009, and the second on February 20, 2010.

Additional evidence the Government relies on includes Defendants’ participation in various military-style training exercises, anti-Government literature found in some of the Defendants’ homes, and guns and ammunition collected by various Defendants. But, none of these things is inherently unlawful. While this evidence may provide circumstantial proof that some of the Defendants planned to do something unlawful, the Indictment sets forth a specific plot to draw law enforcement to Michigan from around the country by killing a member of local law enforcement.

Again, because of the difference in facts and, more importantly, the different way our country treats international terrrorism from domestic terrorism, it would be a mistake to make too much of this comparison.

But we seem to be in a place where white people engaging in hateful speech and training with weapons have very different legal rights than Muslims merely attempting to obtain training and engaging in less pointed hate speech.

Not only does not not make sense legally, but it also probably makes us less safe to sustain this double standard.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

17 replies
  1. Jim White says:

    the different way our country treats international terrrorism from domestic terrorism

    The key, of course, being “international terrorism” to the US government is shorthand for Muslims.

    The University of Maryand today released powerful info on “why they hate us”:

    Equally significant, substantial majorities resonate with and readily express the central narrative of radical Islamists: that America is oppressing the Muslim world. This is a narrative that blends into a long-standing narrative of Western oppression going back to the Crusades. This narrative is usually expressed angrily, with the United States portrayed as self-seeking and using its superior military power in an exploitive fashion.

    However, in focus groups another, more subtle narrative also emerged. According to this narrative, America has important values, including respect for international law, acceptance of constraints on military power, religious tolerance, and democratic values. But America is also seen as having violated these same liberal principles that it promotes, generating a deeply felt sense of betrayal. In the focus groups people often spoke in a beseeching tone, as if they still had hopes that America would rediscover its better angels.

    This two-layered theme—overt anger and disdain, with an underlying sense of disappointment and betrayal for America not living up to its values—showed up in the four key complaints about America.

    Link: http://imerrill.umd.edu/facultyvoice1/2012/03/16/understanding-muslim-anger-at-america/

    This outcome plays directly into that narrative: some (white) folks have free speech rights, others (Muslims) don’t.

  2. earlofhuntingdon says:

    Making us less safe is the defining characteristic of much of the surveillance state. Its purpose is to enhance government power at the expense of civil but not corporate society. It enriches and permanently empowers a few at the expense of the many, an outcome that would be dismissed as a plot in Star Trek, which makes eminent sense only inside the boardroom and the beltway. Mr. Obama leads the demise of the Democratic Party by being the champion of that sort of change.

  3. earlofhuntingdon says:

    @earlofhuntingdon: Digby suggests that it is not just a secret power-loving Mr. Obama that is leading the national security state to new heights of power. It is that the US is an empire and that many people outside the beltway love it, or are at least have been convinced they do even if, as they are with respect to unregulated corporate power, they are at the sharp end of the empire’s stick.

  4. chetnolian says:

    The quote from the prosecutor that “it is illegal ….to watch something to cultivate your desire, your ideology” is shocking and it is bizarre that any trained lawyer could say it. He is arguing that not only does one not have freedom of speech, one does not have freedom to watch and listen. Would he apply this test to Fox News? If not why not? Would this apply to the extreme religious radio I recently found pre-tuned into my rental car radio while in the USA? If not why not?

    To an outsider it is beginning to look as if US liberal democracy is rotting from within. That thought is really upsetting to a visitor who wants to be sympathetic. To a visitor from a country, the UK, where we absolutely have to find a way of living with both Christians and Muslims who think extreme thoughts, it is truly scary.

  5. earlofhuntingdon says:

    Fish rot from the head. The rot in the US spreads from the Beltway, and its attendant “defense” corridors in Maryland and Virginia (home to Lockheed, SAIC, Booze Allen, ad nauseum) out.

    The notion would have been familiar to Mark Twain a hundred years ago, but the rot is spreading faster what with modern information stealing technologies and the ability of the US to sanction recalcitrant states and private bodies who fail to accept being co-opted. That power extends internationally; witness the success of US threats against the EU parliament for failing to give it real time access to EU passenger data.

  6. emptywheel says:

    @earlofhuntingdon: I’ve argued that myself.

    I think there are two things involved. First, being members of an empire is a central part of a lot of Americans’ identity and self-worth. I suspect rising racism derives partly from declining economic security, but just as much from an insecurity that arises from sensing we’re not invulnerable anymore.

    I also think most Americans are too comfortable with all the perks that being members of an empire get them. Mind you, many are not conscious of that fact. But just as many couldn’t imagine how they would survive if they had to pay as much for gas as the Europeans do. Or if they had to limit their consumer purchases. Mind you they COULD adapt–in many ways less materialist lifestyles are more fulfilling. There just as few role models.

    But that’s sort of why the GOP accused Obama of giving up on American exceptionalism (something which our NatSec professionals are loathe to do, too). We gave up the exceptionalism that, for example, inspired Eastern European dissidents a long time ago. Right now exceptionalism is code (as it was always, to a lesser degree) for being able to do whatever we want.

  7. earlofhuntingdon says:

    @emptywheel: I agree. I mentioned Digby because of one of her comments today.

    Racism has been part of US imperial rule since it acquired the Philippines in 1898. Slavery, of course, was a significant part of both our pre- (directly) and post-industrial (indirectly) economy since the flow of slaves from Africa began to reach North America in the 17th century. (The US role almost pales if we consider that only 2-3% of slaves from that trade reached North America; the bulk of them went to Brazil and the Caribbean.)

    Racism, as with discrimination against each new wave of immigrants, has often been used to deflect criticism of the few who benefit from current economic circumstances. Many of us are in thrall, forced or otherwise, to promises of betterment for ourselves tomorrow in exchange for our sacrifices today. As with political promises, the delayed fruits of that exchange never seem to materialize, just as Wimpy never repaid on Tuesday the borrowed money that paid for his hamburger today.

    Most Americans probably are unfamiliar with how much being our empire seems to benefit them, or at least their corporate employers. Many have been persuaded, for example, that a nominally low price for goods and services reflects actual price. In reality, we shop at Wal-Mart and Sam’s and their brethren because their prices exclude externalized costs offloaded onto employees, suppliers, host communities and the public at large.

    Dubya was a paragon of the false notion that we needn’t sacrifice in order to acquire and rule an empire. As his Donald Rumsfeld said of his war in Iraq, it will pay itself. Many continue to accept or refuse to challenge that idea, just as we believe that one of us will win the lottery, despite the odds being 137 million to one against. (The odds of being hit by lightning are about four million to one).

    As with other empires, the British, French, the notorious Belgian, we hide who pays empire’s most direct costs, just as the swells of London and Boston hid the source of their opium riches derived from the China trade.

    You rightly point out that if we forego American “exceptionalism”, we would have to examine the sources of our empire and its poorly distributed riches. We might question the consequences we impose on others, be they 19th century sweated labor surviving on chewed leaves and smoked flower sap, or children, men and women devoured by today’s drone attacks. We might question the elaborate structures that sustain empire, most prominently our 800 plus foreign military bases and the plethora of “national security” companies whose offices line not Whitehall or quays along the Seine, but the leafy suburbs of Maryland and Virginia.

  8. jawbone says:

    The US treats black defendants in terrorism cases differently than it treats white defendants…for the most part. I wonder if if John Walker Lindh would have received quite the same sentence had he not been an early arrest in the War on Terra….so close to 9/11.

    Given the light sentence given to most US military who have committed murder against citizens of nations we’ve invaded, I wonder if a both judge and jury might view Lindh more sympathetically nowadays.

    But in almost all the entrapment cases brought against native born and foreign born people accused of terraism the Muslims are found guilty and given very long sentences. Under egregious conditons approaching torture. Life long torture.

  9. chetnolian says:

    Oh I understand that. I don’t see the difference of principle though; anyway it may jusr be a metter of designation, are you sure Rupert isn’t still an Ocker at heart?

  10. emptywheel says:

    @jawbone: Interesting question wrt Lindh. I think he would have gotten harsh treatment in any case–it was like he was considered a traitor to his race, and so had to be punished more harshly.

    That said, I don’t think the various white or Latino converts to Islam are getting off easy.

  11. William Ockham says:

    @emptywheel: It is all about whether the accused can be portrayed as the “other”, a fairly amorphous tribal concept. Groups like the Hutaree are too near on sociopoliticoreligious spectrum to groups that the imperialists need to keep inside the tent pissing out, to quote LBJ.

  12. earlofhuntingdon says:

    @William Ockham: Yep. Up their socio-economic status by an order of magnitude and they would be mid-level GOP stalwarts, by two or three orders of magnitude and they would be attending and voting at the GOP convention this summer. As it is, they represent the have nots in the economy, but the haves among the tropes favored by dominant rightists. They might mistake Marine Le Pen for a member of PEN, but they are to her right in terms of social, economic and political policies.

  13. 4jkb4ia says:

    The Andrew March piece was so outstanding that I wanted my husband to know what was in it.

    bmaz, I think the Coyotes have got it. I will miss the Blackhawks announcers for another year.

  14. orionATL says:

    ew writes:

    “… First, being members of an empire is a central part of a lot of Americans’ identity and self-worth…”

    it’s not inconceivable that that is the case, but it doesn’t ring true with my sense of most americans.

    for one thing, i think huge numbers of us are almost completely oblivious to what our gov’t is doing – domestically or internationally.

    for another, if we are an empire it would not be in the classic “physical” sense of having colonies. it would be in some a more abstract economic sense.

    for another, we do not control our economic destiny, e.g., with respect to oil.

    nor do we control it with respect to our currency, our debt, our traditional markets, or our prospects for future economic growth.

    we certainly do love to chant “we’re #1”, but that may be as much human psychology re differentiation as about any, even inchoate, sense of empire.

    where we may appear an “empire” is in our recent use of our military and our military technology nearly anywhere on the globe we wish.

    but then, vietnam was a failure, lebanon was a failure, iraq was a failure, afghanistan seems destined to be a failure (and what would we get from it other than poppies and some rare metals?).

    we can go to grenada, lebanon, central america/panama, iraq (twice), somalia, afghanistan, mexico (in the near future), but americans have never had the stomach for war or the staying power needed for empirical settlement and population control.

    if we have any “empire” at all it is a metaphorical, policing empire controlling speech and international travel and trade. but even that is done by our gov’t more out of domestic political fear than any empirical desires or imperatives.

    we are and have been for decades reacting out of fear and democratic messiahnism rather than the confidence and certainty required of an empire.

  15. ondelette says:

    The Andrew March piece is, I think, the key to the distinction. It shows the government drawing on a field of supposed expertise in propagation of Muslim terrorism — most prominently in the chilling depiction of the point-by-point linking of each of his behaviors to the translated text on characteristics worth cultivating in a good jihadi. March is right. There is a whole field of expertise within the government specializing in making the actions of the accused into sinister behaviors that are not what they seem in front of juries. As I had said before about Mehanna, he was originally busted for lying about getting a phone call from Daniel Maldonado from Somalia, and that’s all.

    When Aafia Siddiqui was having her competency hearing, she was originally deemed mentally incompetent, and the symptoms for which she was deemed incompetent were so close to those delineated in most explications of long term effects of close solitary confinement as to have probably been a clincher for her having been held and tortured for the five years of her disappearance (which the IJN has produced further evidence of subsequently).

    The government responded by bringing in “experts” from the Bureau of Prisons, who were psychiatrists, but whose recent “expertise” was in “propagation of Muslim terrorism” in the U.S. prison system, and who reinterpreted just about everything she did as “malingering”. That plus the sudden admission of evidence in the form of notes from interrogations outside of the U.S. by FBI agents under circumstances that amounted to torture and cruel, inhuman, and degrading treatment.

    There is a section of the justice department/board of prisons that “specializes” in coming up with mental profiles and theories on the “mind of the terrorist” with respect to “propagation” of “terrorist beliefs”.

    From what I was able to tell in my brief excursion into the mind of the “experts”, they don’t know a heck of a lot about their subject matter, but are pretty good at being expert witnesses and turning judges and juries around and putting people in prison.

    What’s really important here isn’t the prejudice against Muslims in the courtroom. It’s the madness in the government in that fevered mind of the terrorist get the eggs propagation experts department. Those people are very very clearly off the rails. They’re the ones who come up with the videos that the NYPD was watching, who created the theories at the Siddiqui competency hearing, who did the point by point at the Mehanna trial. They appear to be batshit crazy from excessive incestual secrecy and conspiracy theorizing. They don’t know their history, they don’t know their anthropology, they don’t know anything but little pieces on their action hero Ouija board and they are very dangerous. They are dangerous because they bust people who aren’t terrorists, and they are dangerous because they lead law enforcement on wild goose chases when they could be tracking people who might really want to cause harm.

    Mehanna is repulsive in a lot of what he says, but I’d bet he’s both harmless and pretty non-violent. He refused to join his friends when they wanted him to pick up a gun. He wanted to go off and work in a hospital instead. The government doesn’t want to admit they made a mistake, and the batshit experts want a notch for their trophy wall.

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