Tarek Mehanna: Punishing Muslims for free speech only helps Al Qaeda

On April 12 the United States government successfully convicted another young Muslim male who believed he had the right to express his deep disdain for American foreign policy in the Middle East and Asia. Tarek Mehanna, an American-born Bostonian, took his First Amendment rights quite seriously when he vocally condemned his government for killing thousands of Muslims abroad. As a result, he was convicted of conspiring to help Al Qaeda.

While his prosecution may appear to be another success in the nebulous war on terror, it is in fact a victory for terrorists abroad who win hearts and minds when the American government bends over backward to prosecute Muslims in America with little regard for the Constitution.

Without a doubt, Mr. Mehanna’s political beliefs and speech were controversial if not outright offensive. Indeed the prosecutors highlighted a website run by Mehanna that often posted English language translations of Islamic teachings in favor of self-defense and circulated gruesome “jihadi” videos.

But what the prosecution was unable to show was Mehanna’s willingness to actually engage in violence in furtherance of his political beliefs. At numerous junctures during which Mehanna was under surveillance, Mehanna rebuked overtures by government informants and others to join them in a terrorist attack. To the contrary, Mehanna limited his actions to speaking out and writing against US foreign policy as well as translating controversial extremist materials into English.

In addition, Mehanna traveled to Yemen in 2004. He claimed his visit was to study Arabic and Islam. The government alleged he went to join Al Qaeda and later returned home to assist the terrorist organization expand its influence in the US. But both admit that Mehanna never actually planned or attempted to execute a violent terrorist act.

But for the 2010 Supreme Court’s flawed decision in Humanitarian Law Project v. Holder (HLP), it is doubtful the prosecution would have stood a chance at a conviction. The ruling in HLP criminalized “coordinated advocacy” with a designated terrorist group as unlawful material support to terrorism, while “independent advocacy” remained protected by the First Amendment.

Thus the case came down to whether Mehanna’s vocal criticism of US military practices in Afghanistan, Iraq, and other Muslim majority countries was coordinated with Al Qaeda operatives. Similarly, when he translated Islamic literature and Al Qaeda propaganda, the government labeled it “coordinated advocacy” such that he was providing unlawful material support to terrorism.

Ultimately, the case depended on whether the jury believed the government’s explanation for Mehanna’s 2004 trip to Yemen. Had he not taken the trip, perhaps he would never have been convicted of conspiring to aid Al Qaeda, though he likely would still have been prosecuted.

In fact, Mehanna had been under surveillance for years on account of his controversial political speech. He believes he was prosecuted because he refused demands by the government to serve as an informant. If true, he is not the first Muslim to face prosecution for his refusal to snitch on other Muslims.

Some Americans may view Mehanna’s conviction as legitimate and necessary to protect Americans from terrorists. But if Mehanna’s case becomes the norm for prosecuting people for vocalizing extremist views, then it is now incumbent on the government to be much more vigilant and file hundreds of indictments against white militia groups, patriot groups, and even some tea party chapters who spew vitriolic anti-government rhetoric and churn out extremist literature as some of them sit on large caches of weapons.

Those who differentiate between Mehanna and the white extremist groups, whose literature arguably leads to hundreds of hate crimes against minorities every year, have much explaining to do. Other than the color of their skin and their religious backgrounds, there is not much difference between Mehanna and the Sovereign Citizens’ movement, neo-Nazis, and the Ku Klux Klan. And yet the US government allows the latter groups to operate relatively openly despite American’s collective aversion to their repulsive ideologies.

That is because the Founding Fathers had the foresight to know that without constitutional protection for dissent, especially unpopular and controversial dissent, those in power would use the law to remain in power indefinitely. Hence a meaningful democracy cannot exist without the First Amendment. If it were not for this fundamental right to criticize one’s government, no matter how distasteful, many of our earliest leaders would have been executed or exiled to a life of imprisonment.

One consequence of such freedoms is allowing more than 1,000 hate groups to exist so long as they do not orchestrate imminent lawlessness. This allowed the Ku Klux Klan to hold a rally before a crowd of 500 people in southern Georgia in 2010 and a militant Christian fundamentalist church in California to essentially declare war on the government – without facing criminal prosecution.

When government makes exceptions for Muslims with extreme viewpoints, it does not actually keep our country safer. It simply makes these individuals martyrs. Which is precisely what Al Qaeda wants.

Sahar Aziz is an associate professor at Texas Wesleyan School of Law where she teaches national security and civil rights. She is a fellow at the Institute for Social Policy and Understanding and serves on the board of the Egyptian American Rule of Law Association.