It was another of the tawdry show trials held against Muslim activists since 9/11 as a result of the government's criminalization of what people say and believe. These trials, where secrecy rules permit federal lawyers to prosecute people on "evidence" the defendants are not allowed to examine, are the harbinger of a corporate totalitarian state in which any form of dissent can be declared illegal. What the government did to Mehanna, and what it has done to hundreds of other innocent Muslims in this country over the last decade, it will eventually do to the rest of us.
Mehanna, a teacher at Alhuda Academy in Worcester, was convicted after an eight-week jury trial of conspiring to kill U.S. soldiers in Iraq and providing material support to al-Qaida, as well as making false statements to officials investigating terrorism. His real "crime," however, seems to be viewing and translating jihadi videos online, speaking out against U.S. foreign policy in the Middle East and refusing to become a government informant.
Stephen F. Downs, a lawyer in Albany, N.Y., a founder of Project Salam and the author of "Victims of America's Dirty War," a booklet posted on the website, has defended Muslim activists since 2006. He has methodically documented the mendacious charges used to incarcerate many Muslim activists as terrorists. Because of "terrorism enhancement" provisions, any sentence can be quadrupled—even minor charges can leave prisoners incarcerated for years.
"People who have committed no crime are taken into custody, isolated without adequate recourse to legal advice, railroaded with fake or contrived charges, and 'disappeared' into prisons designed to isolate them," Downs told me when we met last week at Brown University in Providence, R.I.
Downs calls the process of condemning people before they have committed a crime "pre-emptive prosecution." The concept of pre-emptive prosecution mocks domestic law as egregiously as pre-emptive war mocks the foundations of international law.
Downs' awakening to the corruption of the judicial system came in 2006 when Yassin Aref, a Kurdish refugee from Iraq who was an imam of a mosque in Albany, was entrapped in a government sting operation. Downs, who three years earlier had retired as chief attorney for the New York State Commission on Judicial Conduct, became part of Aref's legal defense team. He met with Aref two or three times a week in the Rensselaer County jail over a six-month period.
"I was unprepared for the fact that the government would put together a case that was just one lie piled up on top of another lie," Downs said. "And when you pointed it out to them they didn't care. They didn't refute it. They knew that it was a lie. The facts of most of these pre-emptive cases don't support the charges. But the facts are irrelevant. The government has decided to target these people. It wants to take them down for ideological reasons."
"In the past, when the government wanted to do something illegal it simply went ahead and broke the law," he said. "They rounded up the Japanese during World War II and stuck them in concentration camps. They knew they were breaking the law when they decided to go after the activists with COINTELPRO in the 1960s but they rationalized that they were doing it for a higher purpose. This is different. The government is destroying the legal framework of our country. They are twisting it out of recognition to make it appear as though what they're doing is legal. I don't remember that kind of a situation in the past. The opinions of the court are now only lame excuses as to why the courts can't do justice."
"The government lawyers must know these pre-emptive cases are fake," he said. "They must know they're prosecuting people before a crime has been committed based on what they think the defendant might do in the future. They defend what they are doing by saying that they are protecting the nation from people who might want to do it harm. I'm sure they've been co-opted at least to believe that. But I think they also know that they are twisting the legal concepts, they are stretching them beyond what the framework of the law can tolerate. They have convinced themselves that it is OK to convict many innocent people as long as they prevent a few people from committing crimes in the future. They are creating an internal culture within the Justice Department where there is contempt for the law and for the foundational principle that it is better for one guilty person to go free than that one innocent person is convicted. They must know they do not do justice, and that they serve only ideological ends."
Downs pointed out that if the government was actually concerned about the rule of law it would prosecute politicians and other prominent Americans who have publicly spoken out in support of Mojahedin-e Khalq (MEK or People's Holy Jihadis), an armed group on the State Department terrorism list that carries out terrorist attacks inside Iran. They include former New York City Mayor Rudy Giuliani, former Pennsylvania Gov. Ed Rendell, former U.N. Ambassador John Bolton, former Vermont Gov. Howard Dean, former Homeland Security Secretary Tom Ridge, former Attorney General Michael Mukasey, former homeland security adviser Frances Fragos Townsend, former FBI Director Louis Freeh, former Joint Chiefs of Staff Chairman Gen. Hugh Shelton, and Gen. James Jones, who was President Obama's first national security adviser. Some of them voiced their backing in speeches for which they were paid lavishly.
"Their support of MEK is far worse than any of the pre-emptive prosecution cases," Downs said. "They are literally engaged in material support for terrorism. But of course they're not being prosecuted. ... The whole thing is a game. It's not serious law enforcement. It is political posturing. This will bring the law into contempt. It will bring the mechanisms of prosecution into contempt and eventually it will destroy the legal system."
"Justice is now justice for corporations," he went on. "Anybody who interferes with the corporations, who interferes with their profits, who interferes with their rights, will become labeled 'terrorists.' They become people we need to get rid of. Judges, politicians and lawyers all feed at the same corporate trough. And that is why their decisions increasingly are corporate decisions."
Downs holds out a faint hope that it may be possible to force the Justice Department to turn over exculpatory evidence—evidence of a defendant's innocence that by law the prosecution must disclose to the defendant but an obligation that the prosecutors frequently ignore. He said he is certain there is exculpatory evidence in government vaults that could free many of those pre-emptively prosecuted. Government prosecutors, however, do not willing sabotage their own cases by turning over evidence that would exonerate those they seek to condemn. Downs knows it is a quixotic fight, but he is working to get the undisclosed exculpatory evidence in pre-emptive prosecution cases released to defense lawyers.
"That's my one hope of getting these guys out of jail—I don't see any other way," he said.
The corruption in the judiciary, Downs argues, is so pervasive that it is probably irreversible in the short run. Already dissidents such as peace activists, environmentalists and outspoken intellectuals have been treated as terrorists. Downs expects soon to see labor organizers and those in Occupy encampments treated as terrorists, especially if domestic dissent spreads. Yet despite his pessimism he has no intention of surrendering.
"I take comfort from organizations like the White Rose in Germany," he said, referring to the anti-Nazi group that defied Hitler and saw most of its members arrested and executed. "They were doomed almost from the beginning. How long could you defy Hitler before you were rounded up and shot? It appeared to be a futile effort. And yet, after the war, when people went back and began to rebuild the German nation, they could look to the White Rose as an example of what German culture was really about. There were Germans who cared about peace, freedom and tolerance. I'm working now as much for the historical record as for those still in jail."
"When I was 6," Mehanna told the court Thursday at his sentencing, "I began putting together a massive collection of comic books. Batman implanted a concept in my mind, introduced me to a paradigm as to how the world is set up: that there are oppressors, there are the oppressed, and there are those who step up to defend the oppressed. This resonated with me so much that throughout the rest of my childhood I gravitated towards any book that reflected that paradigm—'Uncle Tom's Cabin,' 'The Autobiography of Malcolm X,' and I even saw an ethical dimension to 'The Catcher in the Rye.' "
"By the time I began high school and took a real history class, I was learning just how real that paradigm is in the world," he went on. "I learned about the Native Americans and what befell them at the hands of European settlers. I learned about how the descendants of those European settlers were in turn oppressed under the tyranny of King George III. I read about Paul Revere, Tom Paine, and how Americans began an armed insurgency against British forces—an insurgency we now celebrate as the American Revolutionary War. As a kid I even went on school field trips just blocks away from where we sit now. I learned about Harriet Tubman, Nat Turner, John Brown, and the fight against slavery in this country. I learned about Emma Goldman, Eugene Debs and the struggles of the labor unions, working class and poor. I learned about Anne Frank, the Nazis, and how they persecuted minorities and imprisoned dissidents. I learned about Rosa Parks, Malcolm X, Martin Luther King and the civil rights struggle. I learned about Ho Chi Minh, and how the Vietnamese fought for decades to liberate themselves from one invader after another. I learned about Nelson Mandela and the fight against apartheid in South Africa. Everything I learned in those years confirmed what I was beginning to learn when I was 6: that throughout history, there has been a constant struggle between the oppressed and their oppressors. With each struggle I learned about, I found myself consistently siding with the oppressed, and consistently respecting those who stepped up to defend them—regardless of nationality, regardless of religion. And I never threw my class notes away. As I stand here speaking, they are in a neat pile in my bedroom closet at home."
"In your eyes, I'm a terrorist, and it's perfectly reasonable that I be standing here in an orange jumpsuit," he told the court at the end of his statement. "But one day, America will change and people will recognize this day for what it is. They will look at how hundreds of thousands of Muslims were killed and maimed by the U.S. military in foreign countries, yet somehow I'm the one going to prison for 'conspiring to kill and maim' in those countries—because I support the mujahedeen defending those people. They will look back on how the government spent millions of dollars to imprison me as a 'terrorist,' yet if we were to somehow bring Abeer al-Janabi back to life in the moment she was being gang-raped by your soldiers, to put her on that witness stand and ask her who the 'terrorists' are, she sure wouldn't be pointing at me."