Equating Terrorism and Bubonic Plague: Bad for Counterterrorism, Bad for the Constitution

If I were Al Qaeda’s director of propaganda and managed to infiltrate an agent into the American judiciary, I’d want him to exaggerate the terrorist threat and then leverage that exaggeration to justify taking chunks out of the Constitution. So it’s both surprising and sad to see Judge Bruce Selya’s First Circuit Court of Appeals opinion in the case of U.S. v. Mehanna, handed down last week start with this: “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.”

Wikipedia says the bubonic plague killed about 25 million people, or 30-60% of the European population in the 14th century. International terrorism since September 10, 2001 has killed about 0.000009% of the American population. Even if 21st century American apples are not the same as 14th century European oranges, I say “Osama, you’re no bubonic plague.”

The important difference is not merely the numbers. It’s the purpose. Epidemics, unlike, say genocide, are not usually the fulfillment of a political or social agenda. But even genocide is a bad analogy because terrorism is not about the body count; it’s about spreading terror – impressing the observers. And it is in that respect that Judge Selya’s over-the-top comparison plays directly into the hands of real terrorists, providing a priceless multiplier effect to their conduct.

Judge Selya unintentionally gives a boost to terrorism not only by exaggerating the terrorist threat, but most ironically, in a decision where he gets really tough on the crime of material support to terrorism – so tough that, as per another page of the Al Qaeda playbook, he sacrifices a good chunk of the U.S. Constitution’s due process protection.

Tarek Mehanna, a 30-year-old American pharmacist raised outside of Boston, was found guilty last December of material support for terrorism based on several distinct activities. One of the government’s theories involved his allegedly posting Al Qaeda propaganda material online, which implicates freedom of speech under the First Amendment. Another theory was that he tried but failed to join a militant training camp during a two-week trip to Yemen in 2004. Per the government’s request, the jury was allowed to return a general verdict that does not specify the basis for conviction.

There are two things wrong with a general verdict. First, there’s no telling whether the jury was unanimous, as the law requires, on any single theory. Second, given the possibility that Mr. Mehanna was convicted on the basis of his internet activity alone, no one, including the appeals court, knows if constitutional rights might have been violated.

The First Circuit says it doesn’t matter, since the evidence related to the Yemen trip was enough to sustain a conviction. But that’s a perversion of the appellate function. Appeals are not supposed to substitute the judgment of judges who didn’t hear the evidence for that of the jurors who did. On the contrary, it is well established that appeals courts should defer to trial courts’ determinations of fact. Appeals are for reviewing whether convictions are supported by sufficient evidence and are in compliance with applicable law.

The Court may have sidestepped the First Amendment issue, as Marty Lederman notes here, but that doesn’t mean the outcome won’t have serious First Amendment implications, possibly to Mr. Mehanna (we’ll never know) and surely by way of chilling effect on us all thereafter. The chill is not just on those who blog from the safety of their living rooms. There’s a whole world of humanitarian actors on the front lines of conflict zones, whose life-sustaining activities are squelched by the real fear of criminal prosecution for “material support” of terrorism. And who’s there to fill the void? The very same terrorist organizations with which humanitarians must now fear to interact, since rebel groups that hold territory are often listed by the United States as terrorist organizations. While the Mehannacase is not the boldest attack on First Amendment protections in the name of counterterrorism – that distinction goes to the Supreme Court’s Holder v. Humanitarian Law Project decision – it is now the most far-reaching.

In contrast to Judge Selya’s alarmist salvo, it’s worth returning to Federal District Judge William S. Young’s sentencing of Richard Reid, the Al Qaeda operative who tried unsuccessfully in December of 2001 to bring down an airplane with a bomb in his shoe. Judge Young’s now iconic statement hits on all cylinders of what’s so wrong with the Mehanna decision and opinion:
“Now, let me explain this to you. We are not afraid of you or any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is too much war talk here and I say that to everyone with the utmost respect. Here in this court, we deal with individuals as individuals and care for individuals as individuals. As human beings, we reach out for justice.

“You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier, gives you far too much stature. Whether the officers of government do it or your attorney does it, or if you think you are a soldier, you are not—–, you are a terrorist. And we do not negotiate with terrorists. We do not meet with terrorists. We do not sign documents with terrorists. We hunt them down one by one and bring them to justice.

“It seems to me you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom … It is for freedom’s sake that your lawyers are striving so vigorously on your behalf, have filed appeals, will go on in their representation of you before other judges.

“We Americans are all about freedom. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.”

Perhaps the evidence against Mr. Mehanna was more than enough to sustain a conviction, perhaps not. And perhaps the instructions to the jury on the First Amendment issues were fine, as Peter Marguiles argues here, or perhaps not. But the problem remains that no one knows what conduct led to the conviction. That’s a blow to both due process and freedom of speech. And that’s just fine with Al Qaeda.

  

About the Author(s)

Gabor Rona

Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School