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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.

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The WMD Charges against White People Get Thrown Out

As Bane of Our Existence and Dirty Masquerade have been noting in comments, the case against the Hutaree Militia has been crumbling in court. Today, Judge Victoria Roberts threw out most of the charges against most of the defendants, based on her judgment that the government had based its conspiracy charges on speculation. Among those charges are the Conspiracy to Use WMD which–as I’ve noted in the past–was one of the few times white defendants have been charged with what is a garden variety charge against Muslim defendants who are caught in stings.

Some of the case law Roberts relies on for her case is specific to the 6th Circuit. Nevertheless, her opinion lays out principles that would–if applied to Muslims–undermine the cases against brown terrorists are significantly as it has against these white alleged terrorists (not to mention Manssor Arbabsiar and two of the four Waffle House plotters).

First, she lays out that a conspiracy must entail explicit agreement to a specific plot.

In order to sustain a conviction for conspiracy, the Government must prove that each Defendant: (1) agreed to violate the law; (2) possessed the knowledge and intent to join the conspiracy; and (3) participated in the conspiracy. See United States v. Sliwo, 620 F.3d 630, 633 (6th Cir. 2010); see also Sixth Circuit Pattern Jury Instructions §§ 3.01A, 3.03 (To prove a conspiracy, the government must show that (1) two or more individuals conspired to commit the crime; and (2) that each defendant voluntarily joined the conspiracy, knowing of its main purpose and intending to help advance its goals.). In addition, a conspiracy requires a specific plan. See Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir. 1944) (holding that a criminal conspiracy requires (1) an object to be accomplished; (2) a plan or scheme embodying means to accomplish that object; (3) an agreement by two or more defendants to accomplish the object; and (4) an overt act, where applicable); see also United States v. Bostic, 480 F.2d 965, 968 (6th Cir.1973).

Roberts goes on to note that the law requires evidence that each alleged conspirator entered into the conspiracy; guilt by association is not enough.

The issue of guilt or innocence in a conspiracy is always an individualized inquiry. Kotteakos v. United States, 328 U.S. 750, 772 (1946) (“Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application.”). The government must prove the intent of each individual conspirator to enter into the conspiracy, knowing of its objectives, and agreeing to further its goals. See Sixth Circuit Pattern Jury Instruction § 3.03. Consistent with these principles, it is useful to note that there are two distinct intents required to prove the crime of conspiracy — the basic intent to agree, which is necessary to establish the existence of the conspiracy, and the more traditional intent to effectuate the object of the conspiracy. United States v. United States Gypsum Co., 438 U.S. 422, 443 n.20 (1978); Sixth Circuit Pattern Jury Instruction, Committee Commentary 3.03; 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 12.2 (2d ed. 2011).

All the more so, Roberts lays out, when the alleged conspiracy entails the freedom of assembly.

Where a conspiracy implicates First Amendment protections such as freedom of association and freedom of speech, the court must make a “specially meticulous inquiry” into the government’s evidence so there is not “an unfair imputation of the intent or acts of some participants to all others.” Read more

Can White People Be Charged with Use of a WMD?

Let’s look at the following two examples of men arrested in the last week to see how the federal crime “Use of a Weapon of Mass Destruction” is used.

Mohamed Osman Mohamud: Mohamud was arrested Friday on charges of “attempting to use a weapon of mass destruction” for trying to detonate what he believed to be a car bomb in the crowd attending Portland, OR’s Christmas tree-lighting ceremony. Here’s how the FBI described that bomb:

The bomb was contained in the back of a late-model, white full-size van. The bomb was inert and constructed by FBI bomb technicians. It consisted of six 55 gallon drums containing inert material, inert detonation cord, inert blasting caps, and approximately one gallon of diesel fuel which gave off a strong odor. In the front seat of the van agents placed a detonation mechanism which consisted of a cellular telephone, a 9volt battery, an arming switch and a phone-jack plug.

The FBI set up this sting possibly because of a tip from Mohamud’s family, and definitely because of some emails Mohamud sent to a friend in Yemen and–later–Pakistan, and some pathetically unsuccessful attempts to email someone he allegedly believed could help him join Jihad.

George Djura Jakubec: After Jakubec’s gardener tripped off an explosion in his back yard last week, local authorities tried to search Jakubec’s house, which was said to have “the largest quantity of homemade explosives found in one location in the history of the United States,” including PETN (the explosive the TSA agents are searching for when they grope you) and HMTD (which has been used by al Qaeda and other Islamic terrorists). But authorities withdrew, twice, after determining Jakubec’s house too cluttered and dangerous to search. Jakubec is being held in county custody on 12 state charges of possession of a destructive device in public (one of which is tied to the injuries suffered by his gardener), 14 state charges of possession of the ingredients to make a destructive device, and two charges of robbery tied to bank robberies on June 25 and July 17 of this year.

So Jakubec–who had apparently large quantities of the explosives that terrorists favor and the ability to make more–is in San Diego County custody on state charges. Mohamud–who never had contact with a live bomb–is in federal custody on a charge that carries a life sentence.

Now, as odd as it may seem, explosives do qualify as WMD under this law, which includes chemical, biological, and radioactive weapons, as well as “destructive devices” including things like bomb, grenades, and missiles. The FBI is charging Mohamud with the following:

A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction against any person or property within the United States, and the mail or any facility of interstate or foreign commerce is used in furtherance of the offense shall be imprisoned for any term of years or for life.

I guess they’re arguing this constitutes an “attempt” to use a WMD (the car bomb), even though no WMD existed. And I assume they’re claiming an interstate or foreign commerce because they first contacted Mohamud pretending to respond to his unsuccessful emails to an alleged al Qaeda recruiter, though the bomb site is also in front of the US Appeals Court which they presumably could define as a federal target if pressed, though they don’t seem to be doing that.

Now, as compared to Mohamud, there may be reasons why they can’t or haven’t charged Jakubec with use of a WMD. Quite simply, they don’t know if Jakubec planned to use this arsenal, and if so, on what. Mind you, they appear to have decided they couldn’t construct an elaborate plot to find out because if they did they risked having him blow up southbound I-15 by mistake; they had to arrest him right away because his explosive were such a threat.

Which is not dissimilar to a pair of guys from last year. Najibullah Zazi, because his overseas contacts got him targeted for surveillance, got busted before his efforts to bomb the NY subway could develop completely. Zazi now appears to be cooperating with prosecutors. But Benjamin Kuzelka, who was developing the same TATP explosive as Zazi was, and who had white supremacist literature at his house when he set off an explosion, got off with a four year sentence.

Mind you, I think Zazi is a great person to charge with using a WMD (as is Faisal Shahzad, who was also charged with using a WMD). But I bet Kuzelka’s associates weren’t cross-checked for their hydrogen peroxide purchases, as Zazi’s appear to have been.

That’s my biggest concern: that the quickness with which the government slaps a WMD charge on someone experimenting with explosives reflects its interest or disinterest in fully investigating that person’s goals and associates. One of the more notable cases of a white supremacist plotting to use WMD–with actual chemical weapons, in fact–died in prison without ever being charged with WMD charges and before authorities discovered what he intended to do with his chemical weapons.

That said, we do have at least one very notable case where white people got charged with using and conspiring to use WMD: the Hutaree militia. Mind you, the FBI found them before they exploded themselves or their gardener.