Since 9/11, the Department of Justice has prosecuted more than 500 terrorism cases, yet there remains scant public understanding of what these federal cases have actually looked like and the impact they have had on communities and families. Published by The Nation in collaboration with Educators for Civil Liberties, the America After 9/11 series features contributions from scholars, researchers and advocates to provide a systematic look at the patterns of civil rights abuses in the United States’ domestic “war on terror.”
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African-Americans in the heart of Michigan’s auto industry built the mosque I attended as a child. In the tide and tumult of the civil rights movement, Malcolm X and Elijah Muhammad inspired them first to join the Nation of Islam, and later Sunni Islam. In the late 1970s, in the impoverished black city of Saginaw, they converted an abandoned church into a mosque. My Pakistani immigrant parents joined the mosque when they moved to the wealthier white Saginaw township in the 1980s. Over time the regulars at the mosque became a hodgepodge of believers: South Asian and Arab immigrants who needed a house of worship and were unafraid of traversing the city-township boundary; and African-Americans whose embrace of Islam set them apart from their families.
Our African-American imam took turns with others to deliver the Friday khutba (sermon). We witnessed oral traditions accented from around the globe and across the road: the khateebs (deliverers of sermons) were lyrical and inspired, awkward and soft-spoken; the congregants received the khutba differently too, from active talk back to a silent receptive posture. While varied in style, the khutba routinely offered global context and critical content. The khateebs would remind us of the poverty in Detroit’s neighborhoods and the death in Baghdad’s streets. They would preach about the importance of the Muslim ummah (global community) and the duty to speak out against injustices small and large. The khateeb would regularly call for civic engagement as he also reached for religious inspiration.
These days, when I stop in a mosque, I am struck by the new normal: no politics, no world, no nimble movement between religious ethics and social context. Today’s khutbas present the congregation religious teachings in a void. Khateebs speak of the importance of honesty, forgiveness, humility and remembrance. They ignore Iraq and Afghanistan, Guantánamo and drones, informants and surveillance. They tell stories about Muhammad, Abraham, Moses, Mary and Jesus but leave out the universal themes of poverty, inequality and injustice.
From mosques to Muslim Student Association offices, American Muslim community spaces have been emptied of their politics, leeched of their dynamism as centers for religious and political debate. This new normal is the result of ten years of post-9/11 scrutiny combined with our government’s more recent embrace of “counter-radicalization” and “countering violent extremism” programs, which subject Muslim communities’ religious and political practices to aggressive surveillance, regulation and criminalization.
These programs both have their origins in what is popularly hailed as the “radicalization theory” of terrorism. This theory emerged around 2004 on both sides of the Atlantic as Western governments worked to frame the terrorist threat as a specifically Muslim phenomenon, and to develop a preventive approach to counterterrorism. Radicalization theory posits a predictable correlation between increased religiosity and politicization among Muslims and the potential for terrorism. That is, as Muslims become more “radical”—by observing religious tradition, for instance, or expressing any open affinity and concern for the welfare of other Muslims—they also become more likely to commit terrorist crimes, according to the theory.
In the United States, the Federal Bureau of Investigation and the New York Police Department helped seed radicalization theory, giving rise to an elaborate lattice of counterterrorism practices that touch on all aspects of Muslim life. From the NYPD’s infamous Demographics Unit, which created maps of Muslim communities in New York and New Jersey, to the FBI’s aggressive use of informants in mosques and community institutions, to the White House’s push for community engagement with Muslims, and the Department of Justice’s increasing emphasis on prosecuting speech activity, counter-radicalization and countering violent extremism, these policies have warped the basic currents of Muslim experience, turning them into threat indicators for the nation’s security.
Governments, including our own, laud these programs as soft counterterrorism measures. But this framing misses the shadowy side of these all-encompassing programs: the way counter-radicalization distends the government’s reach into the sacred and vulnerable turf of difference, debate, and democracy.
The rise of counter-radicalization and fall of the First Amendment
In recent years, journalists, advocates and Muslim community activists have helped expose part of the raw underbelly of the government’s counter-radicalization and countering violent extremism programs. But one area that has gone largely unexplored is the Justice Department’s growing embrace of a counter-radicalization ethos to prosecute national security cases. In framing expressions of political and religious belief as precursors to, and even evidence of, terrorism, these cases represent some of the most dramatic and alarming challenges in decades to the First Amendment’s core protections of free speech and freedom of religion.
The government’s prosecution of Egyptian-American Tarek Mehanna represents a blunt-force example of this assault on free speech and religion. Mehanna, 31, was born in the United States to Egyptian immigrant parents and grew up outside of Boston. He became a devout Muslim who was fiercely critical of US foreign policy, especially in Muslim countries. He believed deeply in the right of Muslims living in Muslim-majority countries to defend against foreign occupation. And he talked about it. He subtitled “jihadi” videos; he translated an archaic oft-translated Arabic text 39 Ways to Serve and Participate in Jihad; and he engaged in religious and political debate online through instant messages, e-mails and web postings. He also traveled to Yemen for a brief trip in 2004—the government alleged he sought to join a terrorist training camp, while Mehanna claimed he sought religious and language instruction—but whatever he was looking for, he did not find it, and he quickly returned home.
For these acts, Mehanna was monitored by the FBI beginning in 2005, and eventually, in 2008, charged with providing false information to the FBI, and then in 2009, with providing material support to terrorism. (Mehanna claimed the charges came in retaliation to his resistance to the FBI’s bid to make him an informant.) No evidence linked him to actual acts of terrorism or suggested that he had conspired with a real-world terrorist organization or provided any terrorist group with property, advice assistance or the like. However, he was found guilty in the trial court and sentenced to seventeen-and-a-half years in prison, and an appellate court recently affirmed the conviction.
To understand how a man like Mehanna wound up prison, it’s necessary to burrow into the mechanics of the government’s prosecution of terrorism cases. As in Mehanna’s case, most national security prosecutions the government has trotted out involve no act of terrorism, or even a plan to carry such a plan out. In the preventive paradigm of post-9/11 law enforcement, this is facilitated by the government’s liberal use of the criminal ban on material support to terrorist organizations—more commonly known as the material support statute—which is charged now in virtually all national security prosecutions. The ban includes such a sweeping list of banned activities that it has been described as “a prosecutor’s dream.” Indeed, the government needn’t show a plot, an intent to help terrorists, or even that the support actually advanced the terrorist group’s cause in any way. And now, counter-radicalization efforts are fashioning the elastic statute to cover more and more speech activity.
There are, however, limits to the wide scope of the material support statute. In the 2010 decision Holder v. Humanitarian Law Project, the Supreme Court sanctioned Congress’s power to ban support of activities of designated terrorist organizations, including peaceful activities. But as I argued in an amicus brief I filed with the Center for Constitutional Rights in support of Mehanna’s appeal, the Supreme Court’s First Amendment ruling in Holder v. Humanitarian Law Project was arguably quite narrow, finding only that Congress may criminalize speech that conveys something of value (such as training and expert advice), when the speaker is directly engaged with, or under the direction and control of, a foreign terrorist organization. Even in a slightly broader reading, speech turns into material support only when it is engaged at the behest, under the control or through direct engagement with a terrorist group. In either instance, the statute cannot punish “independent advocacy.”
And yet, that is precisely what the prosecution attempted to do in charging Mehanna with conspiring to provide material support for a terrorist organization. These charges drew on Mehanna’s trip to Yemen as well as his speech activity; at trial, the government relied on two similar (and similarly tangled) theories of liability.
First, the speech theory: The government’s indictment charged that Mehanna “created and/or translated, accepted credit for authoring, and distributed text, videos, and other media, to inspire others to engage in violent jihad.” The government continued to press this argument in court even as it conceded that Mehanna did not translate or speak under Al Qaeda’s direction and presented no evidence that he acted at the group’s request, or even that he ever met or communicated with anyone from Al Qaeda.
Indeed, the government offered no evidence that Mehanna provided material support “to” any designated terrorist organization, as the plain text of the material support ban requires. Nor did it show that Mehanna’s translations caused harm, or that he intended the translation to incite imminent criminal conduct. Instead, the speech-as-material-support theory appears to have turned largely on his attempts to convince and “inspire” others to support opinions the United States government finds objectionable.
In countering the prosecution’s claims, the defense insisted Mehanna was not a puppet of Al Qaeda or terrorist propagandist but a devout Muslim and strident critic of US policies engaged in independent and protected speech activity. As Mehanna made clear at his sentencing hearing, he supported the idea that Muslims should be able to defend themselves from foreign occupation—meaning, for example, that Muslims in Iraq should be able to defend themselves against US soldiers—and he came to these views by drawing on his religious and political commitments, as well his understanding of US and world histories. While his opinions were unquestionably sharp—no doubt repellent to many American ears—his is precisely the sort of unpopular speech that should be most protected under the First Amendment.
As for the travel theory, the evidence is harder to parse, but the government’s argument was no less diffuse: a case built on innuendo and association. The government argued that Mehanna traveled to Yemen in search of a terrorist training camp so that he could prepare for battle against US troops in Iraq. It pushed this theory even as it conceded that there were no terrorist training camps in Yemen in 2004 and never introduced evidence that Mehanna had found one. (The defense offered expert testimony that Al Qaeda did not operate in Yemen at the time of Mehanna’s 2004 trip, and argued Mehanna was after classical Arabic and religious schooling.)
Instead, in building its case, the government drew on the compound fears of Muslim countries, Muslim travelers and Mehanna’s religious and political views. Throughout the trial, the government introduced as evidence a barrage of “terrorist media” Mehanna consumed—including “more than thirty propaganda video clips” and “statements of Osama bin Laden and Ayman al-Zawahiri in book and interview form”—arguing that since Mehanna’s crimes were “ideological” the media was “integral” to the crimes with which he was charged. It was a classic case of guilt by association. The government merged its concerns over Mehanna’s speech with its attribution of criminal purpose to his travel—with obvious success.
On December 20, 2011, after a six-week trial in Boston, Mehanna was found guilty on all charges, though the jury’s guilty verdict offered no window into whether the jury relied on the government’s speech and/or travel theory of material support. Mehanna appealed, but on November 13, 2013, the US Court of Appeals for the First Circuit affirmed the verdict and Mehanna’s seventeen-and-a-half-year sentence.
In affirming the original verdict, the appeals court found sufficient evidence to allow the jury to convict Mehanna for his travel to Yemen. However, it sidestepped the First Amendment questions embedded in the government’s speech theory: Did the government introduce sufficient evidence of coordination between Mehanna and Al Qaeda to turn his otherwise protected speech into criminal material support?
In effect, the appeals court gave the government license to prosecute speech that is critical of the United States and supportive of ideas a terrorist group might embrace. Yet there is an important distinction between opposing US presence in Pakistan and Somalia—even in believing that Muslims in those countries have a right to armed resistance—and supporting the views of Al Qaeda. At trial, Mehanna’s defense put forth evidence that he disagreed with many of Al Qaeda’s views. But even if Mehanna did support the views of Al Qaeda, and even if he spent time trying to convince others of the righteousness of its positions, that should not be enough to invite criminal prosecution. Nor is it sufficient under Humanitarian Law Project, where the Supreme Court went to pains to protect independent advocacy. Even strident critical speech cannot and should not be considered material support.
The government’s prosecution of Tarek Mehanna is not the only case where prosecutors focused on speech the government finds unsavory. Zachary Chesser and Jesse Morton were two Muslim converts—Chesser in his early 20s from Virginia, and Morton in his early 30s from Brooklyn—charged in 2010 and 2012 with material support, conspiracy, and Internet-use-related charges, for posts to RevolutionMuslim.com and other Muslim-run websites; the government was centrally concerned with web ranting against South Park’s depiction of Muhammad. In 2011, Jubair Ahmad, a 24-year-old Pakistani-born US legal permanent resident living in Virginia, was charged with material support for preparing a video containing a prayer in support of jihad on behalf of Lashkar-i-Taiba, a South Asia–based designated terrorist organization.
In each of these recent prosecutions, the men pleaded guilty to some subset of the charges, making it impossible to know what the evidence would show. Yet these cases plainly demonstrate a pattern of targeting the dissemination of ideas for fear of what their circulation might produce—ideas that are critical of the United States, with no direct or immediate connections to terrorism or violence threatening the United States. This turns the First Amendment on its head: the historical development of our First Amendment doctrine reveals a deliberate rejection of prohibitions on advocacy of unpopular, objectionable, even unlawful activity—in favor of maximum protection of dissent, up to the point of intentional advocacy of imminent lawlessness.
A community silenced
The appellate court’s affirmation of Mehanna’s conviction was a sobering disappointment to critics who have railed against the prosecution as a dangerous precedent and a direct assault on essential First Amendment protections. Yet, viewed in a wider counterterrorism law enforcement context, there is little unprecedented about it. The government’s prosecution of Mehanna inhabits a larger world of counter-radicalization and countering violent extremism priorities, including others prosecutions, surveillance, informants and community engagement programs.
Radicalization theory has dramatically expanded the scope of counterterrorism police work. As revealed by the work of investigative journalists at the Associated Press, Mother Jones and The Nation, FBI and NYPD informants and undercovers troll Friday khtutbas, YouTube channels and chat rooms, listening for comments critical of the United States, and trawling for reactions praising Osama bin Laden. FBI agents pressure Muslim community members to agree to “voluntary” interviews, to inform on the goings on at the local mosque or community opinions of events in Syria or Somalia. Agent provocateurs poke, prod, and bait young Muslim men on their opinions of suicide bombing and jihad. Muslims are stopped for questioning when they cross borders for any reason.
The government’s attempts at community engagement form part of this patchwork effort. These programs aim to cultivate allies in Muslim communities, to shape religious and political cultures in Muslim communities to be wary of radicalization (that is, certain religious practice and political views), and even to acculturate American Muslims in acceptable religious practice and pro-law enforcement attitudes. While these programs work to build bridges with Muslim communities, they suggest the responsibility for terrorism rests in Muslim communities, their religious-cultural practices and political habits.
Viewed in this context, it comes as no surprise that Muslims are no longer talking about politics. The doctrine of collective guilt, charging all Muslims with responsibility for all terrorist violence, which reached fever pitch after 9/11 has a new name: counter-radicalization. From covert informants to trumpeted community engagement programs, law enforcement has put its weight behind surveillance and regulation of the religious and political ideas circulating in Muslim communities. Muslims know they are being watched. Muslims feel pressure to signal loyalty to American identity over their Muslim identity or else risk signaling terrorist propensity. Muslims are afraid of being too Muslim and therefore labeled anti-American, extremist, radical. Instead of speaking up, many Muslims have shut up.
No doubt, for many in our public who fear Muslims and Islam—or who separate the world into acceptable Muslims and dangerous Muslims, a dehumanizing distinction that carves up the world into enemies and supporters of the United States—this is a preferred state of affairs. For those of us who believe in a truly democratic and more egalitarian politics, one that holds our government accountable for its actions at home and abroad, nothing could be scarier.
More in the ‘America After 9/11’ Series:
Guantánamo in New York City Americans remain mostly blind to the abusive treatment of terror suspects on US soil.
by Jeanne Theoharis
Censored in Colorado Why did a Colorado prison prevent Fahad Hashmi from reading a Nation article about his incarceration?
by Jeanne Theoharis
Where’s the Outrage When the FBI Targets Muslims? The FBI employs the same repressive tactics as the NYPD in its broad surveillance of Muslim communities. Why does the FBI get a pass?
by Diala Shamas
How Mohammed Warsame Became an Accidental ‘Terrorist’ In the wake of 9/11, prosecutors have embraced “special administrative measures” to keep terrorism suspects guilty until proven otherwise.
by David Thomas