When All Speech is Serious and Meaningful
Prosecutions of American Muslims under the Material Support for Terror Statute
While First Amendment concerns loomed large in the Elonis case, with the Court reticent to limit speech or punish those engaging in it, the reverse is true for cases brought under the Material Support for Terror Statute, 18 USC 2339A through C, which criminalizes the provision of resources, training, or expertise to any of the groups listed as “terror organizations” by the United States.10 Unlike the Elonis case, where the court expressed an over-arching concern for when accidental or negligent speech could become the basis of criminal liability, no such concern is evident when actions are being considered in relation to a defendant’s intent to provide material support for a terror group.
The landmark case on the question of whether actions or speech on social media platforms (or online speech in general) can constitute material support for terror is Mehanna v. United States (2013). In this case, the defendant, Tarek Mehanna, had posted translations of various Al-Qaeda documents on a website called Tibyan; he had also posted some Al-Qaeda videos on the same site. The site was not itself operated by Al-Qaeda but was a platform where those sympathetic to Al-Qaeda and Salafi/Jihadi perspectives would exchange views.
In Mehanna’s appeal to the First Circuit after his conviction at the trial level, he alleged that his online activities (to the extent that they involved posting and reposting material) were protected speech under the First Amendment11 and hence did not constitute material support for terror. Hearing his appeal, the First Circuit ruled that translations posted online constituted a “service” under the definition of the statute and elided over the First Amendment issue of whether this was protected speech. Citing a portion of a prior US Supreme Court decision in Holder v. Humanitarian Law Project (2010), the First Circuit ruled that Mehanna’s “otherwise-protected speech rises to the level of criminal material support” because the website on which he posted had some connection with Al-Qaeda. This flimsy fact, whose corroboration was based almost entirely on other pro-Al-Qaeda postings on the site, was considered adequate proof of “co-ordination” between Mehanna and Al-Qaeda.
The Mehanna decision diluted the First Amendment safeguards that the Holder case had very pointedly insisted upon even in cases under the Material Support for Terrorism Statute and reduced the proof of co-ordination requirement to a mere formality satisfied by the most cursory implication of connection. In Holder, Justice Roberts, writing for the majority, specifically stated: “All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny….We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, § 2339B does not violate the freedom of speech.”
The Supreme Court’s decision in Holder also stipulated that any “independent advocacy” by a person was not necessarily a violation of the Material Support Statute, but it left the juries at the trial level to consider what constituted evidence of co-ordination with a particular terror group. In Mehanna’s case this amounted to a trip to Yemen, where he had searched for but failed to find a terrorist training camp. The First Circuit refused to take seriously the Supreme Court’s admonition that First Amendment concerns had to be taken into account while considering material support (or the fact that in the Holder case the material support in question had included cash payments).
The point of emphasizing the Mehanna decision is that in a country where Islamophobic sentiment runs as high as it does in the United States, judges and, even more pressingly, juries are willing and eager to interpret any online activity as evidence of material support for terrorism by connecting it to what may well be innocuous events, like trips to stores that sell weapons, or landmarks, or any country in the Middle East.12 Constitutional scholar David Cole has criticized the Mehanna decision, pointing out that the test stipulated by the Supreme Court in Holder required both that the speech be provided “to” a terrorist organization and be “coordinated with it” and that the prosecution in the Mehanna case had not satisfied the two requirements. Despite this, Mehanna was sentenced to seventeen and a half years in prison.
Cole also notes that the prosecution in the Mehanna case had failed to satisfy the traditional pre-9/11 test set by the Supreme Court in Brandenburg v. Ohio,13 where the Court said that the First Amendment protected the speech of a Ku Klux Klansman unless the prosecution could show that it “intended and was likely to incite imminent lawless action.” In that case, decided in 1969, the Court found that the Klansman’s statements advocating “revengeance against niggers and Jews” did not constitute adequate incitement.
Foreign Terror Is Criminal; Domestic Terror Is Not
The progression from the pre-9/11 Brandenburg decision to Holder, and then the Mehanna decision, reveals several important developments. While First Amendment protections continue to curb prosecutions under hate crime statutes, with the prevalence of online harassment constituting little provocation for courts to curb speech, the opposite is true in terror cases. Second, the separate category of “foreign terror organization” makes American Muslims who are primarily immigrants vulnerable to being held liable for material support in a way that the domestic nature of other hate groups, such as neo-Nazi and white supremacist organizations, does not. Finally, the incipient suspicion of Muslims and prevalence of Islamophobia among the general American population nearly guarantees that American Muslim defendants will not receive a fair jury trial. This is particularly troubling in consideration of the fact that the test specified in Holder v. Humanitarian Law Project as the basis for determining whether an act constitutes material support requires juries to determine whether there was “co-ordination” with a particular terror group. The double standard hence created permits an act to be considered incidental, negligent, or protected by the First Amendment in the case of a non-Muslim plaintiff like Elonis, but enough to convict American Muslims under the Material Support for Terrorism Statute.
ISIS and Material Support for Terrorism: How Online Actions Became the Core of Terror Prosecutions
In the past two years, since the rise of the Islamic State of Iraq and Syria (ISIS), much of the counter-terrorism effort within the United States has focused on apprehending existing and potential recruits. Since a good percentage of ISIS recruiting occurs online, it follows that online activities of American Muslims have come under intense scrutiny. According to a report prepared by the Fordham University Center on National Security,14 there have been 101 ISIS-related indictments/cases between June 2014 and July 2016. The vast majority of them, 78 out of 101, involve US citizens who are Muslim, are an average of 20 years of age, and have been charged under the Material Support for Terror Statute. Eighty-nine percent of the cases involved social media, but only a little over half involved “two-way” communication, meaning they involved only the defendant reading or reposting material. In 69 percent of the cases, a significant issue was the defendants’ “consumption” of ISIS messaging, predominantly on social media. Finally, 89 percent of all the cases investigated in the US involved the use of a government agent or informant. In a third of the cases, the FBI had only zeroed in on suspects based on online surveillance of their activities.
The use of government agents and undercover informants in nearly all of the cases involving material support prosecutions is worth lingering on. In late July of 2016, The New York Times published an article calling attention to the increasingly aggressive tactics used by FBI agents under pressure to deliver terror indictments. The court records reviewed by the Times provide a glimpse into how those who may simply be browsing the internet looking at ISIS-related sites are cajoled into actions that would constitute the flimsy proof required under the Material Support Statute. In Rochester, New York, a paid informant drove Emanuel Lutchman, a mentally ill panhandler, to Wal-Mart so that he could purchase a ski mask and weapons for an attack he had allegedly planned to carry out on New Year’s Eve. In North Carolina, an undercover FBI agent pressed another suspect on whether he could carry out acts of terror on behalf of ISIS, saying, “Do you think you can kill?” before handing him a silencer and an AR-15.
If the same kind of scrutiny that is applied to those suspected of sympathies with foreign terror groups were applied to the statements made by Donald Trump or his campaign staffers, they would likely be held guilty of domestic terrorism.
Unlike hate and harassment cases, there seems to be little interest in the sort of considerations that are significant in preventing prosecution of other virtual harassers: the perceived secondary reality of the virtual realm, and the interests of maintaining cyberspace as an essentially “free” realm where unpopular and even extreme views are tolerated in the larger interest of freedom of speech. If the assailant is Muslim and has intentionally or accidentally reposted ISIS materials or communicated with anyone else who may have sympathies for the group, he faces risks of being prosecuted or at the very least put under surveillance, perhaps assigned an agent that may try to wheedle him into more significant acts.
The conviction of Ali Shukri Amin, a teenager from Manassas, Virginia, illustrates just this double standard. In August of 2015, Amin was convicted under the statute of providing material support for terrorism. Amin never undertook any physical act but was convicted primarily on the basis of having maintained a Twitter account, “@Amreekiwitness,” with about 4,000 followers. Seventeen-year old Shukri is the son of a single mom; he lost his placement in a prestigious college prep program due to a severe case of Crohn’s disease. In subsequent days, he made online posts that appeared to provide instructions on how the Bitcoin system could be used to send money to ISIS. In August, 2015, Amin pleaded guilty and was sentenced to 136 months (over eleven years) in prison.
The Georgetown report, “Protecting Pluralism: Ending Islamophobia,” also includes the case of Nicole Valentzas and Asia Siddiqi, two women from Brooklyn who now face terror charges in New York. Once again, the charges stem from online activity--in this case, a poem that one of the women allegedly submitted six years ago to a man who was later affiliated with Al-Qaeda (the organization did not have a publication when Siddiqi allegedly submitted the poem). The poem itself was submitted under a pseudonym, but investigators allege that they heard Siddiqi boast about having it published to others in online communications. Other proof of the women’s nefarious intentions includes checking out a library book on elementary chemistry and an alleged “obsession” with pressure cookers.
An analysis of charges filed against suspects in terror cases reveals both the frequency with which online activity is used not simply as a basis to initiate surveillance (more than half, according to the Georgetown report), but also to obtain convictions under the Material Support for Terrorism Statute. The succession of legal precedent tells the tale of the gradual erosion of First Amendment protections, or their application only in cases where the makers of threats are non-Muslims: the 1969 case of Brandenburg v. Ohio, in which hate speech was considered protected unless there was a direct incitement to violence; the 2010 precedent in Holder v. Humanitarian Law Project, which held that First Amendment protections did not always (but could sometimes) protect those prosecuted under the Material Support for Terrorism Statute and that proof of coordination (as opposed to independent advocacy) had to be found by the jury; the Elonis v. United States case,15 which held that even directly threatening Facebook posts were not actionable and were protected under the First Amendment unless subjective intent to threaten could be proven on the part of the defendant; and Mehanna v. United States, in which the question of First Amendment protections for online speech in relation to support for terror were discarded entirely and coordination could be proven with scanty evidence.
Domestic Terrorism Is Not a Crime
On June 17, 2015, Dylann Roof walked into the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, and opened fire, killing nine worshippers. Roof’s trial has been scheduled for early 2017. Roof has been charged with nine counts of murder, three counts of attempted murder, and several counts under the Federal hate crime statute. A New York Times story published days after the shooting reported that Roof was a committed white supremacist whose manifesto criticizing blacks as inferior was posted on his website. In the manifesto, Roof says: “I am not in the position to, alone, go into the ghetto and fight. I chose Charleston because it is [the] most historic city in my state, and at one time had the highest ratio of blacks to Whites in the country. We have no skinheads, no real KKK, no one doing anything but talking on the internet. Well someone has to have the bravery to take it to the real world, and I guess that has to be me.” According to court filings by the prosecution, Roof’s actions were “consistent with the concept of leaderless resistance and martyrdom advocated by white supremacist extremist groups and self-radicalization leading to violence.”
As Roof says, “talking on the internet” is something white supremacists, including those with leanings toward mass murder, are doing; it is not, however, something that is currently punishable under US law. According to the Times report, Roof’s website was registered and operative since February 9, 2015, several months before he actually committed his violent acts. However, unlike would-be ISIS operatives who can be apprehended for tweeting or visiting ISIS-related websites, those who propagate other forms of hatred, such as racist murder and extermination of minorities, cannot be similarly charged. This is because while the existence of the Material Support for Terrorism Statute permits pre-emptive policing where it concerns potential acts of terror, no such equivalent exists in relation to hate crimes.
It is the language of the Material Support for Terror Statute that permits certain acts in collusion with certain kinds of terror groups to be criminal while expiating others. The definition of “terror organization” under the Material Support Statute refers back to the definition outlined in the Immigration and Nationality Act (INA), Section 219, which in part A(1) a requires that any such organization be a “foreign” organization. In simple terms, an organization that is domestic but nevertheless purports hatred and advocates killing of Muslims or minorities or abortion doctors is absolved from scrutiny or prosecution simply because it is not a foreign organization and hence cannot be called a terror organization under the Material Support for Terror Statute.
The unequal legal regimes that punish online activities in support of foreign terror organizations as material support but permit online activities including the consumption of hate propaganda generated within the United States should trouble everyone. According to Assistant Attorney General John Carlin, who oversees National Security at the Justice department, “in the past few years, more Americans have died at the hands of domestic extremists instead of international terror groups.”16 Carlin notes that the inordinate focus on international terror has meant that a threat more pressing has been ignored. He also states that “domestic terrorism” is not an offense or a charge under US law, which means that domestic terrorists have to be prosecuted under other laws such as possession of firearms, possession of explosives, etc.
The importance of Carlin’s statements, which were made while announcing a new position “Domestic Terrorism Counsel” at the Department of Justice, cannot be underscored enough. Despite the more pressing threat of domestic terrorism, and the fact that it is more likely to target religious and racial minorities both online and offline, there is currently no specific legislation in place under which domestic terrorism can be prosecuted even when actual acts are committed. Even more troubling is that online activity preceding these acts that inspires hatred and promotes violence is not prosecuted under any legislation and largely enjoys the umbrella of protected speech under the First Amendment.
So while the Material Support for Terrorism Statute permits scrutiny, surveillance, and charges against American Muslims even if they are only looking, tweeting, or consuming materials associated with a foreign terrorist organization, the online activities of domestic terrorists who have in, the words of Assistant Attorney General Carlin, killed more Americans than ISIS are deemed entirely permissible. The sort of pre-emptive policing considered necessary and justifiable in the name of national security, when it comes to pinpointing those that may have sympathies with foreign terrorist organization, are considered entirely unnecessary when it comes to the acts of domestic terrorists who can freely post racist propaganda, issue threats of violence and rape, and purport the elimination of Muslims, African-Americans, and others, without any fear of prosecution.