Tarek Mehanna of Sudbury, Massachusetts after he was arrested and charged with conspiring to plot terror attacks against shoppers in U.S. malls and against U.S. military in Iraq. (AP Photo/Sudbury Police Department, File)
An earlier version of this Comment appeared on the New York Review of Books blog.
Google “39 Ways to Serve and Participate in Jihad,” and you’ll get more than 590,000 hits. You’ll find full-text English translations of this Arabic document on the Internet Archive, an e-library; on 4Shared Desktop, a file-sharing site; and on numerous Islamic sites. You will find it cited and discussed in a Senate committee staff report and in Congressional testimony. Feel free to read it. Just don’t try to make your own translation from the original, which was written in Arabic in Saudi Arabia in 2003. Because if you look a little further on Google you will find multiple news accounts reporting that on April 12, Tarek Mehanna, a 29-year-old citizen from Sudbury, Massachusetts, was sentenced to seventeen and a half years in prison for translating “39 Ways” and helping to distribute it online.
As Anthony Lewis used to ask in his New York Times columns, “Is this America?” Seventeen and a half years for translating a document? That the counterterrorism imperative has put tremendous strain on freedom of speech has been evident at least since the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project, which upheld the criminalization of speech advocating peace and human rights when expressed to or on behalf of a designated “terrorist organization.” The threat to free expression was manifest long before that in Muslim communities, where expressing a radical idea will make you the target of informants, undercover agents and pressures to “cooperate” with entrapment schemes. But when the mere translation of a document can form the basis of a criminal conviction, without any evidence that it sparked a violent or unlawful act, we have reached a new level of speech suppression.
Granted, the document that formed the centerpiece of Mehanna’s trial is an extremist text. Among the “39 ways” are “Truthfully Ask Allah for Martyrdom,” “Go for Jihad Yourself,” “Giving Shelter to the Mujahedin” and “Have Enmity Towards the Disbelievers.” (Others, however, include “Learn to Swim and Ride Horses,” “Get Physically Fit” and “Expose the Hypocrites and Traitors.”) But surely we have not come to the point where we lock people up for translating a widely available document. After all, news organizations and scholars routinely translate and publicize jihadist texts. Think, for example, of the many reports over the past decade of messages from Osama bin Laden.
The Mehanna conviction represents a new front in the “war on terror”: muzzling Internet propaganda. Mehanna’s crime was to disseminate ideas that favored the “enemy.” In addition to the “39 Ways,” much of the government’s case against him relied on excerpts from his chat room conversations, in which Mehanna debated jihadist ideas, engaged in sometimes disturbing banter about violent acts and expressed admiration for bin Laden and Al Qaeda. According to the prosecution, the conversations demonstrate that he did the translation intending to support Al Qaeda, and for that he will spend more than seventeen years in prison.
The case against Mehanna, who had no criminal record before his 2009 arrest, rested on two basic charges: that he had traveled with friends to Yemen in 2004 for ten days in an unsuccessful search for a jihadist training camp; and that upon his return he translated several jihadist tracts and videos for Internet distribution, allegedly to spur readers on to jihad. After a two-month trial, he was convicted of conspiring to provide “material support” to a “terrorist organization.” The jury did not specify whether it found him guilty for his trip to Yemen—which resulted in no known contacts with jihadists—or for his translation. So, under established law, the conviction cannot stand unless it’s permissible to penalize him for his speech. Mehanna is appealing the decision.