‘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.

Get ready for the 16th Annual Muzzle Awards

When The Boston Phoenix ceased publication in March, I started casting about for a new home for the Muzzle Awards — an annual Fourth of July round-up of outrages against free speech in New England that I began writing in 1998.

On Tuesday we made it official — the 16th Annual Muzzle Awards will be published on Thursday by WGBH News. I talked about the Muzzles on “Boston Public Radio” with Jim Braude and Margery Eagan. We gave a sneak preview of some of the “winners,” including U.S. Attorney Carmen Ortiz, Boston Police Commissioner Ed Davis and Maine Gov. Paul LePage.

The Muzzles will also be published in The Providence Phoenix and The Portland Phoenix, which are still alive and well.

I think WGBHNews.org will prove to be a good home base for the Muzzles. Boston civil-liberties lawyer Harvey Silverglate, who came up with the idea all those years ago, is continuing with his Campus Muzzles. Former Phoenix editor Peter Kadzis, who’s now at WGBH, was instrumental in bringing the Muzzles to the station and expertly edited them. Also playing key roles were Phil Redo, managing director of WGBH’s radio operations; Linda Polach, executive producer of “Greater Boston” and “Beat the Press”; and Abbie Ruzicka, an associate producer who handled Web production duties.

Like a phoenix rising from the ashes …

Edward Snowden and the peril facing journalism

Edward Snowden
Edward Snowden

This commentary was published earlier at The Huffington Post.

The editors of The New York Times appear to have forgotten an important principle: the First Amendment is for all of us, and does not grant any special privileges to the institutional press. Thus if Edward Snowden is prosecuted for leaking classified documents about the National Security Agency’s secret surveillance programs, the news organizations that published those documents could face criminal charges as well.

The possibility that journalists could be in legal jeopardy for doing their jobs seems not to have occurred to whoever wrote an editorial in today’s Times, which argues that Snowden should be prepared to pay the price for civil disobedience by way of his leaks to The Guardian and The Washington Post.

Though the editorial dismisses the absurd notion that Snowden has committed treason, it concludes with this observation, which comes across as semi-sympathetic but contains toxic implications: “Mr. Snowden may well be going to jail for exposing practices that should never have been secret in the first place.”

In fact, if Snowden, as seems likely, is charged under the Espionage Act of 1917, there is nothing to stop the government from going after The Washington Post as well — or The Guardian, if someone would like to seek extradition of Glenn Greenwald, who broke the story, and his editor, Alan Rusbridger.

American journalists in these situations operate on the premise that they are free to publish information even if the source or sources who gave it to them violated the law in obtaining it. That’s largely true — First Amendment protections against censorship are extraordinarily high. The corollary, though, is that there may be consequences to be paid post-publication.

The best-known example is the Pentagon Papers, a case that should be near and dear to the hearts of Times editors. In a 6-3 decision, the U.S. Supreme Court ruled that the Times and the Post could not be prevented from publishing the government’s secret history of the Vietnam War.

But as civil-liberties lawyer Harvey Silverglate pointed out in a 2006 article for The Boston Phoenix, five of the nine justices essentially invited the government to file charges against the Times and the Post after publication — and the Nixon administration was preparing to do just that before it got caught up in the burgeoning Watergate scandal.

Silverglate was concerned that the Times faced possible charges under the Espionage Act for revealing the existence of the Bush administration’s warrantless wiretapping program. Even though the program illegally circumvented the Foreign Intelligence Surveillance Court, then-president George W. Bush called the Times’ reporting “a shameful act” — and Gabriel Schoenfeld, writing in Commentary, was just one on the neocon right who argued that the Times should be prosecuted.

More recently, the Times published many of the WikiLeaks documents exposed by Bradley Manning, who is now on trial and who may face a life sentence. And in 2010 John Cook posted a short piece in Gawker making the commonsense observation that the Times potential liability was precisely the same as that of WikiLeaks founder Julian Assange, who had been targeted by Attorney General Eric Holder. Cook wrote:

So if it was a crime when Assange obtained the database, why wasn’t it a crime when the Times did? The Espionage Act makes no distinctions when it comes to sources of defense information: It’s a crime to “obtain [it] from any person, or from any source whatever.” Assange got it from Manning, the Times got it from the Guardian; both transactions are equally criminal under the act.

More than a year ago, I argued that President Barack Obama was engaged in a “war on journalism” stemming from his administration’s obsession with rooting out leakers. Recently we learned that the Justice Department had spied on the Associated Press and on Fox News reporter James Rosen, and had even gotten a judge to sign a search warrant identifying Rosen as a criminal co-conspirator. Now U.S. Rep. Peter King, R-N.Y., is calling for journalists to be prosecuted for publishing the NSA documents leaked by Snowden.

This is a moment of great peril for journalism. With 56 percent of Americans saying they don’t mind if the government monitors their phone records, public opinion is hardly on the side of whistleblowers and the news organizations that work with them.

Whether we approve of everything Edward Snowden did or not, The New York Times and others in our craft ought to show more solidarity. If he is in trouble, so are all of us.

Talking about the Phoenix tonight on WBZ

I’ll be talking about the late, great Boston Phoenix tonight from 9 to 10 p.m. on “NightSide with Dan Rea,” on WBZ Radio (AM 1030). Also in studio will be longtime Phoenix contributor Harvey Silverglate, and perhaps former editor Peter Kadzis by phone. I hope you can join us.

A pair of heartfelt tributes to the Boston Phoenix

I want to share with you two extraordinary reflections on the Boston Phoenix and what its loss means to the city and the region. There have been a lot of such reminiscences, and many of them have been terrific. But I look at these as putting a cap on it, unless I decide to expand on my own recent effort, which came off as more sterile than I would have liked.

Harvey Silverglate
Harvey Silverglate

The first, by Harvey Silverglate, appeared late last month in the final, online-only edition of the Phoenix. Harvey is a friend and an occasional collaborator. (We are currently brainstorming ways to keep the Phoenix Muzzle Awards alive, and we hope to have an announcement within a month or so.)

Harvey began writing his civil-liberties column for The Real Paper in the early 1970s. When Stephen Mindich, the Phoenix owner, absorbed The Real Paper into the Phoenix later in the decade, Harvey’s column was renamed “Freedom Watch,” the name it carried up until the end. I had the privilege of editing Harvey in the early 1990s. He writes in his final column:

It’s no surprise to me that assaults on freedom — the mainstay of my long-running column — have outlasted the newspaper I could always count on to publish even my harshest critiques of the criminal justice system. Unlike, it seems, the institutions that work hard to subjugate others, newspapers, which are essential to free the subjugated, are not immortal.

Make sure you read the whole thing — and check out the photos, taken by his wife, Elsa Dorfman, a wonderful portrait photographer.

Al Giordano
Al Giordano

The second piece, which I’ve been anticipating since the end of the Phoenix was announced, finally popped into view on Tuesday — a 4,000-word-plus reflection by Al Giordano, who covered politics (among other things) for the paper in the mid-1990s. I was the news editor for the early part of Al’s time at the Phoenix. We struggled over Al’s radical, activist inclinations and the more mainstream direction the Phoenix was then taking, and he describes those struggles accurately and fairly.

I always respected Al, and my admiration for him only grew after he left the paper, moved to Mexico and launched NarcoNews.com, which covers the so-called war on drugs from a Latin American perspective. When Al writes about the Phoenix crusading in his defense after he got sued by “narco-bankers,” he is referring in part to this article I wrote in 2001.

Al’s essay on the demise of the Phoenix is impassioned and, in parts, poetic. It was not meant to be excerpted, but I’ll take a shot at it anyway:

My success at manipulating daily newspapers had stripped from me any sense of myth or magic that dailies had so carefully cultivated among the reading public. I liked reporters but felt badly for them: Their mothers thought they were powerful, but they were really slaves to the daily deadline, which more often than not denied them the time to ponder or think about a story before having to put their name on it. Spared from the popular illusion that anyone could be Woodward and Bernstein if he could just get to a big-enough daily, I pointed my ambition elsewhere: The Phoenix job, for me, was the pinnacle, top of the heap. It was all I had aspired to be.

Al is a force of nature, and had a hugely positive influence on the newsroom and what readers saw every week. By the time he left, I had moved into the media columnist’s slot. I was sorry to see him go. But, as he writes, he “never stopped being part of the Phoenix family.”

Aaron Swartz, Carmen Ortiz and the meaning of justice

Aaron Swartz in January 2012. Photo (cc) by Daniel J. Sieradski. For details, click on image.
Aaron Swartz in January 2012

An earlier version of this commentary was published on Sunday at The Huffington Post.

The suicide of Internet activist Aaron Swartz has prompted a wave of revulsion directed at U.S. Attorney Carmen Ortiz, who was seeking to put him in prison for 35 years on charges that he illegally downloaded millions of academic articles.

Swartz, 26, who helped develop the RSS standard and was a co-founder of Reddit, was “driven to the edge by what a decent society would only call bullying,” wrote his friend and lawyer Lawrence Lessig. “I get wrong,” Lessig added. “But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”

By Monday morning, more than 11,000 people had signed an online petition asking President Obama to remove Ortiz. Swartz’s family released a statement that said in part: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

Ortiz’s vindictiveness toward Swartz may have seemed shocking given that even the victim of Swartz’s alleged offense — the academic publisher JSTOR — did not wish to press charges. But it was no surprise to those of us who have been observing Ortiz’s official conduct as the top federal prosecutor in Boston.

Last July I singled out Ortiz as the lead villain in the 2012 Muzzle Awards, an annual feature I’ve been writing for the Phoenix newspapers of Boston, Providence and Portland since 1998. The reason: her prosecution of Tarek Mehanna, a Boston-area pharmacist who had acted as a propagandist for Al Qaeda.

Mehanna was sentenced to prison for 17 years — not because of what he did, but because of what he said, wrote and translated. Though Mehanna had once unsuccessfully sought training at a jihadi terrorist camp in Yemen, the government’s case was based almost entirely on activities that were, or should have been, protected by the First Amendment.

Make no mistake: Mehanna’s propaganda was “brutal, disgusting and unambiguously supportive of Islamic insurgencies in Iraq, Afghanistan and Somalia,” Yale political scientist Andrew March wrote in The New York Times. But as March, the ACLU and others pointed out in defense of Mehanna, the more loathsome the speech, the more it deserves protection under the Constitution.

In addition to the prosecution of Tarek Mehanna and the persecution of Aaron Swartz, there is the matter of Sal DiMasi, a former speaker of the Massachusetts House who is now serving time in federal prison on political corruption charges brought by Ortiz.

Last June DiMasi revealed he had advanced tongue cancer — and he accused federal prison authorities of ignoring his pleas for medical care while he was shuttled back and forth to Boston so that he could be questioned about a patronage scandal Ortiz’s office was investigating. It would be a stretch to connect Ortiz directly with DiMasi’s health woes. She is, nevertheless, a key player in a system that could transform DiMasi’s prison sentence into a death sentence.

Notwithstanding the anger that has been unleashed at Ortiz following Aaron Swartz’s death, she should not be regarded as an anomaly. As the noted civil-liberties lawyer Harvey Silverglate pointed out in his 2009 book, “Three Felonies a Day: How the Feds Target the Innocent,” federal prosecutors have been given vague, broad powers that have led to outrages against justice across the country.

“Wrongful prosecution of innocent conduct that is twisted into a felony charge has wrecked many an innocent life and career,” wrote Silverglate, a friend and occasional collaborator. “Whole families have been devastated, as have myriad relationships and entire companies.”

Ortiz may now find that her willingness to use those vast powers against Swartz could have a harmful effect on her future.

As a Latina and as a tough law-and-order Democrat, she has been seen as a hot political property in Massachusetts. In 2011 The Boston Globe Magazine named her its “Bostonian of the Year.” She recently told the Boston Herald she was not interested in running for either the U.S. Senate or governor. But that doesn’t mean she couldn’t be persuaded. Now, though, she may be regarded as damaged goods.

Those who are mourning the death of Aaron Swartz should keep in mind that he had long struggled with depression. Blaming his suicide on Carmen Ortiz is unfair.

Nevertheless, the case she was pursuing against Swartz was wildly disproportionate, and illustrated much that is wrong with our system of justice. Nothing good can come from his death. But at the very least it should prompt consideration of why such brutality has become a routine part of the American system of justice.

Update: MIT, where Swartz allegedly downloaded the JSTOR articles, has announced an internal investigation, reports Evan Allen of The Boston Globe. Lauren Landry of BostInno has statements from MIT president Rafael Reif and from JSTOR.

Photo (cc) by Daniel J. Sieradski via Wikimedia Commons and published here under a Creative Commons license. Some rights reserved.

How news execs can avoid the online ad meltdown

Writing in Technology Review, the noted media critic Michael Wolff says Facebook is doomed — and is going to take the Web down with it. The reason: online advertising, ubiquitous and not particularly lucrative, is in a death spiral.

In my latest for the Nieman Journalism Lab, I take a look at Wolff’s analysis, and suggest some ways that news organizations can avoid the meltdown.

And thank you to Harvey Silverglate for pointing me to Wolff’s provocative essay.

First Amendment rights and wrongs

In an effort to respect the First Amendment‘s guarantee of freedom of religion, the Upton selectmen have given short shrift to another provision of the First Amendment: “the right of the people peaceably to assemble.”

According to Jessica Heslam of the Boston Herald, the selectmen recently voted to reject a request by local Catholics to hold a “rosary rally” on the town common, citing the separation of church and state.

But as noted civil-liberties lawyer and Friend of Media Nation Harvey Silverglate tells Heslam, there is no constitutional problem with allowing a prayer rally on public property as long as other groups are accorded the same right of access. Another civil-liberties lawyer, Chester Darling, goes further, saying, “Those selectmen belong in federal court.”

Prediction: The selectmen are going to change their minds.

Update, Oct. 28: Well, that was fast.

Four smart people, two debates

In today’s Boston Globe, civil-liberties lawyer Harvey Silverglate and Globe columnist Scot Lehigh take on the issue of former Massachusetts Senate president Bill Bulger’s conduct with regard to his brother Whitey Bulger, the notorious mobster who’s been charged in connection with the killings of 19 people.

Silverglate argues that Bill Bulger, also a former president of UMass, was under no obligation to help authorities capture his brother, and that the testimonial privilege granted to spouses should be extended to other family relationships as well. Lehigh counters, “Faced with a moral dilemma, William repeatedly made the wrong choice, putting loyalty to his felonious brother over responsibility to his neighborhood, his constituents, or the larger public community whose university he led.” (Note: Silverglate and I collaborate occasionally, and the latest example will be online later today.)

On an entirely different matter, Slate media columnist Jack Shafer assesses Patch, AOL’s network of hyperlocal sites, and finds them lacking. “Besides being wildly expensive to create, hyperlocal news doesn’t seem to appeal to a broad audience,” Shafer writes.

That prompts a response from Howard Owens, publisher of The Batavian, an independent hyperlocal site in western New York. (Owens posts two comments; read the second one first.) Here’s an excerpt:

As my friend and fellow indie publisher notes, it’s only expensive if you have a big corporate structure to support and shareholder demands to meet. There are a handful of successful local online ventures that produce a ton of highly engaging, sought after, popular, memorable local news that do it at a fraction of the cost of the corporate entities.

I posted a brief comment as well, contending that Shafer’s complaint seems to be more about his lack of interest in community news than about anything intrinsic to Patch.

Instant update: Paul Bass, editor and founder of the New Haven Independent, just weighed in. And if you scroll way down, you’ll see a brief comment from another Media Nation favorite, Debbie Galant, co-founder and co-editor of Baristanet in Montclair, N.J.

The trouble with federal plea bargains

My friend and occasional collaborator Harvey Silverglate has a terrific commentary in the Boston Globe on the plea deal reached by federal prosecutors with Joseph Lally in the corruption case against former Massachusetts House Speaker Sal DiMasi.

Lally, a former associate of DiMasi’s, received quite a goody bag in return for his plea: a two- to three-year prison sentence, compared to the nine he might have gotten if he’d gone to trial and been found guilty, as well as the right to keep his home and $30,000 in savings.

“But leniency comes at a price,” Silverglate observes. “Lally has agreed to provide testimony that will help prosecutors. The dog gets the bone only if it performs the trick.”

Here’s what I wrote in the Guardian about Silverglate’s book, “Three Felonies a Day,” which painstakingly documents numerous examples of overreach and abuse by federal prosecutors.

As the case against DiMasi continues to unfold, I’ll be watching for objective, documentary evidence regarding his guilt or innocence.

Photo (cc) by Amy and republished here under a Creative Commons license. Some rights reserved.