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The Narrowing of Tarek Mehanna’s Liberties Has Consequences for Us All

The recent indictment, conviction, and sentencing of a Massachusetts pharmacist named Tarek Mehanna highlights the Obama administration’s squeamishness with public information and oversight in national security matters.

Cross­pos­ted at The Huff­ing­ton Post

Ronald Reagan famously said that the nine most terri­fy­ing words in the English language are “I’m from the govern­ment and I’m here to help.” These days, the mantra is more likely to be “I’m from the govern­ment and I’m here to help you think.” When it comes to matters involving national secur­ity, the govern­ment seems intent on shield­ing Amer­ic­ans’ impres­sion­able minds. The recent indict­ment, convic­tion and senten­cing of a Massachu­setts phar­macist named Tarek Mehanna is another blow to the public’s abil­ity to hear, study and discuss contro­ver­sial ideas.

Mehanna, an Amer­ican citizen born in Pennsylvania and raised in Massachu­setts, was vocally opposed to the Amer­ican pres­ence in the Middle East and advoc­ated for the viol­ent expul­sion of U.S. forces from Iraq. He attemp­ted to convert belief to action, trav­el­ing to Yemen in search of a terror­ist train­ing camp and lying to Amer­ican terror­ism invest­ig­at­ors. He was charged and convicted last Decem­ber for a number of offenses, includ­ing Conspir­acy to Provide Mater­ial Support to Terror­ists and Conspir­acy to Kill in a Foreign Coun­try. He was sentenced in mid-April to 17 ½ years in prison.

One might say: good riddance. But the govern­ment put Mehanna away not just for his efforts to wage war against Amer­ic­ans in a foreign coun­try. The “mater­ial support” charge also alleged that Mehanna broke the law by access­ing and shar­ing inform­a­tion. Specific­ally by trans­lat­ing a book (a 2003 Saudi text, 39 Ways to Serve and Parti­cip­ate in Jihad, that was “inten­ded to incite people to engage in viol­ent jihad”); distrib­ut­ing a video show­ing the brutal treat­ment of dead U.S. milit­ary person­nel in retali­ation for a rape in Iraq; and giving a friend a film about jihadi fight­ers.

Since the Viet­nam War, the Supreme Court has assured the speaker on his soap­box and the scholar in her office that speech is not crim­inal unless it “incites” listen­ers to “immin­ent lawless action.” In Branden­burg v. Ohio (1969), the Court unan­im­ously over­turned the convic­tion of an Ohio Klan leader who was filmed warn­ing a crowd that “if our Pres­id­ent, our Congress, our Supreme Court, contin­ues to suppress the white, Caucasian race, it’s possible that there might have to be some reven­geance taken.” The opin­ion, hold­ing that “mere advocacy” may not be punished, reversed decades of preced­ent permit­ting states to imprison speak­ers for criti­ciz­ing Amer­ican milit­ary efforts and capit­al­ism. The same year, in Stan­ley v. Geor­gia, the Court affirmed the long-stand­ing Consti­tu­tional right “to receive inform­a­tion and ideas.” In the admit­tedly murky realm of free speech protec­tion, Branden­burg has until recently remained a First Amend­ment corner­stone.

In 2008, the Supreme Court took a major swipe at Branden­burg. In a case called Holder v. Human­it­arian Law Project, the court addressed the mater­ial support provi­sion of the USA PATRIOT Act, which crim­in­al­izes the deliv­ery of “prop­erty” or “services,” includ­ing “expert advice or assist­ance,” to any group desig­nated as a “foreign terror­ist organ­iz­a­tion.” The court held that this stat­ute could be used to prosec­ute pure speech—in that case, the provi­sion of coun­sel­ing by human rights groups to terror­ist organ­iz­a­tions on the use of non-viol­ent means to resolve polit­ical griev­ances. Notwith­stand­ing Branden­burg, the court held that the speaker need not specific­ally intend to further a group’s terror­ist acts; he need only know that the group parti­cip­ates in terror­ism to run afoul of the Act.

As Justice Roberts recog­nized, however, the speech must be coordin­ated with the group; “inde­pend­ent advocacy,” even if it bene­fits a terror­ist organ­iz­a­tion, may not be prohib­ited under the First Amend­ment. Indeed, the govern­ment itself flatly declared in its brief to the Court that the mater­ial support stat­ute “does not prohibit inde­pend­ent advocacy or expres­sion of any kind.”

Notwith­stand­ing this prom­ise, Mehan­na’s 2010 indict­ment clearly targets his inde­pend­ent advocacy. While he fancied himself the “media arm” of Al Qaeda, there is no indic­a­tion in the indict­ment that any of his activ­it­ies were under­taken at the behest of, in conjunc­tion with, or under the direc­tion of Al Qaeda. The consequences of the govern­ment’s censor­ship extend, however, far beyond the fate of an aspir­ing terror­ist. Crim­in­al­iz­ing the trans­la­tion of a book or the distri­bu­tion of a video chills both schol­ars and the public at large, send­ing the message that they study certain sources at their own peril.

The indict­ment says, for instance, that Mehanna and his co-conspir­at­ors favor­ably compared 39 Ways to Mein Kampf. But just as anyone under­tak­ing an in-depth study of the Nazi period would surely need to start with Mein Kampf, a scholar study­ing the devel­op­ment of jihadist viol­ence in modern history would surely do well to read, and trans­late, 39 Ways, or to watch the videos from which jihadis are draw­ing inspir­a­tion. To be sure, the motives behind such use of these resources might differ from Mehan­na’s motives. Accord­ing to Human­it­arian Law Project, however, benign intent is irrel­ev­ant. Mehan­na’s convic­tion suggests that, to para­phrase George Santay­ana, those who study history may be doomed to spend five to ten years in federal prison.

When combined with the abil­ity to shield its own inform­a­tion from disclos­ure, the abil­ity to limit inform­a­tion from private sources allows the govern­ment to effect­ively control public debate and opin­ion on contro­ver­sial issues and to check the public’s right to receive inform­a­tion—indeed, to “create its own real­ity,” as Karl Rove famously said. Take the govern­ment’s use of a CIA drone to kill U.S. citizen Anwar Al-Awlaki, a Muslim cleric accused of inspir­ing others to deadly viol­ence. In a welcome devel­op­ment, the govern­ment recently offi­cially acknow­ledged the drone program. Never­the­less, the govern­ment contin­ues to reveal only its own care­fully vetted facts about the drone program and its targets; little inform­a­tion on the scope of civil­ian casu­al­ties, for example, is avail­able. And if members of the public want to judge for them­selves whether al-Awlaki’s sermons were so inflam­mat­ory as to justify his killing, they will be hard pressed to do so. Visit­ing any of the websites that might feature videos of Al-Awlaki’s speeches would likely invite FBI scru­tiny. Trans­lat­ing or dissem­in­at­ing them to others, we now know, could invite a 17 ½-year prison sentence.

Justice Felix Frank­furter observed over sixty years ago that “it is a fair summary of history to say that the safe­guards of liberty have frequently been forged in contro­ver­sies involving not very nice people.” Tarek Mehanna may not be a very nice person. But the narrow­ing of his liber­ties has consequences for us all. When it is a crime to trans­late our enemies’ propa­ganda, the govern­ment will have the last word on who is danger­ous, what ideas are danger­ous, and, indeed, what the content of those ideas are. Anyone who believes in the free­dom of thought -let alone free­dom of speech- should be alarmed by such a state of affairs.