I've written before about the vexing problem of those working overtime to minimize terrorism and written a great deal about the case of Jamshid Muhtoror, the Uzbek refugee who has been arrested on charges of providing material support to the Islamic Jihad Union, a designated foreign terrorist organization.
The judge's decision has come down in a case that has some similarities, that of the Boston-based US citizen Terek Mehanna.
And not surprisingly, Joshua Foust has gone to bat for this man, sentenced to 17 years on charges of providing material support to Al Qaeda. Foust believes he has been unfairly tried and handed an overly-lengthy sentence for "thought crime," although he concedes that he deserves something like an eight-year sentence for lying to a grand jury.
As usual, there isn't a single comment questioning Foust -- and he never answers polemics in a forum like PBS where he'd have to behave himself under their likely "civility" TOS rules and argue with ideas instead of engaging in his usual nasty shenanigans. There's a bunch of adulatory re-tweets by people who don't even appear to think about the issues or read the indictment or dig deeper, but just take the "text as long as your hand" and click and click some more to like or retweet because it seems to fit the zeitgeist of suspecting every terrorist case as concocted by evil Amerika bent on subduing the world in the name of counterterrorism.
So I commented as follows:
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 [you have to click through a maturity wall because I believe it contains links to graphic beheading videos.]
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.
There is a lot to chew on at Lawfare on this case. Make sure to read all the blog entries there on this subject, not just this link if you want a very deep dive on it.
As Benjamin Wittes explains in a summary, Peter Margulies makes the lawyerly arguments in fact against the defense (and by extension Foust, but Foust isn't part of these debates on Lawfare):
While David Cole’s passionate defense of the First Amendment is always welcome, David overshoots the mark in his recent post on the Mehanna case. The Supreme Court held in Holder v. Humanitarian Law Project (see my analysis here) that Congress could constitutionally prohibit speech-related activity performed under the direction and control of a designated foreign terrorist organization (DFTO), such as Al Qaeda or Hamas. The Court, in an opinion by Chief Justice Roberts in which Justice Stevens joined, found that DFTOs routinely use negotiation and turns toward nonviolence to fundraise for fresh attacks on civilians. Individuals who knowingly or unwittingly assist the DFTOs’ deceit injure international cooperation and ratchet up terrorist violence. In his unsuccessful argument to the Supreme Court on behalf of the Holder plaintiffs, David conceded that the distinction between a DFTO’s violent and putatively nonviolent activities made no sense for Al Qaeda, whose commitment to violence is obvious.
...U.S. courts have regularly permitted prosecutions of individuals, such as World War II’s infamous Tokyo Rose, who knowingly provided propaganda to nations engaged in war against the U.S. In principle, the rule should be no different for DFTOs. For such groups, propaganda is inextricably linked to operations; terrorist plots are not random, but are carefully planned to maximize propaganda value. Propaganda spread by the group is not separate from, but indeed is crucial to, the group’s operations.
Mahenna tried to insist that he was merely making translations for scholarly purposes and an abstract discussion, and thus hoping to find remedy in the Supreme Court's notion that speech would have to be incitement to "imminent violence" to be prosecuted.
Wittes further explains how the notion that Joust keeps citing -- that "material support" is "overbroad" just isn't accepted by judges dealing with terrorism cases, any more than it has been accepted by judges in cases involving conspiracies around drugs by mafias, etc.
The government saw Mehanna’s case differently. It successfully argued at trial that Mehanna knew that the chat room, sponsored by an entity called Tibyan Publications, was in fact run by persons from Al Qaeda’s network, including the notorious Abu Qatada, who has long encouraged extremist violence from the United Kingdom while resisting extradition for past terrorist acts. American, Canadian, and British visitors to the chat room, which was password-protected, had sought to attend training camps or provide other assistance to Al Qaeda. Mehanna repeatedly lied to federal investigators about his role. The government took the reasonable position that terrorist networks are not hierarchical, but instead are widely dispersed. Organizations like Al Qaeda do not carry business cards, and security concerns mean that Al Qaeda’s former leader, Osama bin Laden, or current leader, Dr. Ayman al-Zawahiri, rarely offer specific operational advice. Instead, most orders and advice come from a broad group of people around the world. Courts have never required the government to prove that conspirators in ordinary cases involving drugs or organized crime had contact with the kingpins of the organization. The government can prevail in such cases by simply showing that defendants were “spokes in a wheel,” who had agreed with other conspirators to further the conspiracy’s objectives. Proving conspiracy to provide material support to a DFTO like Al Qaeda should be no different, the government argued; the jury agreed.
There's a troubling article in defense of Mahenna by David Cole at the New York Review of Books (and they should know better, and should have put this as a round table). Lawfare's Benjamin Wittes in fact answers the argumentation at NYRB by pointing out (as I do in my response to Foust) that in a *conspiracy* and when supplying material support, you can't hide behind the Brandenberg free-speech cloak.
As for the lengthy sentence, lying to a grant jury has clearly worsened it for this defendant. These cases are usually prosecuted by using the method of entrapment, and that evokes howling from the minimizers as well. It seems entrapment is all the FBI has, unless it can find turncoats within these movements who are willing to inform on their fellows (as they do in fighting Anonymous, the hackers' movement). They don't seem to get as lucky with Islamists as they have with Anonymous in finding informers.
Should this young man's sentence be reduced because he didn't actually commit a terrorist act or have any guns or anything? I think probably the prosecutor wants to make sure that providing material aid to terrorist groups is just not something that can be accepted as legitimate, much less as merely "thought crime" or "Interneting while Muslim," and that the way to discourage this is with heavy sentences.
Let's say that upon appeal, the judge accepts all the argumentation and reduces the sentence to only be about lying to the grand jury. Except...what he lied *about* was connecting with a man who was supposed to set up terrorist training for him in Yemen.
Even if all of the communication side of this case is dropped and it is decided it was a "Brandenberg" type free speech case after all, there is then the moral condemnation that should be coming and won't come from anyone like Foust (there is never even a pretense of a preface of such condemnation). Where will the intellectual condemnation of terrorism as a method ever come from? There is this fiction purveyed by Foust and others that there is some kind of bastion of conservatives or establishment figures who overstate the Muslim terror case. Where are they? When they do rarely appear, they are thrashed.
