Peter Margulies Responds to David Cole

While David Cole’s passionate defense of the First Amendment is always welcome, David overshoots the mark in his recent post on the Mehanna case.  The Supreme Court held in Holder v. Humanitarian Law Project (see my analysis here) that Congress could constitutionally prohibit speech-related activity performed under the direction and control of a designated foreign terrorist organization (DFTO), such as Al Qaeda or Hamas.  The Court, in an opinion by Chief Justice Roberts in which Justice Stevens joined, found that DFTOs routinely use negotiation and turns toward nonviolence to fundraise for fresh attacks on civilians.  Individuals who knowingly or unwittingly assist the DFTOs’ deceit injure international cooperation and ratchet up terrorist violence.  In his unsuccessful argument to the Supreme Court on behalf of the Holder plaintiffs, David conceded that the distinction between a DFTO’s violent and putatively nonviolent activities made no sense for Al Qaeda, whose commitment to violence is obvious.  In backing away from his concession in the Mehanna post, David thus breaks new ground.

This is ironic, because Mehanna is actually a relatively easy case.  Tarek Mehanna was convicted in December, 2011 in federal court in Massachusetts of conspiring to commit violence in this country, go to an Al Qaeda training camp abroad, and furnish Al Qaeda with propaganda.  David is right that this last charge has First Amendment implications, since propaganda is speech.  However, U.S. courts have regularly permitted prosecutions of individuals, such as World War II’s infamous Tokyo Rose, who knowingly provided propaganda to nations engaged in war against the U.S.  In principle, the rule should be no different for DFTOs.  For such groups, propaganda is inextricably linked to operations; terrorist plots are not random, but are carefully planned to maximize propaganda value.  Propaganda spread by the group is not separate from, but indeed is crucial to, the group’s operations.

Mehanna made two claims at trial to counter the government’s charges.  First, he claimed the material he provided consisted of translations into English of prominent texts justifying violent jihad.  Mehanna said that these texts were of scholarly value, and had a merely abstract relationship to any particular acts of violence.  Second, Mehanna said that he had posted these texts to an on-line chat room visited by individuals with a purely intellectual interest in these texts.  Members or organizers of the chat room who had requested that Mehanna translate the documents were, according to Mehanna, acting independently of Al Qaeda.  Mehanna therefore sought refuge in doctrine, ably unpacked by David, holding that the expression of abstract views supporting violence by someone acting independently of a DFTO is protected by the First Amendment, when those views happen to coincide with those of the DFTO itself.  At least in the domestic setting, such views do not meet the test for incitement, which as David correctly noted requires the intent to cause imminent harm and the reasonable likelihood that such harm will result.

The government saw Mehanna’s case differently.  It successfully argued at trial that Mehanna knew that the chat room, sponsored by an entity called Tibyan Publications, was in fact run by persons from Al Qaeda’s network, including the notorious Abu Qatada, who has long encouraged extremist violence from the United Kingdom while resisting extradition for past terrorist acts.  American, Canadian, and British visitors to the chat room, which was password-protected, had sought to attend training camps or provide other assistance to Al Qaeda.  Mehanna repeatedly lied to federal investigators about his role.  The government took the reasonable position that terrorist networks are not hierarchical, but instead are widely dispersed.  Organizations like Al Qaeda do not carry business cards, and security concerns mean that Al Qaeda’s former leader, Osama bin Laden, or current leader, Dr. Ayman al-Zawahiri, rarely offer specific operational advice.  Instead, most orders and advice come from a broad group of people around the world.  Courts have never required the government to prove that conspirators in ordinary cases involving drugs or organized crime had contact with the kingpins of the organization.  The government can prevail in such cases by simply showing that defendants were “spokes in a wheel,” who had agreed with other conspirators to further the conspiracy’s objectives.  Proving conspiracy to provide material support to a DFTO like Al Qaeda should be no different, the government argued; the jury agreed.

Unlike the plaintiffs that David represented so ably in Holder, Mehanna clearly intended to spur violence.  Indeed, he boasted to friends that he was part of Al Qaeda’s media arm in the United States.  David is right that independent speakers with extreme views should be protected by the First Amendment.  But shills for Al Qaeda should not be.  By assembling propaganda at Al Qaeda’s direction to further the recruitment of new operatives, Mehanna placed himself in this category.  The Constitution does not bar Congress from deterring Mehanna and those who would follow his example.