Is publishing radical Islamic texts on the Internet a crime?

[jimmy olsen]

Sounds like free speech to me.

http://www.slate.com/articles/technology/future_tense/2014/09/mehanna_at_the_supreme_court_is_translating_jihad_texts_a_crime.html

Translating Terrorism
Is publishing radical Islamic texts on the Internet a crime?
By Mark Joseph Stern
Photo by Larry Downing/Reuters Chief Justice John Roberts ruled that Americans can't "coordinate" with terrorists. Does translating their propaganda count?

Photo by Larry Downing/Reuters

In the spring of 2005, Tarek Mehanna began translating radical Arabic books and videos into English for the website At Tibyan. The materials had an undeniable flavor of terrorism, encouraging readers to join al-Qaida and kill American soldiers in Iraq. But even the government acknowledges that Mehanna never translated anything at the direct behest of al-Qaida operatives—which is why it's rather surprising that the government successfully prosecuted him for providing "material support" to a terrorist organization and sentenced him to 210 months in prison.
Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

Everybody agrees that Mehanna supported al-Qaida's cause; At Tibyan is a fairly popular terrorist forum, and Mehanna translated its content with the clear intention of swaying opinion toward the jihadist cause. But translating, publishing, and praising ideological texts, no matter how morally vile, is generally considered to be a basic free speech activity. Everyone knows that the First Amendment protects translations of Mein Kampf. Why did Mehanna's translation of jihadist hosannas land him behind bars?

That's the question Mehanna is asking the Supreme Court, which will decide whether to take his case later in September. If the justices do agree to review Mehanna's conviction, it'll be wading into a constitutional controversy at once timeless and novel. The court has long recognized that cheerleading for terrorism may eventually cross the line from free speech to a criminal act. But the Internet's ability to spread ideas and connect like-minded people may now force the justices to reconsider that boundary. And if the court lets Mehanna's conviction stand, it may wind up drawing the line dangerously close to the kind of Internet activity some of us engage in without a second thought.
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The Supreme Court has been grappling with the question of dangerous speech for as long as America has been attempting to suppress dissent in the name of national security—that is, pretty much forever. For our first century or so, nobody thought that criminalizing anti-American speech raised a real First Amendment concern. But in a 1919 case called Abrams v. United States, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, cracked the orthodoxy wide open, issuing a stunning dissent from the conviction of a revolutionary anarchist who advocated a violent overthrow of the U.S. government. Holmes described a constitutional command to tolerate anti-government speech, explaining that censorship of "opinions that we loathe and believe to be fraught with death" is unacceptable unless those opinions "imminently threaten" the country's safety.

Today, Holmes' view is more or less the law. But that hasn't kept Congress from passing censorship laws on the theory that a certain group's speech qualifies as a clear and present danger to the country. The latest attempt, a post-9/11 anti-terrorism law, made it illegal for anyone to "knowingly" provide "material support or resources" to a foreign terrorist organization, even for nonviolent purposes. What if that material support comes in the form of otherwise protected speech? That's OK, said the Supreme Court in a 2010 called Holder v. Humanitarian Law Project—so long as the terrorist sympathizer truly "coordinated" with a terrorist organization.

This "coordination" standard appears nowhere in the law itself; the court wrote it in, since, without it, the statute would be a hopelessly unconstitutional suppression of speech. But where, exactly, does free speech end and unlawful terrorist coordination begin? We'll save that question for another day, the court wrote, when a "concrete fact situation" presents itself.

Mehanna is hoping the court will view his prosecution as precisely the kind of "concrete fact situation" it prognosticated in 2010. But even if the justices vote to take his case, it's no sure thing that they'll grant him First Amendment protection. There's little doubt that Mehanna wanted to help terrorists; it seems the only thing that stopped him was his own utter fecklessness. He flew to the Middle East to join a terrorist training camp but couldn't find any; he was intent on killing American troops stationed in Iraq but got cold feet once he arrived in Fallujah. When an actual al-Qaida associate finally got in touch in Mehanna asking him to translate a video, Mehanna seems to have overlooked the email; when the associate followed up six months later, Mehanna was puzzled, responding, "what do u mean."

The government's case, then, is built on the tenuous theory that by associating with al-Qaida associates and promoting jihadist speech, Mehanna provided coordinated material support to terrorists. There is, however, a problem with this theory: It's exactly what the government promised it wouldn't do in the Humanitarian Law Project case. During oral arguments for that case, then-Solicitor General Elena Kagan told Justices Ruth Bader Ginsburg and Anthony Kennedy that Americans could "absolutely" still meet and communicate with terrorists, and advocate for their causes. The one activity the law forbade, Kagan agreed, was "communicat[ing] advice" to terrorists "on how to pursue their goals."
​

Why is this distinction between "advocacy" and "communication" important? Because without it, we may accidentally become a nation of criminal terrorist sympathizers. The Internet fosters association and amplifies advocacy. Under the government's revised interpretation of the law, an American who uses the Web to defend terrorist groups might find herself facing federal prosecution.

This scenario might seem far-fetched—but in reality, it's chillingly plausible. Imagine an American driven to sympathize with Hamas, a designated foreign terrorist organization, after seeing images of brutality in Gaza. She posts Facebook statuses supporting Hamas' mission to "free Gaza" and converses with other Hamas supporters—including a few associates of the organization—on a blog. Eventually, she begins translating Hamas' statements and posting them online at the behest of her newfound comrades. All of this activity would seem to be a constitutionally protected form of speech and association. But under the government current theory, our Hamas sympathizer is, in fact, a criminal who has "coordinated" with terrorists to provide them with "material support."

Mehanna hopes tech-flavored hypotheticals like these will convince the Supreme Court that the law (as the government construes it) is an infringement on his free speech rights. He's also arguing that this interpretation of the law in unconstitutionally vague—that is, its contours are so blurry that Mehanna couldn't have known his actions were criminal. It'll be a close call. The justices have a mixed record in applying legal principles to new technology; sometimes, they do a decent job; other times, they get confused about GPS trackers and tiny constables.

[CountDeMoney]

Not everybody reads Arabic and has time to wait for peer-reviewed academic works or the intel community to publish topical primary source documents for open-source analysis.  Surprised nobody's addressing that angle.

[Martinus]

I thought incitement to crime is not protected by free speech.

[The Brain]

He covers science, the law, and LGBTQ issues.

The fuck?

[jimmy olsen]

I thought incitement to crime is not protected by free speech.

Thought it was incitement to specific, immediate crime. Wasn't the great dissent made in favor of Anarchists who were preaching the overthrow of the U.S. government?

[The Minsky Moment]

This isn't a great test case.  The author fails to mention another key aspect of the case: Mehanna and some of his buddies travelled to Yemen, and the government presented evidence that they did so with the express purpose of locating an al-Qaeda training camp in order to receive training and then go to Iraq to fight Americans.  The appeals court found that the evidence on this point was sufficient to sustain the verdict.  It also found that the jury instructions relating on the translations followed the Holder v. HLP case discussed by the author.  While Mehanna could nonetheless argue there was insufficient evidence of "coordination" to support a conviction consistent with the First Amendment, that would not help him if there was sufficient evdence to support conviction on his Yemen adventure.

[jimmy olsen]

This isn't a great test case.  The author fails to mention another key aspect of the case: Mehanna and some of his buddies travelled to Yemen, and the government presented evidence that they did so with the express purpose of locating an al-Qaeda training camp in order to receive training and then go to Iraq to fight Americans.  The appeals court found that the evidence on this point was sufficient to sustain the verdict.  It also found that the jury instructions relating on the translations followed the Holder v. HLP case discussed by the author.  While Mehanna could nonetheless argue there was insufficient evidence of "coordination" to support a conviction consistent with the First Amendment, that would not help him if there was sufficient evdence to support conviction on his Yemen adventure.

They mention it

There's little doubt that Mehanna wanted to help terrorists; it seems the only thing that stopped him was his own utter fecklessness. He flew to the Middle East to join a terrorist training camp but couldn't find any; he was intent on killing American troops stationed in Iraq but got cold feet once he arrived in Fallujah. When an actual al-Qaida associate finally got in touch in Mehanna asking him to translate a video, Mehanna seems to have overlooked the email; when the associate followed up six months later, Mehanna was puzzled, responding, "what do u mean."

The government's case, then, is built on the tenuous theory that by associating with al-Qaida associates and promoting jihadist speech, Mehanna provided coordinated material support to terrorists. There is, however, a problem with this theory: It's exactly what the government promised it wouldn't do in the Humanitarian Law Project case. During oral arguments for that case, then-Solicitor General Elena Kagan told Justices Ruth Bader Ginsburg and Anthony Kennedy that Americans could "absolutely" still meet and communicate with terrorists, and advocate for their causes. The one activity the law forbade, Kagan agreed, was "communicat[ing] advice" to terrorists "on how to pursue their goals."
​

Why is this distinction between "advocacy" and "communication" important? Because without it, we may accidentally become a nation of criminal terrorist sympathizers. The Internet fosters association and amplifies advocacy. Under the government's revised interpretation of the law, an American who uses the Web to defend terrorist groups might find herself facing federal prosecution.

[The Minsky Moment]

He doesn't mention that Mehanna travelled with others who he encouraged to undertake terrorist acts and met AQ contacts in Yemen, he doesn't mention that evidence related to that trip was presented as a separate and independent basis for conviction . That trip is what the governments case was "built on", more than the translations.   These are critical facts that weaken the legal case for a new trial and makes Supreme Court review less likely,  A good legal journalist would point that out and help the lay reader understand, not bury the point and make it sound almost exculpatory.

[Ideologue]

"what do u mean"?

Why haven't we hanged him already?

[Martinus]

Under the government's revised interpretation of the law, an American who uses the Web to defend terrorist groups might find herself facing federal prosecution.

[Viking]

The Middle East Media Research Institute - MEMRI is a fantastic organization which often chills me to the bone and fascinates me. It translates into english and other languages the discourse in arabic in the arab world. '

We do have a serious problem with our approach (us as in the west in general) to islamism. We are incapable of identifying the enemy without getting twisted into knots by political correctness, racism etc.

[sbr]

We need to blow up some white people so we can say bad things about them and not feel bad.

[sbr]

Are Russians white? 

[Eddie Teach]

Are Russians white? 

Belarussians are.

[CountDeMoney]

The Middle East Media Research Institute - MEMRI is a fantastic organization which often chills me to the bone and fascinates me. It translates into english and other languages the discourse in arabic in the arab world. '

They're very paricular who they give material to by request, went through all sorts of hoops with them when I was with the state, but they are a fantastic repository of information.

We do have a serious problem with our approach (us as in the west in general) to islamism. We are incapable of identifying the enemy without getting twisted into knots by political correctness, racism etc.

We're supposed to eventually win with our values system, e.g., tolerance over intolerance.
Yes, it's frustrating, but that's the long game.