Breaking news from the Supreme Court!

No, not that news (although it is rather shocking). The Court also denied certiorari this morning in two other cases that had received some attention in national security circles:  Mehanna v. United States, No, 13-1125, and Ali v. Obama, No. 13-10450. Neither denial is at all surprising.

Mehanna

The petition in Mehanna asked the potentially very important question of what showing the government has to make of a speaker’s “coordination” with a terrorist organization in order to prosecute the speaker for posting advocacy of jihad on the Internet.  As I explained last November, however, the court of appeals avoided any decision on that First Amendment question, because it concluded that the jury’s verdict was supported by evidence relating to an incident that occurred before Mehanna’s Internet activities — namely, his travel to Yemen in 2004, where he unsuccessfully searched for a jihadist training camp at which he could learn how to fight against the U.S. in Iraq.  The court of appeals concluded that the evidence entitled the jury to find that the Yemen trip constituted an effort by Mehanna to provide material support to a terrorist organization, and that therefore there was no need to consider whether the verdict was constitutional if it happened to be based on the Internet activities, which were a large part of the government’s case-in-chief.  The court reasoned as follows:

[W]e have no occasion to examine the factual sufficiency of [the translation/advocacy] activities as a basis for his terrorism-related convictions.  Even if the government’s translation-as-material-support theory were factually insufficient, we would not reverse: the defendant’s convictions on the affected counts are independently supported by the mass of evidence surrounding the Yemen trip and, under Griffin [v. United States, 502 U.S. 46 (1991)], we need go no further.

By eliminating Mehanna’s Internet activities altogether from the issues decided on appeal, the court of appeals thereby ensured that Mehanna will not be the important First Amendment precedent that many had thought it might be.

In light of that, the best chance Mehanna’s lawyers might have had for a grant of certiorari would have been to argue that the First Amendment requires an exception to the Griffin “alternative possible factual bases for the jury’s verdict” doctrine.  Counsel did not press such an argument, however (and to be fair, it’s not at all certain such an argument would have attracted four votes to grant).  The denial of the petition today, then, is not very significant:  It ought to have very little, if any, impact on the question of when advocacy of terrorism on the Internet is constitutionally protected.

Ali

As I explained back in August, Ali is a GTMO habeas case that might have raised a very interesting and potentially important question regarding the government’s authority to militarily detain until the end of hostilities a member of an armed force that is alleged to have been “associated” with al Qaeda.  The government’s theory of the case was that Ali was part of an associated force led by Abu Zubaydah.  Zubaydah himself was apprehended along with Ali in March 2002, and it’s not apparent from the public record that any “Zubaydah” force has existed for over a decade.

Ali’s counsel thus might have argued that his detention is unauthorized because Zubaydah’s force no longer exists–or at least does not continue to be a cobelligerent with al Qaeda in an armed conflict with the United States, which is presumably what would be required to justify Ali’s continued detention.  In the habeas proceedings below, however, she apparently did not raise the question of whether the Zubaydah force continues to exist, or to be engaged in an armed conflict with the United States . . . and therefore that question was not raised in the cert. petition, either.

The petition did invoke another interesting question of broader applicability–one that Justice Breyer had raised in his statement respecting denial of certiorari in the case of Hussain v. Obama, namely, “whether the AUMF authorizes, and the Constitution permits, detention on the basis that an individual was part of al Qaeda, or part of the Taliban, but was not ‘engaged in an armed conflict against the United States’ in Afghanistan prior to his capture.”  In an earlier post, I suggested several reasons why I think a majority of Justices are unlikely to hold that the government must prove the detainee’s personal engagement in the armed conflict.  The denial of the petition today supports (but of course does not demonstrate) that the Court is not inclined to support that argument, which might potentially implicate the cases of many GTMO detainees. 

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About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).