"You will be punished if you don't become an informant": ACLU's Nancy Murray on Tarek Mehanna case

Last week, a federal judge sentenced 29-year-old Boston-area pharmacist Tarek Mehanna, convicted earlier this year of various material support for terrorism charges, to 17.5 years in a supermax prison. Mehanna has been in lockdown for most of the past four years, held in solitary confinement for 23 hours a day in a cell “the size of a small closet,” as Mehanna described during his powerful statement to the judge at the hearing.

Mehanna’s case fits into the wider pattern of civil liberties violations related to the prosecution of Muslims in domestic terror cases. Like in other prosecutions, including that of three young American Muslim men in North Carolina that I have covered on my blog, the government’s case focused on Mehanna’s opposition to US foreign policy and Internet activity, as well as travel he made abroad — all activity thought to be protected by the First Amendment.

FBI coercion

Before prosecuting him, the government tried to coerce Mehanna into becoming an FBI informant and spying on his community, approaching him after a hospital shift and telling him that he could go the “easy” way and never see the inside of a prison cell, or Mehanna could choose the “hard” way. Mehanna chose the hard way, which his lawyer says he is being punished for. Indeed, defendants’ refusal to become informants is a troubling commonality in a number of terror prosecutions.

And during the trial the prosecution used the tried and true tactic of invoking the specter of the 11 September 2001 attacks, even though Mehanna has no connection to those events whatsoever. When the word “terror” is invoked, even in cases like Mehanna’s where no act of violence is alleged to have been perpetrated, government prosecutors are nearly universally able to secure guilty verdicts — so much so that defendants are more likely to take plea deals than have their day in court.

Opposition to US foreign policy

There are noteworthy exceptions to Mehanna’s case. One is that Mehanna cannot be described as “low-hanging fruit” — vulnerable members of the community who are easy targets for the FBI’s unscrupulous paid agents provocateur. In his sentencing statement last week, Mehanna resolutely asserted his principles. He described a lifelong framework of understanding the world in terms of the oppressor versus the oppressed, his opposition to the horrors perpetrated by US forces in Iraq and Afghanistan, and the right of Muslims to defend themselves from foreign invaders, whether they be “Soviets, Americans or Martians.” Mehanna concluded by telling the courtroom, “The government says that I was obsessed with violence, obsessed with ‘killing Americans.’ But, as a Muslim living in these times, I can think of a lie no more ironic.”

Mehanna’s case also stands apart from others because people beyond his community are actually aware of it and outraged, thanks to the important advocacy done around it by Mehanna’s brother, Tamer, and civil libertarian and human rights advocates in the Boston area — not least of which is the American Civil Liberties Union of Massachusetts. The day of Mehanna’s sentencing hearing, the ACLU-Mass’ education director, Nancy Murray, published a guest blog on The Boston Globe outlining the injustices of Mehanna’s case titled “It’s official. There’s a Muslim exception to the First Amendment.”

“Muslim exception” to First Amendment

In her article, and in the below interview I did with her over the phone yesterday, Murray contrasts Mehanna’s case with that of Sami al-Hussayen, a Saudi graduate student in Idaho who was in 2004 acquitted by a jury of similar terror charges related to his Internet activity. Murray attributes the different outcomes in verdicts in part to “the widespread acceptance of the notion of a ‘domestic radicalization process’ promoted through Internet activity,” first put forward by the New York Police Department and now the foundation of anti-terror policy at many levels of government.

In the below interview, edited for length, Nancy Murray explains why she believes a “Muslim exception” is being carved out of the First Amendment, how a juror came to Mehanna’s sentencing hearing to ask the judge for mercy, and why Tarek Mehanna’s case has wide-reaching implications.

Maureen Clare Murphy: How is Tarek Mehanna’s case a free speech case, and how does it fit into a wider pattern of Muslims’ rights being undermined for the sake of so-called national security?

Nancy Murray: I think this case really highlighted for us here in Boston the way the government has set around criminalizing expression which it doesn’t like.

When you look at the Tarek Mehanna case, they started zeroing in on him when he was a teenager, when he was, like many young people, very overt in his opinions. He was really upset about what was happening, the threats to go to war in Iraq, everything that was going on in Afghanistan. So when he was 19, 20 they started throwing everything they could at him in terms of surveillance, including a sneak-and-peek search of his parents’ home, intercepting emails, wiretapping his phones and so on. He apparently had a lot of people who really respected him because he was a very serious young man, he seemed very fearless, he would stand up and say what was wrong.

What [government prosecutors] had against him is that he went on a trip to Yemen in 2004. According to the government, they were trying to find a training camp, which they didn’t succeed [in finding], he and a friend. The defense has said that he went there looking for religious study opportunities, and I can’t judge which of those is true. But on his return, he never, ever got involved in any plot. What he did was he translated documents, he downloaded some, he shared them with friends, and he engaged in chats. There’s never been any evidence presented that he did any of this in coordination with al-Qaida or any other terrorist group.

But what the government is saying is that he constituted himself as the media wing of al-Qaida. That is a big leap, because they have no evidence. The government never showed that what we call his expressive activity, [Mehanna’s] rights under the First Amendment, were ever in any way coordinated with a terrorist group. [Author’s note: The controversial 2010 Supreme Court decision Holder v. Humanitarian Law Project drastically expanded the government’s definition of what constitutes material support of terrorism, including political advocacy if done in a “coordinated way” with a group on the State Department’s designated foreign terrorist organization list.] But they skirted around this in the trial. And what they did during the trial was just use visuals of 9/11, to mention al-Qaida about every other sentence, and to really give the impression to the jury that he was acting in coordination with al-Qaida when they didn’t actually present any evidence saying that he was. So it was inflammatory, and the jury found him guilty of conspiracy to give material support.

The defense did a very good job trying to bring up the First Amendment, but they were continually rebuffed by the judge. The judge not only didn’t allow an ACLU brief to be entered in — in the very beginning we had written a brief saying that many of these charges should be dropped because they were protected by the First Amendment. But the judge refused to have that brief admitted at the beginning. He said it would be more appropriate for a later court preceding. He then continually refused to allow First Amendment to enter into the defense, and he made no mention of it in his instructions to the jury. At the [sentencing hearing], one of the jurors was present. Before the judge sentenced Mehanna, the defense attorneys had tried to get the judge to listen to what this juror had to say. The judge said no, that she could submit something in writing afterwards, but he wasn’t going to allow her to speak in that hearing.

People [who had attended the trial] were flabbergasted when the jurors came out and voted him guilty. But I think they did so just because the instructions didn’t bring up that this is protected expression, and the whole inflammatory nature of having 9/11 constantly invoked. And I must say, it was really grim hearing the prosecution at the sentencing hearing talk about Mehanna, because they didn’t just say that he went and looked for a camp and tried to train. What they were saying was that this was incredibly dangerous what he had done, its impact will linger, it had done extreme harm, because now this is all over the Internet, what he translated and so on.

Basically, [government prosecutor Aloke Chakravarty said] that he deliberately set out to radicalize others and that there’s a lasting impact which will harm the community for years to come. Clearly, they were trying to make this a very big deal, that [Mehanna was] a mastermind who was out there using the Internet to create this huge legion of radicalized Muslims around the world who will seek to create violence against the United States. And the fact of the matter is, Tarek Mehanna went on to get his PhD in pharmacy — he knew he was under surveillance, the FBI apparently asked him twice to be an informant. The final time they asked him they said, we’ll do this the easy way or the hard way. You either go along with us, that’s the easy way, and the hard way, we’ll see what happens.

And he chose the hard way, whereas his former friends agreed to testify against him, although some of them testified on the stand that basically he hadn’t done what the government had said he had done. It’s a case of the jury really being played on, in my view, by the prosecution, to basically say that this is really one of the worst things you can do, recruiting others to the cause, and it’s all done through the Internet without any demonstrated proof that doing these translations has made all these radical converts. And for that, the prosecution asked for 25 years.

There had been a big effort on the part of the defense to try and present another image of Tarek to both the US attorney and the judge by having the community and others write letters, talking about what he was like. That must have had some impact with the judge, who decided to go with a 17.5-year sentence instead of a 25-year one.

MCM: He’s being sentenced to 17.5 years in a supermax prison. Can you describe the kind of conditions he will be held in, and the kind of conditions he has been held in, as I understand he has been in lockdown for four years now.

NM: The conditions he faces are conditions which are meant to destroy people. The supermax conditions are not just that you’re in solitary for 23 hours a day, but that you are under strict SAM — special administrative measures — which restrict how much contact you can have with anyone. I believe his parents won’t even be allowed to have direct contact visits with him, it’ll probably be through glass. Very infrequent visits, very infrequent telephone calls, very controlled the amount of pages of letters you are allowed to write, all of this. It’s really designed to break people. The fact that he managed [to endure] the solitary confinement in Plymouth County jail is pretty amazing. The kind of solitary [confinement] of these supermaxes is clearly inhuman, inhumane, no matter what the European Court says. I mention that because the European Court basically said British Muslims can be extradited by the United States because the treatment they get here will not be cruel and unusual punishment, even if they end up in solitary confinement supermaxes, which we think is really wrong, because it’s a form of psychological torture designed to break people down.

And let me just give you a flavor of what the defense had to say during the sentencing hearing. [Defense attorney] Jay Carney doesn’t make political speeches, that’s not what he does, but here’s what he had to say about Tarek. He said, it’s clear from what [US attorney] Mr. Chakravarty has written and said that the government wants the defendant to be punished for statements made which are protected by the First Amendment and for his refusal to become an informant. And he goes on and on, talking about how not only were all of these statements protected, but the message the government sent through the Tarek case is that you will be punished if you don’t become an informant. Then he goes on to say that the government is breathtaking in its hypocrisy in how it treated [Kareem] Abuzahra, who is the chief guy who became an informant and testified against Tarek, because it was Abuzahra who was really saying we have to bomb a mall, and it was Tarek saying, well no, this is not what we’re gonna do. We’re here in America, this is our country, we cannot go to war here in the United States.

What Tarek did say in his amazingly cogent talk that he delivered at his hearing — which was not read, he didn’t have a single piece of paper that I could see — he talked about the need of Muslims to be able to defend [themselves] from foreign invaders, and that was his focus. His focus was Iraq, his focus was Afghanistan, his focus was being extremely critical of American foreign policy, not “let’s go kill Americans in the United States.”

This is what I thought was so interesting, [defense attorney Carney is] speaking to judge George O’Toole, and tells him he remembers that when he was a high school student, how much he hated the occupying British army, what it was doing to northern Ireland, and he thought of joining the IRA when he was in college. And he said that deliberately to the judge, just to get him to try to understand the parallels here. Then he went on and talked about how Tarek’s views moderated over the decade, and he objected to almost all the views of al-Qaida, with the exception that Muslims have got to be able to defend themselves in their own land.

For at least eight years, probably longer, the FBI had [Mehanna] under scrutiny. And if he was so dangerous, as Carney said, why did it wait so long to arrest him? They arrested him once in 2008 for making a false statement, then they allowed him to be released on bail. So [Carney] said if he was so dangerous, why did they allow him to be released on bail? But it was after that they tried again to make him an informant.

It’s just really demoralizing to think that so many years after 9/11, it is getting easier for the government to bring these prosecutions, rather than harder, because people have just been so indoctrinated. You don’t really have to produce evidence to get a conviction, you just have to play with inflammatory imagery and make assertions that this man is dangerous. I won’t say all juries, but this particular jury was swayed by it.

And if you contrast that with the jury in Idaho, and I mention this in the piece I wrote, the Sami al-Hussayen case, the Saudi graduate student at the University of Idaho — in that it was the biggest news because the governor and [former Attorney General] John Ashcroft stated they had just uncovered this terror cell and the way they did that was by having a giant military plane come with a swat team of over 150 people who took over the campus at five in the morning and raided the rooms where foreign students lived, and captured this young Saudi student who was living with his wife and young children.

And so they get a jury to try the case, and it was a case again about using the Internet. He had been a webmaster, Sami al-Hussayen, for what the government considered to be radical groups. And in this case, the jury said that this was protected First Amendment activity. And the government relied only on a single witness, a former CIA agent who said this is not how you make dangerous radicals, by just doing web posting.

So if you contrast what happened in Tarek’s case with that, and if you contrast it with what happened in the Hutaree case in Michigan — I kept thinking, what if Tarek and his friends had actually stockpiled weapons and had been talking about particular details about killing a police officer and bombing his funeral, which is what these Hutaree militia people had did. [In that case] the judge said this is protected by the First Amendment, and they were just venting, and the plot was not sufficiently ripened to say that this was a real plot. I mean, can you imagine that happening [in Mehanna’s case]? That’s why in my view, it really is that the First Amendment is having a Muslim exception carved out of it, not so much for all people who are wanting to vent against the government.

MCM: Lastly, what do you think is the bottom line that people should take away from Tarek Mehanna’s case, and why do people need to pay closer attention to these cases?

NM: We really are now on a slippery slope. If we care about the First Amendment, if we care about being able to criticize foreign policy, to criticize what our government is doing, this case is really relevant. Just like with the Supreme Court decision in Holder v. Humanitarian Law Project, this case shows that the First Amendment is now just a convenience. When the government says it can exist, it can exist, when they say no, forget it, then they can move in and use other language.

It’s so much the kind of guilt by association that we saw during the McCarthy period in the first red scare and the second red scare. Well, that is really back. The really low points in our history include red scares, just like they include Japanese American internment and slavery and so on. We are now in danger of that kind of scapegoating, having the fear of the so-called enemy within again, using thought crime, guilt by association, in ways which we will later really come to regret.

And not only that, but once one group is seen as the dangerous enemy within, it’s so easy to then say, what about other groups that might be critical of US policy, [to say] that they must be linked in with this conspiracy. Everything is so vague, you could just pump it up to be whatever the government says it is, and that is extremely dangerous.

It’s a pattern that I hope we can really denounce, that we can courageously stand up against, because I think a lot of people will be chilled, they won’t want to criticize what the government is doing, because they do see it could end up putting you in hot water. I think that if we intend to have a democracy, the First Amendment has to be part of it. Otherwise, forget it, we will have a pure and simple police state. It’s up to all of us to care about this and the implications not just for Muslims, not just for Tarek and his family, but for our constitutional rights generally and the kind of democracy we say we are.