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Joshua FoustBack to OpinionJoshua Foust

On thought crimes and terror trials

On April 12, 2012, Tarek Mehanna, a Boston-based U.S. citizen, was sentenced to 17 years in prison for “conspiracy to provide material support to Al Qaeda, providing material support to terrorists (and conspiracy to do so), conspiracy to commit murder in a foreign country, conspiracy to make false statements to the FBI, and two counts of making false statements.” It has become something of a landmark case, in part, because on the surface it appears to be a conviction for what amounts to a thought crime.

Ahmed Mehanna, father of Tarek Mehanna, is mobbed by reporters as he leaves the U.S. District Court in Boston following the sentencing of his son on Thursday, April 12, 2012. Photo: AP Photo/Steven Senne

There are two separate issues at play in the Mehanna case: Mehanna lied to the Feds. He also engaged in online speech that supported some terrorist groups, which has made understanding his case difficult. His prison sentence is certainly longer than the eight years mandated for making false statements to the FBI in terrorism cases, and the jury at his trial seemed to think that Mehanna had violated more than one law.

But does this make any sort of reasonable sense? No one would argue that lying to a federal law enforcement officer is not a crime. The law governing false statements, 18 USC § 1001, is not a controversial one. But the circumstances under which Mehanna lied should matter in this case. When he was arrested in 2009, Mehanna was accused of traveling to Yemen in 2004 to search for a jihad training camp, and for translating several online jihadist documents and videos into English for further distribution. He was convicted after a two-month trial of providing “material support” to terrorists.

The material support law Mehanna was convicted under is broadly defined as:

[A]ny property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

Under such a definition, it’s a crime to provide “any service” to a terrorist group – so if Mehanna was indeed translating those documents with the intent of supporting a designated Foreign Terrorist Organization, then he very well might have tripped over the law. The challenge, as David Cole recently noted, is that the government did not provide any evidence that Mehanna actually communicated with any terrorists. They argued that his public expression of support, and the provision of translation, was itself material support regardless of whether he knowingly supported a specific group or not.

So when we look back at why Mehanna may have lied to a federal agent, the case doesn’t seem as less black-and-white. It’s the government’s decision to prosecute him for lying to an FBI agent (and there would be little controversy had they done just that). But by including charges for engaging in protected speech on the Internet, the government opens itself up to charges that they are prosecuting thought crimes.

This is the fundamental challenge of effective counterterrorism. The government wants to prevent terrorism from taking place, and to do so it has to detect and unravel conspiracies to commit violence before they take place. But how can you do that while respecting fundamental rights?

It’s easy to describe the current terror trials as routine “police work” or “intelligence.” However, the Mehanna case shows that the law can be manipulated to convict people even when they have neither committed violence nor directly communicated with terrorists. It takes preventive counterterrorism to an extreme that we should find unacceptable.

The material support laws were passed with the intention of creating a legal framework that would allow the government to identify and undermine terrorists before they could strike. That framework, however, has also resulted in some bizarre legal cases like Jamshid Muhtorov’s arrest in January of 2012 for communicating with a website owner associated with the Islamic Jihad Union, a terror group based in northwest Pakistan dedicated to overthrowing the abusive Karimov regime in Uzbekistan.

Like Mehanna, Muhtorov was accused of providing material support to a designated Foreign Terrorist Organization, and arrested on his way to Istanbul. Another man, Bakhtiyor Jumaev, was later arrested in New Jersey for sending Muhtorov a check for $300, which the government alleges was a financial contribution to a terrorist organization.

Far from the palpable danger of plots one sees on TV shows like “24,” these three men are not accused of actively engaging in or plotting violence. Instead, they are accused of “supporting” terrorism, with support being defined so broadly that practically any activity can be called “material support.”

The government should have the ability to stop terrorist plots in their tracks, and it should reserve the right to go after the terrorist networks that facilitate these plots. On the other hand, there also needs to be limits. Imprisoning people for engaging in pro-jihad speech on the Internet is a disportioncate response to Islamist terrorism.

Yet, disportioncate responses seem be to part of the modern fight against terrorism. Far from being an issue of law enforcement, terror trials seem to be moving in a worrying direction where thinking about jihad is as illegal as carrying out an act of jihad, thereby expanding acts of terrorism to include thought crimes. And unless this system is constrained, it will ensnare a lot of innocent people along the way. Not to mention, violate first amendment rights.

In cases of domestic terrorism, federal judges have vehemently defended the rights of U.S. citizens to openly express their hatred for authority. When dismissing the last Hutaree militia case, Judge Victoria Roberts noted that speech and beliefs are not enough to convict people in a trial – even if those beliefs include a desire to attack the U.S. government. But if a U.S. citizen expresses ideas that also happened to be expressed by jihadi terrorists, he is thrown into prison for 17 years like Tarek Mehanna.

The clear double standard in these two cases is intolerable, but hardly unique. High-profile senior U.S. officials have openly lobbied the government on behalf of the Mujahedeen-e-Khalq (MEK), an officially designated Foreign Terrorist Organization. These officials have received large fees and substantial support for their advocacy. Yet, while Mehanna’s internet activity and Muhtorov’s travel plans earned them arrest and trials, MEK’s supporters are only the subject of a passive “inquiry” by the Treasury Department (and not the FBI).

We can try to parse out the meaningful differences between, say, Al Qaeda and the MEK:  one is explicitly religious in its outlook, the other focused on the much more secular goal of bringing about regime change in Iran, but the law doesn’t make that distinction. It is just applied unequally, and happens to target civilians while making allowances for the powerful and connected.

It is a system urgently in need of reform. Thought crimes and double standards should not define our fight against jihadist terrorism – sound principles and the rule of law should.

 Joshua Foust is a fellow at the American Security Project, where he focuses on asymmetric operations and national security strategy, as well as a columnist for The Atlantic. This is excerpted from an essay collection he is editing about the war on terror, to be released on April 30.