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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.



  • Catherine Ann Fitzpatrick

    Foust’s article represents a troubling minimizing of the threat of terrorism and questioning of law-enforcement that we’ve seen throughout his analysis of the Muhtorov case. See, for example this discussion:

    It’s important when Foust and others such as Glenn Greenberg are crying “thought crime!” to read the full indictment:

    Foust doesn’t seem to concede that this case involves a *conspiracy*, that is, participation in a criminal group or network. His defense hinges on the idea that Mehanna never contacted any terrorist. But he indeed associated with others who tried, even if they failed, to get training with Al Qaeda. He associated with others who in fact had training in a terrorist group; in fact one of them was the person he lied about to a grand jury — *that* was the lie. He lied about the purpose and intended destination of a trip to Yemen, and lied as to whether he had received any assistance on this trip — he said no, although he had. Foust concedes that lying to a grand jury is a problem, but it’s important to point out what the lie was about: associating with a man trained in a terrorist camp, and lying about the true purpose of his visit to Yemen, to get terrorist training.

    Is this guilt by association, the bugabear of forums’ geeks and literalists all over the Internet? Well, if you don’t want to be accused of the actions of a group, don’t actively, willfully, knowingly, deliberately associate with a group and attempt — even if you fail — to meet the main criminals in it and gain training in a terrorist camp.

    There’s also the question of material support, which Foust has rejected before as “overbroad” — he never seems to concede that supporting a terrorist group is unlawful, or — just when it seems like law-enforcement might in fact narrowly demonstrate to him — he jumps to say that it wasn’t really support anyway.

    Translating for Al Qaeda and helping their propaganda networks of jihad films and hatred of the US, gleefully showing beheadings and glorifying the 9/11 terrorist attack and such, this is indeed helping a terrorist group. Just because Mehanna didn’t physically come into contact with Al Qaeda but only translated and published and communicated on the Internet doesn’t meet it isn’t *material* help. Is the Internet always and everywhere to sanitize every act for Foust, so that any extremism is always to be excused as “Interneting while Muslim” as he and other sympathetic bloggers have described it?

    Perhaps there might be a case made for Mehanna *in isolation* as merely a devout if extreme Muslim believer with extreme but not criminal views if all he did was view jihad videos or look at jihad websites or discuss them with others of like mind.

    But he was in a group and network with others who in fact were attempting to gain training *as terrorists* and intending to commit terrorist acts.

    How long are you suppose to wait before expression (not just thought) and intention of criminal action (not just discussion) are to be enacted? If you couldn’t see Mehanna’s intent, and you couldn’t see the intent of all the others in the conspiracy, perhaps you could make a case of “reasonable doubt.” But you can see them; it’s the Internet.

    The arguments that Foust, Greenberg and Mehanna’s defense make are understandable, given their world views and professions, but they don’t seem to go as far as saying the judge and prosecutors are politicized or actually have violated the law. But the prosecutor made his case and the judge accepted it  — they did make the narrow distinction between protected speech and unprotected speech. Foust and company just didn’t like how it went. The judicial system doesn’t treat these cases as isolated within some precious autonomous realm known as “the Internet”. They view the intentions on display and the associations with known terrorists and from all evidence, they make a legitimate call that there was knowing and deliberate material assistance to a terrorist group, Al Qaeda. Translation of videos and web site text are crucial to Al Qaeda in their recruitment and propaganda activities.

    Foust’s rendering of the Muhtorov case here is tendentious as well, as he fails to describe — again — what’s actually in the indictment, which is not just reading about jihad or not just discussing it on the Internet, but contact with a foreign terrorist organization and preparation of equipment and cash to make a trip to Turkey and meet up with a representative of the Islamic Jihad Union. The interpretation here isn’t “overly broad,” because it has to do with phoning an actual group member, speaking in code about “weddings” which is said to be the Al Qaeda-style code, telling his young daughter that he would “see her in heaven” and so on. The arrest of Muhtorov was lawful, based on what the prosecution has shown so far.

    Foust concedes that 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.” But he says there should be “limits” so that people who merely talk smack about the US on pro-jihad sites aren’t nabbed, and that there isn’t a “disproportionate response” to Islamist terrorism. But these people didn’t just talk, they associate knowingly and intentionally with *those who do act*. They didn’t just talk, *they planned with those who act*. They didn’t just read or express opinions, they gathered material support and equipment and planned to hook up with those who commit terrorism. So the US has from all indications acted properly.

    Everyone wants fundamental civil rights to be protected in counterterrorism. Yet as Art. 30 of the the Universal Declaration of Human Rights indicates, “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” In other words, you have to have some care about the very framework of rights themselves, and not invoke rights merely to usher in extremists who undo all of them for everybody.

    In other words, you cannot use one right (Art. 19, freedom of expression) to undo another right (Art. 3, the right to life, liberty and security of person). While the First Amendment goes behind the UDHR’s Art. 19 and Art. 29 regarding “morality, public order and the general welfare in a democratic society,” the First Amendment isn’t an endless license to plan and execute terrorism. There are Supreme Court decisions that define the limit of speech when it constitutes “incitement of imminent violence”. And now we are seeing jurisprudence that establishes that deliberate collusion with terrorist groups to aid and abet them in their violent acts is a similar lawful limitation. Challenge this if you will, but don’t pretend it’s about “thought crime”; it’s about abetting actors and their actions.

    I suspect we will see a lot more attention paid to this hitherto obscure
    article in the coming years, as indeed it contains the remedy for how
    you uphold human rights but prevent those who would undo them for all of
    us from succeeding in their deadly intentions.

    Foust and others keep wanting to amplify what they see as a vulnerability in the nexus between thought and action that should be left unimpeded to ensure there is no “thought crime”. But they have only done this by treating Mehanna in isolation from his comrades and their actions, and failing to admit the nature of the conspiracy here.

  • Anonymous

    Thank you Mr. Foust and PBS for this excellent piece on the double standards regarding the first amendment, so-called thought crimes, etc. and especially comparing with the likes of Hautree case proves the point more clearly!