By Rachel Levinson-Waldman
Ronald Reagan famously said that the nine most terrifying words in the English language are "I'm from the government and I'm here to help." These days, the mantra is more likely to be "I'm from the government and I'm here to help you think." When it comes to matters involving national security, the government seems intent on shielding Americans' impressionable minds. The recent indictment, conviction and sentencing of a Massachusetts pharmacist named Tarek Mehanna is another blow to the public's ability to hear, study and discuss controversial ideas.
Mehanna, an American citizen born in Pennsylvania and raised in Massachusetts, was vocally opposed to the American presence in the Middle East and advocated for the violent expulsion of U.S. forces from Iraq. He attempted to convert belief to action, traveling to Yemen in search of a terrorist training camp and lying to American terrorism investigators. He was charged and convicted last December for a number of offenses, including Conspiracy to Provide Material Support to Terrorists and Conspiracy to Kill in a Foreign Country. He was sentenced in mid-April to 17 ½ years in prison.
One might say: good riddance. But the government put Mehanna away not just for his efforts to wage war against Americans in a foreign country. The "material support" charge also alleged that Mehanna broke the law by accessing and sharing information. Specifically by translating a book (a 2003 Saudi text, 39 Ways to Serve and Participate in Jihad, that was "intended to incite people to engage in violent jihad"); distributing a video showing the brutal treatment of dead U.S. military personnel in retaliation for a rape in Iraq; and giving a friend a film about jihadi fighters.
Since the Vietnam War, the Supreme Court has assured the speaker on his soapbox and the scholar in her office that speech is not criminal unless it "incites" listeners to "imminent lawless action." In Brandenburg v. Ohio (1969), the Court unanimously overturned the conviction of an Ohio Klan leader who was filmed warning a crowd that "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." The opinion, holding that "mere advocacy" may not be punished, reversed decades of precedent permitting states to imprison speakers for criticizing American military efforts and capitalism. The same year, in Stanley v. Georgia, the Court affirmed the long-standing Constitutional right "to receive information and ideas." In the admittedly murky realm of free speech protection, Brandenburg has until recently remained a First Amendment cornerstone.
In 2008, the Supreme Court took a major swipe at Brandenburg. In a case called Holder v. Humanitarian Law Project, the court addressed the material support provision of the USA PATRIOT Act, which criminalizes the delivery of "property" or "services," including "expert advice or assistance," to any group designated as a "foreign terrorist organization." The court held that this statute could be used to prosecute pure speech -- in that case, the provision of counseling by human rights groups to terrorist organizations on the use of non-violent means to resolve political grievances. Notwithstanding Brandenburg, the court held that the speaker need not specifically intend to further a group's terrorist acts; he need only know that the group participates in terrorism to run afoul of the Act.
As Justice Roberts recognized, however, the speech must be coordinated with the group; "independent advocacy," even if it benefits a terrorist organization, may not be prohibited under the First Amendment. Indeed, the government itself flatly declared in its brief to the Court that the material support statute "does not prohibit independent advocacy or expression of any kind."
Notwithstanding this promise, Mehanna's 2010 indictment clearly targets his independent advocacy. While he fancied himself the "media arm" of Al Qaeda, there is no indication in the indictment that any of his activities were undertaken at the behest of, in conjunction with, or under the direction of Al Qaeda. The consequences of the government's censorship extend, however, far beyond the fate of an aspiring terrorist. Criminalizing the translation of a book or the distribution of a video chills both scholars and the public at large, sending the message that they study certain sources at their own peril.
The indictment says, for instance, that Mehanna and his co-conspirators favorably compared 39 Ways to Mein Kampf. But just as anyone undertaking an in-depth study of the Nazi period would surely need to start with Mein Kampf, a scholar studying the development of jihadist violence in modern history would surely do well to read, and translate, 39 Ways, or to watch the videos from which jihadis are drawing inspiration. To be sure, the motives behind such use of these resources might differ from Mehanna's motives. According to Humanitarian Law Project, however, benign intent is irrelevant. Mehanna's conviction suggests that, to paraphrase George Santayana, those who study history may be doomed to spend five to ten years in federal prison.
When combined with the ability to shield its own information from disclosure, the ability to limit information from private sources allows the government to effectively control public debate and opinion on controversial issues and to check the public's right to receive information -- indeed, to "create its own reality," as Karl Rove famously said. Take the government's use of a CIA drone to kill U.S. citizen Anwar Al-Awlaki, a Muslim cleric accused of inspiring others to deadly violence. In a welcome development, the government officially acknowledged the drone program. Nevertheless, the government continues to reveal only its own carefully vetted facts about the drone program and its targets; little information on the scope of civilian casualties, for example, is available. And if members of the public want to judge for themselves whether al-Awlaki's sermons were so inflammatory as to justify his killing, they will be hard pressed to do so. Visiting any of the websites that might feature videos of Al-Awlaki's speeches would likely invite FBI scrutiny. Translating or disseminating them to others, we now know, could invite a 17 ½-year prison sentence.
Justice Felix Frankfurter observed over sixty years ago that "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Tarek Mehanna may not be a very nice person. But the narrowing of his liberties has consequences for us all. When it is a crime to translate our enemies' propaganda, the government will have the last word on who is dangerous, what ideas are dangerous, and, indeed, what the content of those ideas are. Anyone who believes in the freedom of thought -- let alone freedom of speech -- should be alarmed by such a state of affairs.
Rachel Levinson-Waldman is Counsel for the Brennan Center for Justice's Liberty and National Security Program.