"While Vile, All of This Speech Is Protected by the First Amendment"
Widespread surveillance and suspicion aren't the only things American Muslims have to worry about, feel frustrated by, or fear. They can also point to the way fellow American Muslims are treated in the larger criminal justice system.
Since 9/11, the FBI has used tactics that clearly raise the issue of entrapment in arresting hundreds of Muslims inside the US on terrorism-related charges. Investigative journalist Trevor Aaronson, author of The Terror Factory: Inside the FBI's Manufactured War on Terrorism, did the hard work of compiling and analyzing all of these cases between September 11, 2001, and August 2011. What he found was alarming.
"Of the 508 defendants, 243 had been targeted through an FBI informant, 158 had been caught in an FBI terrorism sting, and 49 had encountered an agent provocateur. Most of the people who didn't face off against an informant weren't directly involved with terrorism at all, but were instead Category II offenders, small-time criminals with distant links to terrorists overseas. Seventy-two of these Category II offenders had been charged with making false statements, while 121 had been prosecuted for immigration violations. Of the 508 cases, I could count on one hand the number of actual terrorists... who posed a direct and immediate threat to the United States."
Those numbers, however damning, still don't fully reflect the inequity American Muslims face within the US criminal justice system when it comes to terrorism allegations. An analysis of two separate but similar cases offers a clear sense of how terrorism allegations targeting the American right and American Muslims in the criminal justice system can end with very different results. The common question running through two federal terrorism prosecutions—one against a group of seven anti-government right-wing Christian paranoids, better known as the Hutaree Militia, and the other against a Massachusetts pharmacist and Islamic radical—is what kind of speech is protected by the First Amendment and just who can rest safely under its shield?
In late March 2010, FBI raids led to the arrest of members of the Hutaree Militia across the Midwest. A Christian Patriot militia, Hutaree members believed that the end of the world was near and local, state, and federal law enforcement officers were actually "foot soldiers" in the "New World Order." According to the federal indictment, Hutaree leader David Brian Stone, Sr., planned the murder of a local police officer. But that was just to be the bait. When law enforcement from across the nation attended his burial, the Hutaree would attack the funeral procession with improvised explosive devices and other homemade bombs, sparking a revolt against the government.
Seven Hutaree members were charged with at least four felonies, including seditious conspiracy and conspiracy to use weapons of mass destruction. Like many post-9/11 counterterrorism investigations, the case was built via an undercover FBI agent, primarily by using the violent, antigovernment statements some of the accused made as proof that a terrorist conspiracy existed. The defendants all filed motions for a judgment of acquittal, arguing that the government didn't have enough evidence to sustain a conviction.
In March 2012, Judge Victoria Roberts agreed with the motions of the defendants, acquitting all seven on the most serious charges. (David Stone, Sr., and his son were convicted of weapons-related offenses and were sentenced to time served.) Read Roberts's decision and it's hard to disagree with her ruling, which concludes that the plot was all talk among paranoid people.
Referring to Stone Sr.'s anti-government statements, Roberts writes, "While vile, all of this speech is protected by the First Amendment." Ultimately, Roberts concluded, the government's case was far too flimsy. "[T]he plethora of inferences the Government asks this Court to make are in excess of what the law allows," she wrote. "But the Government crosses the line from inference to pure speculation a number of times in this case. Charges built on speculation cannot be sustained."
Can anyone doubt, however, that if David Stone, Sr., had an Islamic-sounding name, he, his two sons, and the four other codefendants would likely be spending the rest of their lives in a federal penitentiary?
Does the First Amendment Have a Blind Spot for Muslims?
Consider the case of 29-year-old Tarek Mehanna. In April 2012, he was convicted of conspiracy to provide material support to al-Qaeda, providing material support to terrorists, conspiracy to commit murder in a foreign country, and lesser charges like lying to the FBI.
According to the federal government's case, Mehanna and two associates went to a terrorist training camp in Yemen in 2004 with the intention of later making their way to Iraq to resist the US occupation of that country. Mehanna countered that he went to Yemen to study Islam and learn Arabic. Whatever Mehanna intended, we know that, in fact, he never made it to any terrorist training camp.
That, however, wasn't the alleged "crime" the FBI was most interested in. On his return from Yemen, Mehanna began translating into English and posting jihadist videos and documents on the Internet advocating that Muslims defend their lands against American imperialism. One video was particularly gruesome. It showed the mutilation of the remains of US personnel in Iraq after the reported rape of an Iraqi girl by an American service member. After watching it, an associate asked Mehanna whether there was a way to try the US serviceman suspected of the crime. Mehanna replied, "Who cares? Texas BBQ is the way to go."
However grotesque or cruel Mehanna's Internet activity or talk may have been, it all constituted First-Amendment protected activity. The government, however, argued that Mehanna's online activities materially supported al-Qaeda, even though Mehanna was known to have rejected al-Qaeda's worldview. He did not, among other things, believe civilians should be targeted in response to the actions of their government abroad. His belief was clear enough: "Those who fight Muslims may be fought, not those who have the same nationality as those who fight."
The distinction didn't matter. Mehanna is currently serving a 17½-year sentence in a federal supermax prison. His thought crime: engaging in the same kind of violent but constitutionally-protected online advocacy regularly engaged in by white supremacists and anti-government militias on the radical Right.
That, to say the least, is the benefit of the doubt American Muslims cannot take for granted in the United States more than a decade after 9/11. White Christians rarely have to worry that an informant or undercover agent has infiltrated their churches, their neighborhoods, or their student groups. They never have to fear someone watching them and taking notes. They never have to question whether the new person who seems so friendly may be just a little too friendly, just a little too provocative. They don't have to think twice before they say or post online something political, controversial, or even violently angry. None of this is their responsibility, their burden in life, just because some random person within their community lashes out in the name of God. And that's how it should be, for everyone.
Matthew Harwood is a freelance writer, whose work has been published by the American Conservative, Columbia Journalism Review, the Guardian, Guernica, Reason, Salon, Truthout, and the Washington Monthly. He also regularly reviews books for the Future of Freedom Foundation. He works as a media strategist at the American Civil Liberties Union in Washington, D.C. Naturally, his opinions are his own. Follow him on Twitter at @mharwood31.
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