Mehanna verdict: Speech, actions or both?

Was Tarek Mehanna of Sudbury found guilty because of his loathsome but constitutionally protected free-speech activities on behalf of Al Qaeda? Or did the jury believe he actually engaged in terrorism, especially during a trip to Yemen, where prosecutors say he sought training?

I hope reporters covering the case will seek to interview every juror, because the answer is vitally important. Right now it’s hard to know whether the verdict was an outrage against the First Amendment or something quite a bit less than that. In following coverage of the trial, it was clear that prosecutors tried to conflate the two — using Mehanna’s expression of pro-terrorism views to prove he was an actual terrorist.

Boston Globe reporter Milton Valencia tweeted a little while ago, “Judging by verdict, this was more than 1st Amendment decision. Was also centered on Yemen trip. Found guilty of conspiracy to kill.”

Talking up terrorism and the right to free speech

It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.

Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.

So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.

Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.

In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:

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.

Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.

To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”

I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.

Was the killing of Anwar al-Awlaki justified?

Anwar al-Awlaki

Before the assassination of Anwar al-Awlaki slips off the media’s radar screen, I hope we insist on one important question being answered: What, precisely, did Awlaki do to warrant his being killed by American forces?

I am not particularly concerned with Awlaki’s U.S. citizenship. He left the United States and joined a terrorist organization, Al Qaeda, against which the United States essentially declared war in 2001. As Bob Woodward reported in the Washington Post 10 years ago:

Since the Ford administration, all presidents have signed an executive order banning the CIA or any other U.S. government agency from involvement in political assassination. Generally speaking, lawyers for the White House and the CIA have said that the ban does not apply to wartime when the military is striking the enemy’s command and control or leadership targets.

And as Scott Wilson wrote in the Post on Friday, “citizenship is not a factor in determining whether a person can be lawfully killed under the laws of war.”

But I think we ought to know whether Awlaki was merely a propagandist for terror or if, as U.S. officials contend, he was actually involved in planning and operations. If any evidence has been released, I haven’t seen it.

Scott Shane wrote in the New York Times on Friday that Awlaki “participated in plots to blow up a Detroit-bound airliner in 2009 and to bomb two cargo planes last year” and “was fighting alongside the enemy in the armed conflict with Al Qaeda.” If those statements are true, I think the White House owes it to us — and to the world — to release whatever proof it has gathered.

Steve Kroft’s stunning omission

Anwar al-Awlaki

I wasn’t expecting much in the way of tough questioning last night when I sat down to watch President Obama’s interview with “60 Minutes.” The idea was to revel in the killing of Osama bin Laden. Steve Kroft’s questions — all of which were a variation on “Mr. President, why are you so wonderful?” — were no surprise.

Even so, I was startled when, toward the end of the interview, Kroft asked Obama, “Is this the first time that you’ve ever ordered someone killed?” The president blandly answered that every time he orders a military action, he does so with the understand that someone will be killed.

But what was missing from Kroft’s question and Obama’s answer was the name of Anwar al-Awlaki, a Yemeni-American whom the president ordered killed last year. Al-Awlaki survived a U.S. drone attack on his headquarters in Yemen on Saturday, after the “60 Minutes” interview was recorded. But the targeting of al-Awlaki was hardly a secret — it was even the subject of an unsuccessful lawsuit brought by his father. If Kroft didn’t know that, then he had no business sitting down with the president. If he did, well, why didn’t he say something?

The targeting of al-Awlaki, an American-born radical Islamist, was an extraordinary measure. As Jameel Jaffer of the ACLU, which helped with the lawsuit, has observed:

[T]he United States is not at war in Yemen, and the government doesn’t have a blank check to kill terrorism suspects wherever they are in the world. Among the arguments we’ll be making is that, outside actual war zones, the authority to use lethal force is narrowly circumscribed, and preserving the rule of law depends on keeping this authority narrow.

Should the United States be trying to kill al-Awlaki? According to this extensively footnoted Wikipedia article, al-Awlaki’s fiery rhetoric was the inspiration for a number of terrorist attacks. In addition, some say he has been involved in planning acts of terrorism and had advance knowledge of the 9/11 attacks. He may, in fact, be a legitimate target.

What troubles me is that it is not widely known that our government has targeted an American-born citizen for death. It’s something that ought to be debated openly, not relegated to an occasional mention in the media. So it’s an opportunity lost when a journalist like Kroft asks a question that is either ignorant or disingenuous, and then allows the president to dissemble without so much as a follow-up.

Did Kroft genuinely not know better, or had he and the folks at CBS News already decided not to press Obama? Either way, it was shocking omission. We could have learned something if only Kroft had bothered to do his job.

Photo via Wikimedia Commons.

The New York Times and the T-word

Peter King

The New York Times has a great story today on U.S. Rep. Peter King, R-N.Y., who is presiding over repugnant hearings into the loyalty of Muslim-Americans. Reporter Scott Shane reminds us that King made his reputation as a staunch supporter of the Irish Republican Army, which for years fought for independence from Britain in attacks that included the killing of hundreds of innocent civilians.

Yet I was struck by Shane’s lede, which frankly describes the IRA as “a terror group.” I don’t have any quarrel with that. But I was surprised, given the Times’ well-known squeamishness over using the T-word to describe Islamist organizations such as Hamas, which has engaged in suicide bombings against civilian targets in its war against Israel.

As the Times’ then-public editor, Clark Hoyt, wrote in 2008, “To the consternation of many, The Times does not call Hamas a terrorist organization, though it sponsors acts of terror against Israel.” It’s a policy that has put the Times in an awkward position previously, as in 2010, when the paper reported on criticism of Feisal Abdul Rauf, the imam of the proposed Islamic center near Ground Zero, for failing to label Hamas a terrorist group.

The United States, Canada, Israel, Japan and the European Union have all classified Hamas as a terrorist organization.

King’s response to being called out as a hypocrite is truly rancid, as he reveals that he couldn’t care less about the lives of British civilians who were killed in IRA attacks. “I understand why people who are misinformed might see a parallel,” he tells the Times. “The fact is, the IRA never attacked the United States. And my loyalty is to the United States.”

And in the 1980s, King had this to say: “If civilians are killed in an attack on a military installation, it is certainly regrettable, but I will not morally blame the IRA for it.”

Shane attempts to make comparisons between the IRA and Al Qaeda, and concludes — correctly — that Al Qaeda is considerably worse. But the parallels between the IRA and Hamas seem pretty obvious.

The IRA engaged in terrorist attacks, but gradually moved toward a renunciation of such attacks as it uneasily groped its way toward a peace settlement with Britain and participation in government.

Hamas, which governs the Gaza Strip, may or may not be capable of moving toward a peace settlement with Israel. But certainly it was unclear at a similar stage as to whether the IRA was capable of making such a transition.

It’s pretty simple. Either the IRA and Hamas are/were terrorist organizations, or neither is. I hope public editor Arthur Brisbane will explain why it’s all right for the Times to call the IRA a “terror group” when it refuses to do the same with respect to Hamas.

Lost Will on Afghanistan

Columnist George Will today calls for the near-total withdrawal of U.S. troops from Afghanistan, writing:

[F]orces should be substantially reduced to serve a comprehensively revised policy: America should do only what can be done from offshore, using intelligence, drones, cruise missiles, airstrikes and small, potent Special Forces units, concentrating on the porous 1,500-mile border with Pakistan, a nation that actually matters.

Will’s column is not a huge surprise — he’s been offering previews on ABC’s “This Week.” His assessment matters because of his status as a conservative icon, although, as a traditional conservative rather than a neocon, he was never as gung-ho about war in the Middle East as, say, William Kristol.

Giving Will’s views even more resonance is an especially bleak assessment by Gen. Stanley McChrystal, the American commander in Afghanistan, who is calling for a far greater commitment of U.S. forces.

President Obama faces an incredibly difficult dilemma. He campaigned on a platform of shifting resources from Iraq to the conflict in Afghanistan and Pakistan, arguing that the move was necessary to deny Al Qaeda a refuge. Yet that’s a dubious proposition, given that Al Qaeda could move anywhere. Indeed, the only reason it’s in Afghanistan is because it was chased out of Sudan.

But before you say we should let Afghanistan go, remember that Pakistan is unstable and armed with nuclear weapons.

Is Will right? I don’t know. I do know that if Obama can meet American security needs without putting American troops in harm’s way, then he should do so as quickly as possible.