Tarek Mehanna Appeal Hearing

By Karin Friedemann, TMO

Tarek Mahenna in court, artist’s rendering.

Observers at Tarek Mehanna’s appeal hearing heard from a panel of three judges on November 13, 2013. They filled the courthouse and two overflow rooms.

Judge Bruce Selya began the session with a disturbing comment reminiscent of Nazi German descriptions of its Jewish population as a disease: “Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.”

Mehanna, a Massachusetts College of Pharmacy graduate and former teacher at Alhuda Academy in Worcester, was convicted in 2012 of conspiring to kill American soldiers and supporting Al Qaeda. Mehanna’s lawyers insist that he gave no tangible support to al-Qaida, and his online activities were protected free speech. This case has drawn widespread interest because of its implications on protected vs. unprotected speech in its connection to terrorism related charges.

In arguments before the 1st U.S. Circuit Court of Appeals, Mehanna’s lawyer, Sabin Willett, said prosecutors repeatedly showed images of the World Trade Center in flames, videos of beheadings, and repeatedly made references to Osama bin Laden in an attempt to prejudice the jury against Mehanna.

‘’The purpose of this evidence was to frighten the jury,’’ Willett said, ‘’and it worked.’’

Judges Howard, Selya and Thompson upheld Mehanna’s conviction and sentence of 17 1/2 years.

Prosecutors said during Mehanna’s trial that he traveled to Yemen in 2004 to for terrorist training with plans to attack American soldiers in Iraq, but that the plan failed.

Mehanna’s lawyers argued that he traveled to Yemen to pursue religious studies.

Prosecutors relied heavily on the well-known fraud “expert witness” Evan Kohlmann.

What is not being discussed is that in the past, especially while the US was fighting the Soviets in Afghanistan, CIA-run “terror camps” were popular tourist attractions, similar to how nowadays Israel attracts Jewish tourists with the promise of rifle training. Mehanna reportedly expressed disappointment that such training camps no longer exist in Yemen.

Benjamin Wittes comments on Lawfare Blog. “The court of appeals held that the general guilty verdict could be sustained, even assuming for the sake of argument that the evidence of coordination with al Qaeda on Mehanna’s Internet activities had been inadequate to support that verdict–that is to say, even if Mehanna’s translation and advocacy were constitutionally protected… By eliminating Mehanna’s Internet activities altogether from the issues on appeal, the court thereby ensured that Mehanna will not be the important First Amendment precedent that many had thought it might be.”

US Attorney Carmen Ortiz, whose staff prosecuted Mehanna, hailed the ruling.

“We are gratified that the Court of Appeals carefully reviewed the case, found the evidence of the defendant’s guilt was more than sufficient to convict the defendant, and held that it was ‘confident’ that, in the court’s words, [Mehanna] ‘was fairly tried, justly convicted and lawfully sentenced,’ ” Ortiz said,citing the technical legality of the harsh conviction of the non-violent offender.
Judge Selya wrote in rejection of the appeal that Mehanna’s co-conspirators had “testified that the defendant persistently stated his belief that engaging in jihad was “a duty upon a Muslim if he’s capable of performing it,” and that this duty included committing violence.

Following United States intervention in Iraq, the defendant concluded “that America was at war with Islam,” and saw American “soldiers as being valid targets” by the attacked people. Mehanna took the position that “there was an obligation for Muslims to stand up and fight against invasion of Iraq.

“The fundamental problem with the [appellate] ruling is that it allows the government to prosecute unpopular political speech,” said Alex Abdo, staff attorney at the ACLU’s National Security Project.
Yet, beyond Mehanna’s religious belief in the concept of Jihad, or Just Warfare, he also claimed adherence to the doctrine of “aman,” which he describes as “a covenant to obey the law within a country that permits practice of the faith.” His adherence to aman would prohibit him personally from targeting American troops.

“The defendant’s position can be stated without much ceremony. He suggests… that although he may have sympathized with al-Qa’ida and spoken glowingly of the virtues of jihad, he nonetheless avoided crossing the line into criminal activity,” admits Selya.

However, Selya insists that: “Even if the government’s translation-as-material-support theory were factually insufficient, we would not reverse.”

Selya emotionally referred to the defendant’s flippant attitude regarding the “Texas BBQ” video — a phrase describing American soldiers being bombed in a widespread online video. Yet, this type of light-hearted style of murderous political commentary is very common among many Americans. One can only conclude that Mehanna is guilty of acting too American; too self-confident as a Muslim American, that he could joke about war.

Judge Selya concludes:

“We do not pretend to understand why the defendant chose to go down such a treacherous path. Nevertheless, the jury found that he knowingly and intentionally made that choice, and that finding is both supported by the clear weight of the evidence and untainted by legal error.”

It is truly unfortunate that an educated person such as Selya cannot even pretend to understand, let alone attempt to understand, why a Muslim American might sympathize with other Muslims globally, who are on the receiving end of drone attacks and worse. The court proceedings drew upon anti-Muslim prejudice not only in regards to the free speech issues but also regarding the question of who is allowed to travel abroad and for what reason.

In a world where armed, violent terrorists are trained by the US government – in Massachusetts – to send into other countries to influence political outcomes; in a world where youngsters go to Israeli terror camps to be trained in genocidal “fun,” I cannot think of anything more alarming than a judge who cannot “pretend to understand” the idea that any Muslim American might strive for freedom and equality – American style. Mehanna acted independently through free speech and free travel, without ever picking up a gun.

“The court’s likening of terrorism to ‘the modern-day equivalent of the bubonic plague’ is an example of the kind of sensational language that ensured a biased trial against Dr. Mehanna in the first place,” stated the Tarek Mehanna Support Committee. “The appeals court decision is outrageous, but we will continue to stand by Dr. Mehanna.”
“Tarek remains strong and unwavering in his iman,” reports Mehanna’s Facebook support page.

15-49