The Air Goes Out of the Balloon: The Tarek Mehanna Appeal

We will post a full summary of the First Circuit Court of Appeals's decision in the case of Tarek Mehanna soon. A brief thought in the interim. The Mehanna case sparked a big First Amendment debate---on this site between David Cole and Peter Margulies (see also here and here)---during and after his prosecution in Massachusetts for alleged conspiracy to provide material support to Al Qaeda. Mehanna was prosecuted both for traveling to Yemen in an abortive effort to take terrorist training there and for subsequent internet postings of jihadist statements---which he allegedly translated on Al Qaeda's behalf. I wrote in response to the Cole-Margulies debate last year that "Their exchange convinces me that the merits of this First Amendment case are enormously fact-dependent. I will therefore wait, before expressing an opinion, to see the record that emerges in the appellate proceedings." I feel a bit vindicated by that caution by the opinion that has emerged---which avoided the apparently-considerable First Amendment issues in the case entirely. Marty Lederman summarizes it well over at Just Security:

The court of appeals concluded that the four charges in question were fully supported by evidence relating to an incident that occurred before Mehanna’s Internet activities — namely, his travel to Yemen in 2004, where he unsuccessfully searched for a jihadist training camp at which he could learn how to fight against the U.S. in Iraq.  The court concluded that the evidence entitled the jury to find that the Yemen trip constituted an effort by Mehanna to provide material support to a terrorist organization, and to provide such support, in particular, in the service of an effort to kill persons abroad. There’s one catch, however:  The government had offered the jury two theories in support of the four charges–the Yemen trip and and Mehanna’s subsequent Internet activities–and successfully urged the trial court to ask the the jury to return a “general” verdict, i.e., one in which a finding of guilt on the four charges would not and did not specify which of the two evidentiary predicates (or both) supported the jury’s verdict. The court of appeals held that the general guilty verdict could be sustained, even assuming for the sake of argument that the evidence of coordination with al Qaeda on Mehanna’s Internet activities had been inadequate to support that verdict–that is to say, even if Mehanna’s translation and advocacy were constitutionally protected.  The court reasoned as follows:

[W]e have no occasion to examine the factual sufficiency of [the translation/advocacy] activities as a basis for his terrorism-related convictions.  Even if the government’s translation-as-material-support theory were factually insufficient, we would not reverse: the defendant’s convictions on the affected counts are independently supported by the mass of evidence surrounding the Yemen trip and, under Griffin [v. United States, 502 U.S. 46 (1991)], we need go no further.

By eliminating Mehanna’s Internet activities altogether from the issues on appeal, the court thereby ensured that Mehanna will not be the important First Amendment precedent that many had thought it might be.

I think this is right. The First Circuit decision, written by Judge Bruce Selya, makes a strong case that the Yemen trip evidence justifies the conviction alone (see pp. 11-19) in a kind of garden-variety material support sort of way. The decision focuses on Mehanna's specific intent in going to Yemen as evidenced in statements, testimony, and subsequent cover up. While Judge Selya doesn't ignore the First Amendment issues---which come up in the context of a challenge to a jury instruction (see pp. 19-28)---they are nowhere near as central to the disposition of the case as you would think from reading the exchanges from last summer. In those exchanges, both Cole and Margulies acknowledge the Yemen trip, but both focus on the question of whether the propaganda efforts Mehanna engaged in were constitutionally protected, as Cole suggests, or coordinated with Al Qaeda and thus not protected, as Margulies suggested. In the end, the court saw "no occasion" to resolve this dispute---fascinating though it is. It was enough that a jury could reasonably conclude that Mehanna "traveled to Yemen with the specific intent of providing material support to al-Qa'ida, knowing or intending that this support would be used in a conspiracy to kill persons abroad," that he "attempted to provide such material support, knowing or intending that it would be used in a conspiracy to kill persons abroad," and that he "while in the United States, conspired with others in a plan to kill persons abroad."