Four years ago, the Supreme Court cautioned federal prosecutors that they could run afoul of the First Amendment if they pursued terrorism-support charges against an individual who had engaged in speech that was independent of a terrorist group, even if that speech activity benefitted such a group.

On Monday, lawyers for a U.S. citizen asked the Court to confront that very issue in a case that has achieved wide notoriety and stirred civil liberties protests.  It is the case of Tarek Mehanna, of Sudbury, Mass., who was sentenced to seventeen years and six months in prison after being convicted by a Boston jury of several charges of providing “material support” to the Al Qaeda terrorist network.

Mehanna’s conviction, his lawyers told the Court, was based directly on his translation from the Arabic of documents related to jihad, or “holy war,” for which he held sympathetic views.  But they argue that he did so entirely on his own and with no coordination with or direction from Al Qaeda.

His aid-to-terrorism convictions, the petition contended, “rested entirely upon Mehanna’s translation and dissemination of texts that he selected as expressive of his political or religious views.  This core First Amendment activity was not commissioned, directed, paid for by, performed in concert with, or presented to a foreign terrorist organization.”

At issue in the case is the broader meaning of a June 2010 decision by the Court, in Holder v. Humanitarian Law Project.  By a six-to-three vote, the Court upheld the use of the criminal law against providing “material support” to a terrorist organization, but only when such support was coordinated with such an organization.  The “material support” law is the charge most often leveled in federal terrorism cases.

The Court stressed that it was not ruling on the constitutionality of using that law against someone who “independently advocat[es] for a cause” or otherwise engages in speech activity that might benefit terrorism.   The Court, however, did not spell out just what kind of activity would amount to “coordination” with a terrorist group.

Mehanna’s case, his attorneys told the Court, presents exactly that situation.  “The government’s case rested on Mehanna’s expressions of moral support for a foreign terrorist organization, and his interactions, on the Internet, with persons with whom he shared views.”  The petition asserted that the jury was allowed, under flawed instructions from the judge, to decide for itself whether Mehanna had coordinated his activities with Al Qaeda.

Besides targeting his pursuit of his jihadist views, the prosecution focused on a trip he had made to Yemen in 2004, allegedly seeking out Al Qaeda training camps so that he could volunteer to fight against U.S. military forces in Iraq.   But the jury was allowed to issue a general verdict, which could have been based either on the speech activity or the travel to Yemen.

His lawyers have conceded that his religious and political views were, in some ways, sympathetic to Al Qaeda philosophy about war against the west, but they also have contended that his religious views would not allow him to engage in military action against his fellow American citizens.

Mehanna’s petition noted that the Court’s ruling in the Humanitarian Law Project case had allowed prosecution for providing service to a terrorist organization for expressive activity, teaching, in that case, but only if it were done in face-to-face instruction with members of such an organization.  The three dissenters in that case, the petition added, had expressed concern that the use of the coordination standard would allow prosecutors to bring charges that would “chill” activity protected by the First Amendment.

Lower courts, Mehanna’s counsel asserted, have not taken up the question of what “coordination” means in prosecutions under the “material support” law and, as a result, what is allowed or what is criminalized “cannot be understood by citizens in speaking, the government in prosecuting, judges in instructing jurors, or juries in fact-finding.”

In Mehanna’s case, the petition contended, the judge did not sufficiently limit the scope of coordination, so “the government, from first to last, was able to invite the jury to locate ‘coordination’ in moral support.”  The filing cited repeated statements by prosecutors referring to Mehanna’s use of the Internet in ways sympathetic to terrorism, such as encouraging “people to engage in jihad” — which, by itself, was a service to Al Qaeda — and his use of his translation skills on jihadist materials helped “spread the message.”

Prosecutors also told the jury, over the objection of Mehanna’s lawyers, about videos and other terrorism-related materials that he had viewed or read, the petition noted.

“The material support statute,” the petition said, “must be construed in light of the First Amendment.”

The Justice Department will have a chance to respond to the challenge before the Court decides whether to review Mehanna’s conviction.


Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Challenging use of advocacy as terrorism, SCOTUSblog (Mar. 18, 2014, 8:52 AM),