2012-04-15 How free speech becomes terrorism: The Tarek Mehanna case and the implications for WikiLeaks and Julian Assange

I am indebted to Glenn Greenwald who posted an article here on the Tarek Mehanna case.

Greenwald outlines the case:

Tarek Mehanna, an American Muslim, was convicted this week in a federal court in Boston and then sentenced yesterday to 17 years in prison. He was found guilty of supporting Al Qaeda (by virtue of translating Terrorists’ documents into English and expressing “sympathetic views” to the group) as well as conspiring to “murder” U.S. soldiers in Iraq (i.e., to wage war against an invading army perpetrating an aggressive attack on a Muslim nation)

In a link by Greenwald to Julia Spitz of MetroWest Daily News, further details emerge:

He was a 'serious young man' who wanted to 'exemplify Islam,' said the judge, but became consumed by a fervor that led him to support al Qaeda by translating materials from Arabic into English and 'proselytizing' to recruit others to embrace his views.

Embrace his views or incite others to violence? (one might ask). As I wrote here, about incitement on the subject of certain Americans inciting others to kill Julian Assange:

There is no automatic 1st Amendment protection per Brandenburg v. Ohio, 395 U.S. 444 (1969):
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

The Brandenberg 'test' therefore appears no longer to be 'good' US law, unless the prosecutor at trial managed to adduce evidence that Mehanna was directed by Al Queda to do as he did, in which case the bare elements of a conspiracy are made out. There appears to be no evidence that Mehanna did conspire with Al Queda and the information at hand strongly suggests Mehanna engaged only in independent advocacy against the US's propensity to wage wars on Muslim nations and kill innocent civilians in large numbers, without the command structure in any way being held accountable, (excepting for example, as history has recorded, prosecutions of the lowest ranking soldiers for torture at Abu Ghraib in Iraq.)

I suspect that the jury may have been misdirected in the Mehanna case by the judge on points of law, but even if that is incorrect, it seems apparent that in terrorism cases around the world, juries can be so easily prejudiced against those who hold repugnant views such that it is becoming impossible to conduct fair trials in 'terrorism' cases. (The US is not alone in this respect and this writer and lawyer is an equal opportunity critic of an Australian case where certain things happened during the trial where the jury was/must_have_been influenced by certain events that should have seen the jury discharged and the trial aborted. That case, I believe is/should be wending its way to the NSW Court of Criminal Appeal.)

At sentence Mehanna, in part read this to sentencing Judge O'Toole:

All those videos and translations and childish bickering over ‘Oh, he translated this paragraph’ and ‘Oh, he edited that sentence,’ and all those exhibits revolved around a single issue: Muslims who were defending themselves against American soldiers doing to them exactly what the British did to America. It was made crystal clear at trial that I never, ever plotted to “kill Americans” at shopping malls or whatever the story was. The government’s own witnesses contradicted this claim, and we put expert after expert up on that stand, who spent hours dissecting my every written word, who explained my beliefs. Further, when I was free, the government sent an undercover agent to prod me into one of their little “terror plots,” but I refused to participate. Mysteriously, however, the jury never heard this.

So, this trial was not about my position on Muslims killing American civilians. It was about my position on Americans killing Muslim civilians, which is that Muslims should defend their lands from foreign invaders – Soviets, Americans, or Martians. This is what I believe. It’s what I’ve always believed, and what I will always believe. This is not terrorism, and it’s not extremism. It’s what the arrows on that seal above your head represent: defense of the homeland. So, I disagree with my lawyers when they say that you don’t have to agree with my beliefs – no. Anyone with commonsense and humanity has no choice but to agree with me. If someone breaks into your home to rob you and harm your family, logic dictates that you do whatever it takes to expel that invader from your home.

But when that home is a Muslim land, and that invader is the US military, for some reason the standards suddenly change. Common sense is renamed ”terrorism” and the people defending themselves against those who come to kill them from across the ocean become “the terrorists” who are ”killing Americans.”...

The right to self defence (or to argue for self defence?) is necessarily enshrined in domestic law. For an adversarial system example :

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.

While this is domestic law the principles are similar and apply to international armed conflicts. (The only complications that occur is when non state actors become involved, but that does not necessarily deny the right of self defence, however those exercising it are obliged to comply with the laws of armed conflict and safeguard civilian lives.)

What Mehanna did (apparently) was to support the principle of self defence as exercised by Al Queda against the US military, (what is commonly believed by jurists around the world to have been an illegal war). While Al Queda is clearly an odious and murderous group with much innocent blood on its hands, (among others) its killing of invaders from the USA in Iraq was not necessarily contrary to the laws of armed conflict. Mehannah's advocacy of the right to self defence however came against the US's quasi-legal view that anybody who opposes them militarily is a prima facie terrorist, or terrorist supporter.

The Wikileaks Dimension.

The concern I have is that the Mehannah case does not auger well for the future and the probability that Julian Assange will at some stage be extradited to the USA. Readers will recall VP Biden's statement that Assange is a "hi-tech terrorist" for example. The climate in the USA, given the level of the sycophantic media inspired near hysterical outrage against Wikileaks and Julian Assange in particular: is palpable.

Judges in my jurisdiction give great attention to instructing juries that they must only judge a case on the evidence before them, and that to seek outside information is not only highly improper but attracts sanctions; that as members of the jury panel and if prejudiced against the defendant they must declare that prejudice and be excused. In the US climate, given the depth of anti Wikileaks attacks; corporate withholding of financial services crippling Wikileaks to a highly significant degree; smears by former media partners including the New York Times; outright lies that Julian Assange has been charged with sex offences (when he has not): would all make problematic a fair trial of Julian Assange on whatever indictment was presented. To the adage that a grand jury will indict a ham sandwich, could be added that a US jury will convict a ham sandwich indicted for terrorism or terrorist related offences.

The common thread of such an indictment, (as it was for Mehanna) is of course about free speech or lack thereof. We can readily imagine, or predict what DOJ prosecutors will present in an opening address, "...aiding and abetting the enemies of the USA members of the jury..."..."material support for TERRORISTS TERRORISTS, members of the jury, don't forget that important part of the prosecutions case (subtext: convict this dude and rest easy in your beds)!!!").

Such aiding and abetting simply boiled down, being of course the release of damaging evidence that inadvertently (and irrelevantly) caused groups like Al Queda to either gloat or laugh at the US's expense. So much for the rights of the First Amendment.

Whatever part of the Espionage Act that a US indictment of Julian Assange contains, we can be sure of one thing, Julian Assange, like Bradley Manning, would be in custody for years before the case ever came to trial. And it's probably correct to say that that's the way the US government would want it to be.

A final thought on what people might say or believe were Julian Assange extradited and put on trial in the USA:

1) US domestic law trumps any or all international law.
2) The Australian government on current trends, washing their hands in true Pontius Pilate tradition would be found wanting.