‘Material support’ and the case of Tarek Mehanna

Tarek Mehanna

Tarek Mehanna

In today’s Boston Globe, civil-liberties lawyer and friend of Media Nation Harvey Silverglate explains in chilling detail the constitutional underpinnings — or, rather, the absence of such underpinnings — in the 2012 conviction of Al Qaeda sympathizer Tarek Mehanna.

Mehanna’s conviction on charges related almost entirely to his labors as a propagandist and translator led to the first of two Muzzle Awards for U.S. Attorney Carmen Ortiz. (The second was for her unconscionable crusade against the young Internet visionary Aaron Swartz, who committed suicide while facing prison for downloading academic articles without permission.)

Silverglate and his associate Juliana DeVries write in the Globe that the First Circuit Court of Appeals recently upheld Mehanna’s conviction and 17-year prison term on the basis of a 2010 U.S. Supreme Court decision, Holder v. Humanitarian Law Project. That decision, Silverglate and DeVries write, “allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute ‘material support’ to terrorists.”

Such a standard would appear to fly in the face of rulings such as the landmark Brandenburg v. Ohio decision of 1969, in which it was held that even vile, hateful calls to violence (the case involved the Ku Klux Klan) were constitutionally protected unless they were likely to result in an immediate conflagration. Silverglate and DeVries put it this way:

With the Humanitarian Law Project decision, the civic life of our free nation took a radical, though under-appreciated, turn for the worse. “Material support” is now a top contender for the American equivalent of the Soviet (now Russian) “hooliganism” statute, a notoriously vague criminal law that enabled the imprisonment of any opponent of dictator Josef Stalin’s regime…. A “material support” charge is a product not of our nation’s legitimate anti-terror concern, but of its overreaction and paranoia.

The Mehanna case was not entirely clear-cut from a legal point of view. He was also convicted of seeking (unsuccessfully) to join Al Qaeda fighters in Yemen and of lying to the FBI. But Ortiz went out of her way to prosecute Mehanna for his expressive activities, and his loathsome rhetoric was given an ample airing before the jury.

Mehanna is no mere Sudbury pharmacist, as his supporters would have you believe. But it is a fact that he is serving a prison term today because he expressed what he was thinking — an activity that is supposed to be protected by the First Amendment under nearly all circumstances.

Several years ago the late Anthony Lewis wrote a wonderful primer on the First Amendment called “Freedom for the Thought That We Hate.” Sadly, that freedom is becoming more and more a part of the past.

Booking photo of Mehanna in 2009 from the Sudbury Police as published at Boston.com.

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3 thoughts on “‘Material support’ and the case of Tarek Mehanna

  1. thomas keating

    Please stop accusing Carmen Ortiz of the death of Aaron Swartz. His depression was well known, and depression is a well known cause of suicide, and is conveniently left out of your discussions concerning his death. Please do what Fox cannot do, be fair and balanced.

    1. Dan Kennedy Post author

      @thomas: Only my opinion, of course, but I believe Aaron Swartz would be with us today if Ortiz hadn’t insisted on a prison sentence, which was completely unwarranted given the facts of the case. Yes, he was depressed, and yes, it’s possible that he would have committed suicide regardless.

      1. thomas keating

        Again, Aaron Swartz did break the law, a law you may not like, but it is the law, and Swartz was uncooperative. What other action could the federal court proceed with? He had choices, too.

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