Applying the Holder standard to speech that provides material support to terrorism in United States v. Mehanna.

• Author: Pochon, Christopher

In April 2012, Tarek Mehanna was convicted and sentenced to seventeen and a half years in federal prison for providing "material support" to al-Qaeda. (1) During his trial, the prosecution alleged that Mehanna traveled to Yemen in an unsuccessful attempt to receive terrorist training, (2) and that he translated al-Qaeda propaganda materials into English for a jihadist website. (3) In the national media storm following the trial, Mehanna's supporters argued that he was persecuted for exercising his First Amendment rights. (4) The American Civil Liberties Union (ACLU) warned that if the verdict is not overturned, "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." (5) Yet Mehanna's conviction does not present the grave danger to First Amendment rights that his supporters claim. This issue had already been settled by a previous Supreme Court case. In Holder v. Humanitarian Law Project, (6) the Supreme Court drew a hard line between independent advocacy, which is protected under the First Amendment, and speech that provides material support "in coordination with" a terrorist organization, which is not protected. (7) As the evidence at trial made clear, Mehanna's behavior fell into the latter category. The First Amendment protects those who express unpopular views, but it does not grant Mehanna the right to serve as an agent in al-Qaeda's criminal enterprise.

Tarek Mehanna, an American-born Muslim, grew up in Sudbury, Massachusetts. (8) Following the U.S.-led invasion of Iraq in 2003, Mehanna became increasingly opposed to the American presence in the Middle East and began to advocate for the violent expulsion of American forces from Iraq. (9) At first, Mehanna limited his activities to posting on jihadist websites. (10) In early 2004, however, Mehanna traveled to Yemen with Ahmad Abousamra and another American Muslim whom he had met online. (11) They spent two weeks together in Yemen, crossing the desert in an effort to find mujahideen fighters that had settled there after leaving Afghanistan. (12) The government alleged that they were searching for terrorist training camps that would provide them with the training they needed to fight against the American forces in Iraq. (13) Ultimately, however, their trip ended in disappointment. They found no terrorist training camps. (14) When they finally did manage to meet one of the mujahideen fighters from Afghanistan, he told them all of the camps had been closed down after the September 11th attacks. (15)

After their trip to Yemen, Abousamra continued on to Iraq to join the fight against American forces there. (16) Mehanna returned home to Massachusetts, but he was detained upon arrival for questioning by Border Patrol and Immigration and Customs Enforcement (ICE) agents. (17) Mehanna told them that he and Abousamra had gone to Yemen to visit Islamic schools, and that Abousamra had decided to stay behind in Yemen. (18) The government alleged at trial that Mehanna knew Abousamra had gone to Iraq to fight against American forces. (19)

Following his trip to Yemen, Mehanna continued to post on jihadist websites. (20) He also began translating videos and written materials from Arabic into English for a website called "Tibyan Publications." (21) At trial, two expert witnesses disagreed about the relationship between al-Qaeda and Tibyan Publications. One of the experts, Evan Kohlmann, testified that al-Qaeda's media wing directly coordinated with Tibyan. (22) Kohlmann testified that al-Qaeda would provide propaganda materials to Tibyan before al-Qaeda released the materials on other sites, so that Tibyan would be able to translate the materials into different languages before they were released to the public. (23) Dr. Marc Sageman, the other expert, testified that al-Qaeda "piggybacked" on sites like Tibyan by posting propaganda materials in Arabic on multiple jihadist websites, but he disagreed that al-Qaeda used Tibyan as a recruiting tool. (24) Although he acknowledged that al-Qaeda uses the internet to distribute its message, (25) Dr. Sageman denied that jihadist websites are necessary to help al-Qaeda find recruits or receive financial support. (26)

One of the materials that Mehanna translated for Tibyan was "Expedition of Umar Hadeed," a film created by al-Qaeda in Iraq to glorify their mission there. (27) The government alleged that Mehanna and Muraabit Mu'ndhir, one of the website administrators at Tibyan, edited the original Arabic version of the film and added English subtitles, before releasing it as a production of the media department of al-Qaeda in Iraq. (28) The government also alleged that al-Qaeda did not release the film to the general public until after Mehanna and Mu'ndhir edited it. (29) One week later, Mu'ndhir wrote a private message to Mehanna with another translation request, telling him, "The ikhwaan ['brotherhood'] from the cloud people are asking us if we can translate this msg from the al doctoor regarding curryland." (30) An expert witness for the government testified that "cloud people" referred to al-Qaeda's propaganda arm, A1 Sahab, and that "al doctoor" referred to the prominent al-Qaeda leader Dr. Ayman al-Zawahiri. (31) The government also alleged that "curryland" was a code word for Pakistan. (32) Though Mehanna received the request, the evidence presented at trial did not show that Mehanna actually translated any message from al-Zawahiri concerning Pakistan. (33)

Mehanna did, however, translate 39 Ways to Serve and Participate in Jihad, (34) a book by the al-Qaeda leader Mohammad Bin Ahmad A1-Salem. The book is widely available in Arabic, and there are also full-text English translations of the book available on several websites. (35) Mehanna released his own translation on the website as a production of Tibyan Publications. (36) Some of the ways one can participate in jihad, according to the book, are to "Truthfully Ask Allah for Martyrdom" and "Go For Jihad Yourself"; other ways to participate, however, include "Learn[ing] to Swim and Ride Horses" and "Get[ting] Physically Fit." (37) At trial, the government described the book as a terrorist "training manual." (38)

Mehanna was arrested in 2009. (39) He was charged before Judge George O'Toole in the Federal District Court for the District of Massachusetts with the crimes of providing and attempting to provide material support to a foreign terrorist organization, (40) conspiracy to provide material support to terrorists, (41) conspiracy to kill, kidnap, maim or injure persons in a foreign country, (42) and making false or fraudulent statements to the United States in the course of the business of the executive branch. (43) After a thirty-five day trial, the jury convicted Mehanna on all seven counts. (44)

At trial, Judge O'Toole instructed the jury on the Holder standard (45) over defense counsel's objections. (46) Under the Holder standard, providing material support to foreign terrorist organizations is not protected by the First Amendment. (47) Holder, decided by the Supreme Court a year before Mehanna's trial, involved a group called the Humanitarian Law Project that wanted to provide support for the humanitarian and political activities of the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). (48) Both the PKK and the LTTE were designated by the State Department as foreign terrorist organizations. (49) Under Section 2339B of Title 18 of the U.S. Code, Providing Material...