At a Glance
CCR filed an amicus brief on December 26, 2012, with the U.S. Court of Appeals for the First Circuit in support of the Defendant-Appellant, Tarek Mehanna, and reversal of his conviction.
CCR filed an amicus (“friend of the court”) brief in a criminal case on appeal before the U.S. Court of Appeals for the First Circuit in support of the reversal of Defendant-Appellant Tarek Mehanna’s conviction for material support to al Qaeda, a designated foreign terrorist organization (“FTO”).
In April 2012, Mehanna was sentenced to seventeen and one half years in prison for terrorism-related charges. Prior to his 2011 trial, in November 2008, Mehanna was arrested and charged with making a false statement to a federal officer when he was questioned during an informal, unrecorded interview at his job’s break room. He was released on bail. A year later, after he declined to act as a FBI informant, he was indicted for terrorism-related offenses.
The government’s indictment centered on evidence that Mehanna had translated a religious text and subtitled a video and posted them online, and that he had taken a seven-day trip to Yemen in 2004, during which Mehanna engaged in no terrorist activities and had no contact with an FTO. The government’s case relied on evidence of separate alleged conspiracies, hearsay from dozens of unindicted “co-conspirators” (many of whom Mehanna never met), Mehanna’s protected political speech, and speech from infamous public figures with whom Mehanna had no contact. The prosecution enlisted the testimony of three individuals who were highly incentivized to implicate Mehanna: one was facing prosecution and was immunized, another was subject to deportation, and the third was incarcerated and at risk of transfer to a prison where his children could not visit. Moreover, the jury was bombarded with prejudicial and irrelevant evidence, including violent videos and repeated images of 9/11 and Osama bin Laden. The government never entered evidence to show that Mehanna was directed by, ever communicated with, or had any contact with al Qaeda. The jury was prevented from hearing key defense experts, directed to disregard the First Amendment, and provided no instruction on the definition of “coordination” with an FTO—the government’s theory of prosecution.
While the prosecution attempted to paint Mehanna as a dyed-in-the-wool terrorist, defense counsel demonstrated that Mehanna’s statements and translations were not performed in coordination with an FTO. Rather, Mehanna was an independent advocate of his own views, which, as pure political speech, were entitled to the highest First Amendment protection.
Material Support & Hazards to the First Amendment
At issue in the case are two provisions in the federal criminal code, 18 U.S.C. § 2339A and § 2339B, that prohibit the knowing provision of “material support or resources” for use in the preparation or execution of terrorist crimes and also to designated FTOs. The crux of the government’s case rested on its determination that Mehanna’s translation of a religious text and subtitles of a publically available video, neither of which was done at the behest of an FTO nor provided to an FTO, constituted material support.
The government’s theory of Mehanna’s “coordination” with an FTO flies in the face of the First Amendment and goes against congressional intent in enacting the material support statute, which was aimed at blocking the flow of finances, physical resources, and logistical support—not protected speech. Anticipating the potential misuse of the statute, § 2339B explicitly requires that “Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.”
The issue of the material support statute and First Amendment has been treated before. In Humanitarian Law Project, a case co-counseled by CCR, the plaintiffs sought to engage directly with two designated groups to provide face-to-face training services. The Supreme Court found that the plaintiffs’ proposed activities were barred by the material support statute, but underscored that their finding was tied to the specific facts of the case in question and should not be used as a broad brush to paint other speech-based activity as unconstitutional. Humanitarian Law Project made clear that the material support statute does not penalize independent advocacy on behalf of an FTO, nor contact with or even membership in an FTO.
The government never established that Mehanna directly engaged with an FTO as Humanitarian Law Project requires. The government’s vague theory that Mehanna “coordinated” with al Qaeda is both strained by the facts and legally perilous, corroding core freedom of speech protections that safeguard even vigorous advocacy in support of an FTO’s goals.
First Amendment doctrine holds that political speech is a special right—protected unless and until it imminently and materially advances unlawful ends—and that any government regulation of it must be held to the highest level of scrutiny. CCR’s brief argues that Mehanna’s conviction is anathema to the values of freedom of expression and association, and that a failure to reverse the judgment below would profoundly threaten those values.
Significantly, the government’s overly broad interpretations of the material support statute are closely correlated to criteria based on race, national origin and religion. The incursions upon Mehanna’s constitutional rights are emblematic of a broader pattern of targeting of Muslims and people of color for surveillance, entrapment, and overzealous prosecutions.