The courtroom was packed and the spillover room was filled, with over fifty supporters observing Dr. Tarek Mehannaâ€™s appeal hearing in Federal court in Boston on July 30, 2013, where Attorney Sabin Willett asked a panel of three judges to throw out Mehannaâ€™s conviction that resulted in a sentence of 17 1/2 years. Mehanna, who is imprisoned at CMU Terre Haute, was not present at the hearing.
Mehanna, who pled not guilty, was found guilty by the jury in 2011 of conspiracy to provide material support for al Qaeda by translating Arabic documents online, and planning to join a terror training camp in Yemen. Mehanna insists he went to Yemen to study Arabic. There is no evidence that he ever picked up a gun or planned anything illegal. The prosecution relied solely on statements by informant Kareem Abuzahra, who was granted immunity by the FBI in exchange for wiretapping and testifying against Mehanna at trial. The governmentâ€™s case was framed by scouring Mehannaâ€™s computer for evidence that Mehanna had an â€œobsessive interestâ€ in jihad.
He had indeed voiced strong political opinions and made some crude jokes via IM chats with his friends online, but Attorney Willett told the Boston Globe, â€œOur view is that if the government cannot tie the knot between Mehanna and Al Qaeda, this is simply speech, just protected opinion… All he has done is talk a lot, and talk loudly.â€
Willet argued in Tuesdayâ€™s hearing that government prosecutors prejudiced the jury by showing them a huge number of irrelevant videos such as the World Trade Center explosions, beheading videos, Osama bin Laden, and other widely available images that had nothing to do with Mehannaâ€™s case but which poisoned the trial outcome.
Assistant US attorney Elizabeth Dorsey Collery, who works for prosecutor Carmen Ortiz, claimed that Mehanna had received an email from someone named Murabed, who informed him that al Qaeda was looking for translations, and yet he continued to translate Arabic texts for the Tivian website.
Willett argued that Mehanna was translating these texts, which were primarily religious texts, out of personal interest. He never even opened that email from Murabed.
The US had used Evan Kohlmann as a trial witness to frame the case as part of a global Islamic conspiracy. â€œKohlmann doesnâ€™t use science,â€ argued Attorney Willett.
Attorney Collery argued, â€œThese were ideological crimes. Mehanna believed that he had a moral obligation to assist al Qaeda and to engage violently against the US in Iraq.â€
Judge Selya seemed to scold the prosecutor, saying, â€œThe government grossly overdid it. Stick to the facts.â€ He acknowledged that overwhelming the jury with evidence, relevant or not, can have a cumulative effect, causing prejudice â€œto show intent.â€
Collery continued to insist that Mehanna was not as he claimed, â€œa scholarly man in search of enlightenmentâ€ but that he worked as a â€œpropagandist for al Qaeda… he was radicalized and radicalized others.â€
Mehanna was convicted only on the Yemen travel related indictments. The propaganda charges were dropped. However, the conviction was based on spillover arguments from the irrelevant evidence. The prosecution relied heavily on mention of IM chats, open to interpretation. The defense pointed out that many of these statements, such as the comment about being â€œal Qaedaâ€™s media wingâ€ were followed with LOL, Lots of Laughs. These chats were never quoted verbatim but paraphrased by the prosecutors.
Judge Thompson asked, â€œWas the inflammatory evidence necessary (for conviction)?â€
The prosecution then engaged in a long discussion about legal technicalities regarding permissible evidence.
The snickering of some of the journalists at the end of the hearing revealed prejudice.
Mehanna supporters gathered in fellowship after the hearing, including a technician for a Walgreens pharmacy, who often conversed with Tarek at the Worcester Islamic Center since Mehanna was a pharmacist at CVS. â€œWe used to compare notes about all the nice little old ladies,â€ he said. â€œSome even brought us baked goods!â€
Kate Bonner-Jackson, an organizer of the Tarek Mehanna support committee said, â€œTarek was vocal about the right to self defense of US invaded people.â€ She noted the American double standard when discussing self defense when it comes to Muslims, mentioning the recent Zimmerman acquittal.
â€œWe are looking for justice,â€ Ahmed Mehanna, Tarekâ€™s father told the Muslim Observer. Smiling, Tarekâ€™s father said, â€œThe judge vented my anger. He vindicated me!â€ He was referring to Selyaâ€™s comments during the hearing, where the judge seemed to empathize as a father:
â€œWhat could they find if they looked through three years of my three young sonsâ€™ electronic records? What disgusting pictures did they look at? What gross movies did they watch? What kinds of things did they joke about with their friends? What topics did they flirt with?â€
We agreed that the defense lawyer had a strong, calm tone of voice while the prosecutorâ€™s voice was noticeably shaky.
â€œBecause she has no case!â€ Ahmed Mehanna exclaimed. â€œShe was just dancing in circles around the issues.â€
Mauri Saalakhan of Peace and Justice Foundation said he was not overly optimistic as â€œ98% of first appeals are denied. But there will be more appeals.â€
Tarek Ismail of Columbia Law Schoolâ€™s Human Rights Institute is working on a study of 35 government prosecutions of Muslims. Ismail said Mehannaâ€™s appellate brief is over 100 pages long and raises many issues. During the hearing, each side had only 20 minutes to talk, so they focused on the prejudicial evidence that was rampant during the trial. Photos that were cached or downloaded on Mehannaâ€™s computer were used as evidence, whether or not he ever opened them.
â€œThey argued over whether evidence was prejudicial or probative (proving the case). An overwhelming amount of evidence that is not entirely related was presented instead of clear evidence of crime. The government was able to stronghold the jury because of so much evidence used as emotional manipulation. The cached computer files were used to construct a story.â€
Activist Laila Murad added, â€œSo much is speech protected under the 1st Amendment: opinions, translations of public documents.â€
Younger brother Tamer Mehanna told the Muslim Observer, â€œAttorney Liz went to some liberty in interpreting â€œbetween the linesâ€ of the actual statements made in the conversation. The way the government set it up is as follows: typically, the burden of proof is on the government to establish that he went there for violent reasons. The government found a workaround to that tall task by finding Tarekâ€™s friends and threatening them into becoming cooperating witnesses for the government, and recruited the services of Evan Kohlmann to tie it all together into a tidy narrative. Once it accomplished this, it had those cooperating witnesses agree that there was a conspiracy to go to Yemen for violent training, had Kohlmann â€œvalidateâ€ the theory behind the conspiracy, and that Tarek was a part of it. Because this established Tarek as part of this conspiracy, the burden of proof now gets laid on the defense to prove that Tarek was not part of this conspiracy.
â€œThis is part of the governmentâ€™s tactic– it creates a frame within a frame within a frame so that your task of defending yourself becomes that much more complex, until you agree to cut a deal just to end it. Needless to say, weâ€™ll never look for that exit in this case.â€