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David Cole
David Cole
David Cole is Professor of Law at Georgetown University Law Center and author of several books including "The Torture Memos: Rationalizing the Unthinkable" (2009).
39 ways to limit free speech
Is freedom of expression really free when the government can punish that expression because of its political content?
Last Modified: 02 May 2012 15:30
Freedom of expression only goes so far in a post 9/11 world if that 'expression' is political [GALLO/GETTY]

Washington, DC - Google "39 Ways to Serve and Participate in Jihad" and you'll get over 590,000 hits. You'll find full-text English language translations of this Arabic document on the Internet Archive, an internet library; on 4Shared Desktop, a file-sharing site; and on numerous Islamic sites. You will find it cited and discussed in a US Senate Committee staff report and 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, a 29-year old citizen from Sudbury, Massachusetts named Tarek Mehanna was sentenced to 17 and a half years in prison for translating "39 Ways" and helping to distribute it online.

As Anthony Lewis was wont to ask in his New York Times columns, "Is this America?" Seventeen and a half years for translating a document? Granted, it's an extremist text. Among the "39 ways" it advocates include "Truthfully Ask Allah for Martyrdom", "Go for Jihad Yourself", "Giving Shelter to the Mujahedin", and "Have Enmity Towards the Disbelievers". (Other "ways to serve", however, include, "Learn to Swim and Ride Horses", "Get Physically Fit", "Stand in Opposition to the Disbelievers" and "Expose the Hypocrites and Traitors".)

But surely we have not come to the point where we lock people up for nearly two decades for translating a widely available document? After all, news organisations and scholars routinely translate and publicise jihadist texts; think, for example, of the many reports about messages from Osama bin Laden.

In 2009, Tarek Mehanna, who has no prior criminal record, was arrested and placed in maximum security confinement on "terrorism" charges. The case against him rested on allegations that as a 21-year old he had travelled with friends to Yemen in 2004 in an unsuccessful search for a jihadist training camp in order to fight in Iraq, and that he had translated several jihadist tracts and videos into English for distribution on the internet, allegedly to spur readers on to jihad.

Pre-9/11 vs post-9/11

After a two-month trial, he was convicted of conspiring to provide material support to a terrorist organisation. The jury did not specify whether it found him guilty for his aborted trip to Yemen - which resulted in no known contacts with jihadists - or for his translations, so under established law, the conviction cannot stand unless it's permissible to penalise him for his speech. Mehanna is appealing.

Under traditional (read "pre-9/11") First Amendment doctrine, Mehanna could not have been convicted even if he had written "39 Ways" himself, unless the government could shoulder the heavy burden of demonstrating that the document was "intended and likely to incite imminent lawless action", a standard virtually impossible to meet for written texts.

In 1969, in Brandenburg v Ohio, the Supreme Court established that standard in ruling that the First Amendment protected a Ku Klux Klansman who made a speech to a Klan gathering advocating "revengeance" against "niggers" and "Jews". It did so only after years of experience with federal and state governments using laws prohibiting advocacy of crime as a tool to target political dissidents (anarchists, anti-war protesters and Communists, to name a few).

But in Mehanna's case, the government never tried to satisfy that standard. It didn't show that any violent act was caused by the document or its translation, much less that Mehanna intended to incite imminent criminal conduct and was likely, through the translation, to do so. In fact, it accused Mehanna of no violent act of any kind. Instead, the prosecutor successfully argued that Mehanna's translation was intended to aid al-Qaeda, by inspiring readers to pursue jihad themselves, and therefore constituted "material support" to a "terrorist organisation".

"History shows that free speech is fundamental to a robust democracy, and that if the government can punish expression because of its political content, it will use that power to go after its enemies."

The prosecutor relied on a 2010 Supreme Court decision in a case I argued, Holder v Humanitarian Law Project. In Humanitarian Law Project, a divided Court upheld the "material support" statute as applied to advocacy of peace and human rights, when done in coordination with and to aid a designated "terrorist organisation". (The plaintiffs in the case sought to encourage the Kurdistan Workers Party in Turkey to resolve their disputes with the Turkish government through lawful means, by training them in bringing human rights complaints before the United Nations and helping them in peace overtures to the Turkish government.)

The Court ruled that the government could criminalise such advocacy of peaceful nonviolent activity without transgressing the First Amendment, because, it reasoned, any aid to a foreign terrorist organisation might ultimately support illegal ends.

Punishing political expression

The Humanitarian Law Project decision is troubling enough, as I have previously explained. But Mehanna's case goes still further. The government provided no evidence that Mehanna ever met or communicated with anyone from al-Qaeda. Nor did it demonstrate that the translation was sent to al-Qaeda. (It was posted by an online publisher, Al-Tibyan Publications, that has not been designated as a part of or a front for al-Qaeda.) It did not even claim that the "39 Ways" was written by al-Qaeda. The prosecution offered plenty of evidence that in internet chat rooms Mehanna expressed admiration for the group's ideology, and for Osama bin Laden in particular. But can one provide "material support" to a group with which one has never communicated?

The Supreme Court in Humanitarian Law Project emphasised, as had the United States government in defending the "material support" statute, that the law does not make it a crime to engage in "independent advocacy" in support of a designated organisation's cause. Writing for the majority, Chief Justice John Roberts strongly implied that this limitation was constitutionally mandated:

"The Court also finds it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups."

"Under the material-support statute," the Court insisted, people "may say anything they wish on any topic." But apparently not on "jihad". The prosecutor in Mehanna's case argued that the translation was motivated by Mehanna's ideological support of jihadism, and of al-Qaeda in particular. But without coordination, and without delivery of the final product to al-Qaeda or any of its known affiliates, it looks like nothing more than "independent advocacy", activity that the government said would not, and the Supreme Court implied could not, be punished.

Why should those of us who have no interest in reading "39 Ways to Serve and Participate in Jihad" care? For the same reason that we should care about the prosecution of a Klansman or an anarchist for their speech. History shows that free speech is fundamental to a robust democracy, and that if the government can punish expression because of its political content, it will use that power to go after its enemies. Today's enemy may be anyone who shows sympathy with jihadism, but who knows who tomorrow's enemy will be. You don't need 39 ways to unravel democracy; giving the government the power to penalise the speech it detests will do it in one.

David Cole is Professor of Law at Georgetown University Law Center. he is the award-winning author of several books, including The Torture Memos: Rationalizing the Unthinkable (2009), Less Safe, Less Free: Why America is Losing the War on Terror (with Jules Lobel 2007) and Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (2003).

A version of this article first appeared in the New York Review of Books blog.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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