It is a frightening scenario. Nine heavily armed men conduct military-style training in preparation for a terrorist attack involving the bombing of a funeral for the police officer they had killed three days earlier.
Over a two-year period, a paid FBI informant and FBI agent infiltrates their cell, discusses building bombs and getting explosives and tapes their conversations. By the time their homes are raided, they had amassed instructions and material for making bombs, night vision binoculars, machine guns, assault rifles, 148,000 rounds of ammunition, body armor, gas masks, tear gas, knifes and swords.
Before their trial started, one of their members took a plea bargain, admitting the group “advocated” and prepared for violence against local, state and federal law enforcement. True, the government’s case was not helped when the informant who received $31,000 to infiltrate the group got arrested for shooting at his wife, but it still seemed like the case against the others would be a slam dunk – right?
Well, it almost certainly would have been if they were Muslims. It is difficult to imagine any judge extending the protection of the First Amendment to taped conversations between Muslims stating that they should “start hunting” law enforcement “pretty soon” and that “it is time to strike and take our nation back so that we may be free again from tyranny.”
But that is what a Michigan federal judge, Victoria Roberts, did on 27 March in the case involving seven members of the Hutaree militia of self-described “Christian warriors.” Throwing out the most serious charges against the four members of the Stone family and their associates, she declared that the case was “built largely of circumstantial evidence” and that the alleged plot to kill a local police officer and then attack his funeral procession is “utterly short on specifics.”
While the prosecution insisted “these individuals wanted a war,” Judge Roberts agreed with the defense attorney William Swor who said that the group’s leader, David Stone, “was exercising his God-given right to blow off steam and open his mouth.”
In the words of the judge, his “statements and exercises do not evince a concrete agreement to forcibly resist the authority of the United States government. His diatribes evince nothing more than his own hatred for – perhaps even desire to fight or kill – law enforcement; this is not the same as seditious conspiracy.”
At a time when armed extremist anti-government groups may have as many as 100,000 adherents, Judge Roberts’ homage to the breadth of First Amendment protected speech may appear welcome to some and foolhardy to others. But there is no denying that it highlights the chasm between the prosecutions carried out against suspected Muslim terrorists, and the homegrown domestic brand that gave us Timothy McVeigh.
On 12 April, in the federal district court in Boston, Tarek Mehanna, convicted late last year on various material support to terrorism charges, was sentenced to seventeen and a half years in a Supermax prison. From the time he was a teenager, this 29-year old pharmacist from Sudbury was subjected to every kind of surveillance the FBI could muster – secret sneak and peek searches, FISA wiretaps, the seizure of his emails, the use of informants.
Having spent three years in solitary confinement, he faced decades more in prison after being convicted of plotting to go to Yemen for military training (which he never had), translating classical Islamic texts into English and expressing his views about the invasion of Iraq on websites. He also was taped stating that taking up arms against the US would be a violation of Islam since he lived and practiced his religion here.
Over 220 of Mehanna’s supporters in an overflow room watched on a screen as prosecutor Aloke Chakravarty in his pre-sentencing remarks stressed the “gravity” of Mehanna’s offenses. Over a decade ago, he claimed, “this defendant began to radicalize” and to radicalize others to “visit violence” on Americans. Although he failed in his efforts to find a terrorist training camp when he visitedYemenin 2004, he found his niche, the prosecutor stated, serving as the “media wing” of al Qaeda, translating documents, and sharing videos.
No evidence was presented in court directly linking him to a terrorist group. He never hatched a plot – indeed, he objected when a friend (who went on to become a government informer and has never been charged with anything) proposed plans to stage violent attacks within the United States. He did, however, lie to the FBI.
The defense asked the judge to focus on “what the defendant did and did not do” – he went to Yemen for one week eight years ago. He refused to go to Iraq with the friend whom the government later enlisted as an informer. He was under close FBI scrutiny for more than eight years – if he was so dangerous, why did the FBI wait so long to arrest him?
Prejudice and Precedent
The country has clearly traveled a long way since an Idaho jury in June 2004 found that the web activity carried out by a Saudi graduate student, Sami Omar Al Hussayyen, was protected by the First Amendment. He had been indicted in a blaze of publicity for setting up websites for Islamic organizations and posting inflammatory messages on the Internet.
After a seven-week trial, where the defense presented only a single witness – a former CIA operative who cast doubt on the government’s assertion that people become jihadists because of what they read on line – the jury acquitted him of the serious charges against him.
Just as in the Sami al-Hussayen case, the prosecution in the Mehanna case made the material support statute a vehicle for the suppression of unpopular ideas that fall within the boundaries of the First Amendment – including watching ‘Jihadi’ videos with others, lending CDs to “create like-minded youth,” translating texts freely available on the internet. Why did it turn out so differently?
The explanation, at least in part, appears to lie in the widespread acceptance of the notion of a “domestic radicalization process” promoted through internet activity, which was first put forward by the New York Police Department in its 2007 report, Radicalization in the West: The Homegrown Threat.
This is the same NYPD which mapped its ethnic communities, carried out wholesale monitoring of Muslims, and in the years ahead, would screen the Islamophobic film The Third Jihad to nearly 1.500 of its new recruits and officers.
For the prosecution, Tarek Mehanna serves as a poster boy for the radicalization thesis: a dangerous “violent extremist” who “lived a double life” and never “expressed any remorse for his crimes.” This “angry, callous and calculating man” was radicalized himself and then set about using his language skills and the internet to radicalize others, just as the NYPD had warned.
The NYPD analysis figured prominently in the pre-sentencing hearing submissions forwarded by the US Attorney’s Office to Judge George O’Toole. Among them is a May 2008 staff report from the Senate Homeland Security Committee, Violent Islamic Extremism, The Internet and the Homegrown Terrorist Threat which reads like a primer on the government’s case against Mehanna.
Quoted in the report is Lawrence Sanchez, Assistant Commissioner of the NYPD’s Intelligence Division – who, thanks to an investigation by the Associated Press, we now know to be a CIA operative and the architect of the NYPD’s blanket monitoring of Muslims.
Also quoted in the document is Dr. Marc Sageman, a former CIA Operations officer and counter-terrorism expert – who testified for the defense in the Mehanna trial, an uncomfortable fact which the government preferred to skirt. Taking a similar line to the CIA operative who testified for Sami Omar al Hussayyen, Marc Sageman argued in court that the videos which Mehanna downloaded and shared were insignificant as recruiting tools.
Some Serious Sentiments
When Tarek Mehanna personally addressed the court, he described the moment when he was approached by two federal agents who said he could do things the easy way or the hard way: if he chose the easy way, he would never see the inside of a cell.
Mehanna then eloquently talked about the world view he adopted during his childhood when he avidly read Batman comics and then books like Uncle Tom’s Cabin and began to see the world in terms of the oppressor and the oppressed. He talked of learning about the struggles against slavery and for civil rights, and how impressed he was by Malcolm X and his transformation from a petty criminal to a devout Muslim. It was this, he said, that made him look more deeply into Islam and become increasingly devout.
And then he began to look to what was happening to Muslims around the world. He was horrified by the suffering caused by the sanctions on Iraq and Secretary of State Albright’s comment that the death of half a million children because of the sanctions was “worth it.” Deeply angered by the “shock and awe” US invasion, he described how affected he was by atrocities committed by American forces in Iraq and Afghanistan.
In his view, what the government had really put on trial was his belief that Muslims in other countries had the right to defend their own land from foreign invaders, including Americans. He thinks “one day America will change. One day people will look back with horror at how hundreds of thousands of Muslims were killed by American soldiers.” Meanwhile, he is the one who will go to prison as a “terrorist.”
A Tragic Travesty
In a striking departure from Judge Victoria Roberts, Judge George O’Toole in the Boston federal district court refused to allow the First Amendment to be introduced in the Mehanna case. He refused to admit an ACLU of Massachusetts brief asking for certain charges to be dismissed on First Amendment grounds, he did not allow defense attorneys to bring up the First Amendment and he did not instruct the jury on what the First Amendment protects.
Defense attorney Jay Carney also countered that Tarek Mehanna was being punished for activity protected by the First Amendment, for translating documents freely available in Arabic on the Internet and for his refusal to be an informant. The government, Carney said, does not want people to be able to read the views that other people hold. “This case goes further than any other in attacking speech protected by the First Amendment,” and involved important constitutional issues at every turn.
Not only did the prosecution and judge shun any discussion of what the First Amendment protects and does not protect. They steered clear of the Supreme Court’s 2010 Holder v. Humanitarian Law Project ruling which criminalizes any kind of “material support” if carried out in connection with a group on the State Department’s terrorism list, while upholding “independent advocacy,” even of the most controversial kind.
Mehanna’s translations were independent advocacy, the defense claimed, and the government had never proven otherwise: “The impact of the harms created through that work is huge,” US Attorney Chakravarty asserted. “We don’t know how many have been radicalized…people around the world are consuming his work…The damage he has done will linger.”
The nub of the government’s position appears to be this: extending the protection of the First Amendment to what Muslims like Mehanna do online is no longer an option if it serves to cloak a supposed process of radicalization that could ultimately be much more dangerous than anything the Hutaree could cook up.
While the prosecution showed 9/11 videos to the jury and sprinkled its language during the trial and in its sentencing memorandum with repeated references to al Qaeda, the defense maintained that “the government has from the beginning of the case attempted to portray Mehanna as weaving some kind of spell over others to bring them into a terrorist cell. This is a fantasy of the government’s own making.”
Unlike the Hutaree, Mehanna never owned a gun or made an explosive. But at his refusal to become an FBI informant, he was warned that the agency would make his life hell unless he cooperated with them. The prosecutor went on at length about Mehanna’s “reticence to assist the government” – that is, become an informant, maintaining that nothing is wrong with soliciting cooperation if it is necessary to keep the country safe.
While the Hutaree judgment sent the message that core Constitutional values are not to be trifled with, Mehanna’s conviction conveyed this warning: if you are Muslim and criticize US foreign policy, you too can be prosecuted – unless you agree to play the FBI’s game.
In her closing argument during the trial, defense attorney Janice Bassil stated that:
‘The only idea that Tarek Mehanna had in common with al Qa’ida is that Muslims had the right and the obligation to defend themselves when they were attacked in their own lands. And we believe that. When the British came to reassert their hold over America – let’s face it, we were a colony – we fought back. We rebelled. We defended our land.’
The lesson of the Mehanna case is that where Muslims are concerned, sentiments like these could constitute ‘thought crime’. The Mehanna case ruling and sentencing also suggest that Muslims do not have the right to protected speech, and that “venting” can cost them the long years in prison spared the Christian Hutaree militia.