Last week, after a mere ten hours of jury deliberation, TarekMehanna was convicted of all seven charges he faced. The first set of counts against him - including conspiracy to provide material support to Al-Qaeda, conspiracy to provide material support to terrorists, and the attempted provision of material support to terrorists – are the most controversial, and the most worrying. Indeed, in an overt disregard for Mehanna’s First Amendment rights, the prosecution maintained that he broke the law by using his knowledge of Arabic to translate and distribute Al-Qaeda-related videos and texts over the Internet. The other counts included conspiring to kill in a foreign country, namely travelling to Yemen to purportedly attend a training camp so he could fight against American forces in Iraq; and finally, three counts of lying to authorities in obstruction of a terrorism investigation.
The difficulty in Mehanna’s case is demarcating what it means to provide material support to a terrorist organization when the “criminal” act itself – translating or re-posting items freely available on the Internet anyway – may gain different meanings for us depending on our perception of the defendant and his intentions. As Nancy Murray of the American Civil Liberties Union sums up, “Is a propagandist for Al Qaeda someone who works with Al Qaeda, or someone who just says positive things about Al Qaeda, or anyone the government has said is furthering the ends of Al Qaeda?”
Consider how the prosecution endeavoured to paint Mehanna, by repeatedly showing photographs, videos, and instant message conversations to the jury that had been extracted from his computer. On just one day, the jury saw more than a dozen such images of the twin towers burning. As one of Mehanna’s attorneys argued, simply showing one photo of the World Trade Center attack would have been sufficient. In fact, she asked the judge to declare mistrial, maintaining that the barrage of photos "[was] more prejudicial than probative ... more than cumulative ... I'd say ad nauseam." Importantly, some of the images - for instance, two photos of the beheading of Nicholas Berg - were in a Firefox cache folder, automatically downloaded by the program during web browsing. I won’t deny that some of the instant message, emails, and images are distasteful - forexample, the image of him and some friends in front of Ground Zero, smiling. But taking that photograph doesn’t automatically make you a criminal, a terrorist, or someone providing material support to Al-Qaeda.
Or, consider the last witness called to testify for the government: the young Evan Kohlmann, once referred to as the “Doogie Howser of terrorism. On the stand, Kohlmann commented: “Every person who speaks on behalf of Al Qaeda has at one point or another called for support . . . from saying prayers, to producing videos, to helping put out Al Qaeda’s message... Al Qaeda is seeking to recruit people who are religious... [and] Jihad is its central philosophy.’’ For Kohlmann, “[the Internet] was a crucial function, because it allowed Al Qaeda to reach an audience . . . an audience being the supporters of Al Qaeda,’’ [It is important to note that the role the Internet plays in recruitment for Al Qaeda, is actually fiercely contested. But anyway...]. Nevermind that Kohlmann worked for the Nine Eleven Finding Answers Foundation, which also posted Al Qaeda videos and statements on its website. What means do we use to evaluate the difference between the Foundation’s website, and its potential to inspire violent terrorist acts, and Mehanna’s blog?
It seems obvious that the prosecution was endeavouring to depict Mehanna as Al-Qaeda’s biggest fan, our own local version of those incomprehensible, barbaric Muslims “over there” who celebrated in the streets when the twin towers went down. Is that an accurate assessment of his beliefs? Who am I to say? Unlike Evan Kohlmann (who’s also never spoken to him), I am going to refrain from making any insinuations (however indirect) about Mehanna’s political ideology. [However, the defence used Mehanna’s posts from the website At-Tibyan Publications to demonstrate that his beliefs actually differed quite considerably from Al-Qaeda. For example, Mehanna maintained that it was against Islamic law to kill civilians or use suicide bombers. He opposed the view that Americans were legitimate targets because they paid taxes and financed the war in Iraq.]
But even if Mehanna did think Al-Qaeda was the greatest thing since sliced bread, that does not tell us why he did what he did. Most importantly, it does not establish whether he translated and posted Al-Qaeda material on the Internet, at the direction of the organization and with the intention of inciting imminent violent action. And that is what constitutes a crime, of course. He has the right to think whatever he wants to about Al-Qaeda.
As the executive director of the American Civil Liberties Union (ACLU) of Massachusetts, Carol Rose commented:
“Under the government's theory of the case, ordinary people--including writers and journalists, academic researchers, translators, and even ordinary web surfers--could be prosecuted for researching or translating controversial and unpopular ideas. If the verdict is not overturned on appeal, the First Amendment will be seriously compromised.
The government's prosecution does not make us safer. Speech about even the most unpopular ideas serves as a safety valve for the expression of dissent while government suppression of speech only drives ideas underground, where they cannot be openly debated or refuted.”
But in the closing days of 2011, as we look back on the year that’s passed, what other meaning can we grasp from Mehanna’s conviction? This year, in which an American citizen was assassinated by the American government without charge or trial for his (admittedly overt) support for Al-Qaeda. [Or as one author put it: “If the government can kill someone for posting extremist sermons on the internet, why can’t it put someone in prison for doing the same thing?] Now that the 2012 National Defense Authorization Act has passed, it might give us pause to wonder... What if Mehanna hadn’t been convicted? What about the next American citizen or foreign national whom the United States claims is a supporter of Al-Qaeda, but this time without letting a jury decide? Indefinite detention or military trial it may be, crime or no crime...
Nor is this just happening in the US. Just last week, Ahmad Faraz was convicted under the Terrorism Act of 2006 (for the “dissemination of terrorist publication”) and section 58 (which criminalizes possession of terrorist material). The charge? Distributing books that are widely available in many corporate bookstores and public libraries. The key book in the case was Syed Qutb’s Milestones, which was outlawed and burned by Nasser in 1960 as he cracked down on the Muslim Brotherhood. (Faraz received a three year sentence).
And it’s not even just about the “terrorists” themselves. Just a few weeks ago, for the first time, a woman faced a potential prison sentence for the crime of... wearing a burqa. In Canada, women can no longer take the citizenship oath while wearing the niqab or the burqa. The list could go on and on.
What path has 2011 carved for us, in which the way we think, the books we read, or the clothes we don, become markers for our propensity to terrorism, or even our determine our right to walk down the street? It’s terrifying to think how quotidian it has become to ban or criminalize what we fear, and what we are unable to understand. May 2012 be more hopeful.
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