39 Ways to Limit Free Speech

More evidence for Danner's claim about our state of exception.

39 Ways to Limit Free Speech

David Cole

Sudbury Police Department

Tarek Mehanna

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 seventeen 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 organizations and scholars routinely translate and publicize 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 traveled 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. After a two-month trial, he was convicted of conspiring to provide material support to a terrorist organization. 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 penalize 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 organization.”

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 organization.” (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 criminalize such advocacy of peaceful nonviolent activity without transgressing the First Amendment, because, it reasoned, any aid to a foreign terrorist organization might ultimately support illegal ends.

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 emphasized, 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 organization’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 penalize the speech it detests will do it in one.

April 19, 2012, 3:15 p.m.

Just this one breath, just this one exhale

I was looking back over Lidless and I was rereading the parts where Rhriannon says, "Just this one breath, just this one exhale, just this one breath, just this one exhale... I want this, I love this, I'm happy." It is the very first lines of the play and the very last lines she says before she dies. In the beginning we are not just what we mean and where they come from. Later on in the play, we find out that Bashir teaches Rhiannon to tell this to herself when she is dealing with her asthma, the suffocating disease that ended her life. I think there could be an interesting correlation made here between Bashir and Rhiannon. We know that Rhiannon is the product of her mother's decision to rape her detainee at Gitmo. Bashir plausibly could have gone through other types of torture at Gitmo such as waterboarding. I say this because of the reference to the sound of ocean waves in the very beginning of the play after Rhiannon's line, "Just this one breath, just this one exhale..." Bashir could have told himself, "I want this, I love this, I 'm happy" as was being tortured, or water boarded, to physically make it through. I would argue that it saved him physically, but killed him mentally. (When his daughter comes to visit him, he told her that she had lost her dad back at Gitmo.) Bashir then passes his technique onto Rhiannon when he learns of her asthma. At the end of the play Rhiannon doesn't die mentally, but physically. Just as Bashir died mentally from torture at Gitmo, Rhiannon died physically from the torture of asthma.

Just food for thought and potential discussion. Let me know if I am way out there with this...

How To Chronicle a Tragedy...Appropriately.

After hearing Ana’s presentation, I became fascinated with the idea of an online memorial. I had never thought that something like this website could exist, but with the increase in technology, it makes total sense. What struck me most about the website is how personal it is; our neighbors and fellow Americans can share their stories with the rest of the world. Unlike other memorials, this website isn’t just names carved into a wall—it consists of real people telling real stories about their personal experiences with the tragedy.

I wanted to look a little more into the ways in which the website is monitored. Since it can be edited by nearly anybody, I was wondering what sort of guidelines the website offered and how much opportunity there was for somebody to add every aspect of their story. On the website’s Community Guidelines page, I found the following rules:

WHAT TO DO

Be accurate and honest.

We are most interested in what you personally experienced.

Be appropriate.

This event and subject matter demand a certain dignity. Given the intensity of the event, some strong language may be appropriate in certain stories. But consider that this site will be used by people of all ages.

Be respectful of fellow community members.

Many stories on this site come from people who lost someone on 9/11. Please treat other users politely and respectfully. 

WHAT NOT TO DO

Don’t lie.

Say what matters, and we are trusting you to be honest. Don’t edit videos or images in a misleading way.

Don’t rant.

9/11 is a contentious subject, and we encourage people to participate in online and offline conversations devoted to 9/11’s causes and ramifications. This particular site, however, is not designed to support such conversations.

Don’t troll of harass.

Even if you disagree with someone, abusive or threatening behavior will not be tolerated and will result in banning.

These were some of the more interesting guidelines, in my opinion. I was happy to see that the site was taking some amount of action in keeping the site a respectful place. However, I still wonder how monitored the site actually is. I wonder how easy it would be for somebody malicious to post something—and not just something, but something hateful.

I think that an online memorial is a great idea; it’s an easy way for people to share their feelings, and it gives people access to unlimited reflection on a tragedy. However, I question the morality behind the site; I could see somebody abusing the privilege to reach thousands or millions of people still in despair.

Additionally, I wanted to ask the class: do you think there are any difficulties with the guidelines provided? Do you think any should be removed? Added?

Muslims treated like Jews?

This video is very striking! I found it while doing some research on my special project, and would like to hear my classmates' opinions on this.
I think the comaprison is rather extreme and to a certain extend appropriate ?

http://www.youtube.com/watch?v=p5uwjR8tQyY

Significance of the heartbeat

I am happy that as class we were able to read a play. Compared to the novels and other poems we have read in class, I realized the benefit the play out loud in class. Similar to a speech, the audience gets more out of the reading of the play if it is acted out or simply read aloud with other characters.

A dramatic portion of the play that I would like to focus some attention to is the idea of the subtle beats that are found throughout the play. An example would be in the first scene when Alice is degrading Bashir, in the second scene:

RHIANNON My gut. (Beat.) But my questions won’t work. If I want to understand someone, I need to dress like them, walk like them, talk like them. I need to  become them.

And in the third scene:

Bashir: I used to have Asthma

Rhiannon: (beat)  How’d you make it stop?

The beat can have many different meanings. It can be a signal to an audience about some type of foreshadowing. When there is important dialogue that beat occurs calling all audience members to pay attention.  It can also be a reminder of what it is to be human.

In the play as a torturer, Alice dehumanizes Bashir. She treats him like an object, an alien with no feelings. The beat in the play throughout the the dialogue the heart beat sound remind everyone we share humanity. The dignity of the human person is remembered through the heart beat.

I also think the heartbeat could be one individual person. For this reason I believe it the heartbeat of Rhiannon. She is the character that connects all the others through love. Obviously her parents love her, Riva loves her, and there is a special bond between her and Bashir. The heartbeat adds a dramatic effect to the play. An uncertain sound, an uneasy reminder, and a leveling medium.

Imagine: Invasion of Space by Male

After acting out the first scene of Lidless in class, I realized how graphic the actions and the dialogue truly are. I wanted to explore the dynamic of the Invasion of Space by Female act and explore the opposite: Invasion of Space by Male. First, before I dive into my whole spiel on double standards, I wanted to outline some of the more graphic parts. As you reread these parts of the play, switch the gender roles (and body parts) where necessary. Imagine a man saying these things to a woman. Then, after we can picture the flipside of this act, we can decide the morality—or lack thereof—behind the entire idea.

Here are some of the more graphic parts of the first scene:

ALICE   I’m touching myself. My fingers trail up my thigh as I think of all our bodies could do. I could sink onto your hard, hot cock. I could bury my face in your neck. You could hold me. You could move me. You could help me find light and redemption and peace.

And again:

ALICE   What’s the matter, Mo? Is the great Islamic sword too weary to rise today? (Beat.)Holy mother. Looks like I found your sweet spot. Right here. An inch beneath your left ear. Jesus. I could hang Old Glory on that pole. I’ve been wasting my time on white boys. It appears those rumors about Asian men are lies your ladies tell to keep you to themselves. Selfish bitches.

And again:

ALICE   Oh. I forgot to tell you, I’m bleeding, and there’s nothing shielding you from my twenty-five-year-old cunt, just red, red, red, staining skin already caked pus white and blue with bruises, making you the color of the flag I’ve sworn to protect.

Obviously, a gender reversal in for this scene seems absurd, disgusting, and beyond publication. If Frances Ya-Chu Cowhig had fictionalized the rape of a woman in this same manner, she may not have gotten the rights to publish it or the acknowledgement of her work. While that might seem extreme, the rape of women is a huge issue throughout the world today; however, the rape of men doesn’t seem so prevalent, so hearing something like this doesn’t seem so awful.

When I talked to some of my friends about this first scene, a lot of them seemed disbelieving. For them, they didn’t really understand how a woman can rape a man. They said, “If a man is not willing, then it won’t really work.” However, this type of mentality holds the same weight as the people who claim that certain women “ask for” rape by the way that they dress and their overall attitudes. This thinking perpetuates a double standard. If it doesn’t work for one gender, it shouldn’t be okay for the other.

Rape is a serious issue, and I think that, while Cowhig brings light to that, she does so in a very dangerous way. A simple imagining of role reversal borders on extremely inappropriate and offensive text. Do you guys agree or disagree?

Loss of Innocence in Extremely Loud and Incredibly Close

I know it’s been about a week since we finished Extremely Loud and Incredibly Close, but I realized there was one major theme in the book that we didn’t spend too much time on. That theme was the loss of innocence, experienced by Oskar.
Throughout the novel, Oskar puts pictures in his book called “Things that happened to me”. The images in that scrapbook showed terrible horrendous things, both dealing with 9/11 (the falling man) and other things throughout his life (Hamlet, Stephen Hawking, etc.). Not only would it be terrible for a kid to compare himself to a tragic hero like Hamlet, but he also thinks about other sad and scary things throughout the day. A number of times in the novel Oskar points out things he knows, or things he knows but that he wishes he didn’t. Oskar is presented as a boy who knows a lot, especially things a boy his age shouldn’t know.
So this got me thinking about my own 9/11 experience and how it could’ve affected my innocence. In my case, however, I wasn’t as exposed to the violence and destruction of 9/11. At my school, we weren’t told about the attacks during the school day, even though we weren’t allowed to go outside for recess on that clear day. My parents didn’t explain much to me. Even though the TV was constantly tuned to the news channel, I didn’t pay much attention. My 9/11 education occurred much later than for Oskar. Do you think this was the right way to handle the situation, instead of being thrust into the grown-up world like Oskar? Is this how 9/11 was handled for you? What’re your thoughts on the subject, if you were a little older than I was at the time?