Cassandra on Civil Liberties in the Age of Terrorist Scares

 

Chicago, IL:  Lake Michigan 5/18/13
Chicago, IL: Lake Michigan 5/18/13

          A civil liberties lawyers is a Cassandra.  Unlike Chicken Little, though, the Trojan prophet’s sky did fall.

           Harvey Silverglate, has served in this role for almost half a century.  The title of his latest book, Three Felonies a Day:  How the Feds Target the Innocent asserts that the Department of Justice has refined the ancient prosecutorial rationale, ‘If we hang ‘em all, we’ll get the guilty.’

           For ‘guilt’ in any sense understandable by an ordinary person – or even a lawyer – has little to do with today’s signature prosecutions.

           In a Nov. 27 Boston Globe op-ed, ‘Terrorisim ruling assaults civil liberties’, Silverglate and his paralegal, Juliana DeVries, describe why pharmacology student Tarek Mehanna, an American living in Sudbury, Mass., will exist for the next 17 years in a Supermax prison with the likes of Whitey Bulger.

           In 2009, at age 27, Mehanna was charged with providing material support to a designated foreign terrorist organization. Here is essentially what he did:  He translated publicly available Arabic texts, including some Al Qaeda materials, into English. He e-mailed friends, downloaded videos, and posted documents online, at times indicating his support for the organization. He bought a round trip ticket to Yemen and traveled there in 2004 on what he characterized as a scholar’s journey.

           Prosecutors argued Mehanna flew to Yemen to find and join a terrorist training camp in order to fight against the United States on behalf of the Iraqis. Mehanna’s attorneys argued that the government targeted him as retaliation for his refusal to become an FBI informant (an offer Mehanna’s former friends and cohorts, turned into prosecution witnesses, found too enticing to decline and who indulged prosecutors with stories of Mehanna’s harsh rhetoric, although no terrorist actions). Regardless of whether Mehanna intended to enroll in a terrorist camp, he failed to find any such facility and returned home to Massachusetts.

           Mehanna wasn’t accused of abetting, much less committing, terrorist acts.  So what violated law earned him 23-hours-a-day for 17 years in a cell the size of a closet?  Silverglate & DeVries continue:

The courts did so by broadly interpreting a recent Supreme Court decision that allows federal prosecutors to bring charges for a wide range of expressive activities that supposedly constitute “material support” to terrorists.

           [T]he Supreme Court … made the Mehanna verdict possible with its 2010 opinion in Humanitarian Law Project v. Holder. The Humanitarian Law Project (HLP), a human rights and peace group, wanted to teach techniques of peaceful dispute resolution to the Kurdistan Workers Party in Turkey and northern Iraq, and the Liberation Tigers of Tamil Eelam, a guerrilla group in Sri Lanka. The State Department has identified both as terrorist organizations.

           The high court ruled that it would constitute criminal material support for any person to use any skill in coordination with any group designated “terrorist” by the government. Thus, a lawyer could be criminally prosecuted for filing a friend-of-the-court brief supporting such a group.

           Hence the witting co-operation of the Federal Courts in facilitating the contemporary version of the ‘Red Scares’ of the 1890s-1910s made Mehanna’s trial a show.  The jury got instructions that made the verdict inevitable.

           The US Court of Appeals for the First Circuit affirmed.  Writing for the court was Judge Bruce M. Selya, a Reagan appointee, who in 2008 Chief Justice Roberts appointed Chief Judge of United States Foreign Intelligence Surveillance Court of Review on which he’d served since 2005.  That court’s defense of the First, Fourth, Fifth and Fourteenth Amendment has not been notable.

           Remember: Mehanna didn’t do anything.  Nonetheless, Judge Selya’s opinion begins:

           Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.  Predictably, then, the government’s efforts to combat terrorism through the enforcement of the criminal laws will be fierce.  Sometimes, those efforts require a court to patrol the fine line between vital national security concerns and forbidden encroachments on constitutionally protected freedoms of speech and association. This is such a case.

          ‘Material support’ cases aren’t limited to Massachusetts Federal courts.  Jeanne Theoharis reported in The Nation for Nov. 25, 2013, on Fahad Hashmi who spent three years in pre-trial solitary confinement and, after pleading guilty, three more (of fifteen imposed) in the ‘Supermax’ in Florence, Colorado.

Fahad had been charged with providing material support for terrorism after he let a friend use his cellphone and stay in his London apartment with luggage containing raincoats, ponchos and socks that the friend later took to an Al Qaeda leader in Pakistan.

           A Cassandra of the Red Scares a hundred years ago, Clarence Darrow, wrote in The Story of My Life (1932):

Men have built faith from hopes. They have struggled and fought in despair. They have frantically clung to life because of the will to live. The best that we can do is to be kindly and helpful toward our friends and fellow passengers who are clinging to the same speck of dirt while we are drifting side by side to our common doom.[1]

 Reading about Mehanna and Hashmi, I find it difficult to be any more optimistic than Darrow in his last years.

           It is to Harvey Silverglate’s credit that he soldiers on in our behalf.

 

Notes

           1.  Clarence Darrow, The Story of My Life [1996] (Scribner’s, 1932), p. 423.

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