Sometimes a judicial opinion buries the lede. Other times a court will signal how the case will go from the first sentence.

Let nobody say that Judge Bruce Selya, Circuit Judge of the United States Court of Appeal for the First Circuit, buried the lede in affirming the federal conviction of Tarek Mehanna:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

The conclusion flows ineluctably from that premise: Tarek Mehanna's conviction for providing material support to Al-Qaeda must be upheld. And so it was yesterday.

But is the premise correct? And for what purpose do courts and government actors bring it to bear?

The Prosecution of Tarek Mehanna

The United States convicted Tarek Mehanna of, among other things, conspiring to provide material support to Al-Qaeda, a designated terrorist group. He was convicted under Title 18, United States Code, Section 2339B:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

What does "material support" mean? It means all of this:

(1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and (3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

This statute has been controversial for two reasons.

First, the United States' process for designating groups as "foreign terrorist organizations" is political, not principled. Last year I described how the United States, for political reasons, de-listed a group years after I convicted a man for aiding it. That issue is not present in this case; Al-Qaeda is a terrorist group by any definition.

Second, the statute has been controversial as applied to "material assistance" that takes the form of advocacy, advice, and other traditional First Amendment activity. A detailed discussion of the law is beyond the scope of this post. At the Volokh Conspiracy, Professor Eugene Volokh has thoroughly explored the implications of leading cases on the subject like Holder v. Humanitarian Law Project. His discussions on the issue are collected here. As he says in one representative post:

I’m still digesting the implications of the majority opinion, but it tentatively strikes me as somewhat troubling: It does allow a content-based restriction on speech by Americans, and while I think it can be limited to speech coordinated with designated foreign terrorist organizations — so that speech that’s independent of those organizations remains protected even if it ends up helping them — (1) that limitation is not as clearly set forth as I’d like, (2) the majority doesn’t say much to justify the constitutional significance of the distinction, and (3) I’m not positive that the distinction is sound (though I’m also not positive it’s unsound).

The government asserted that Tarek Mehanna traveled to Yemen to train to fight American soldiers in support of Al-Qaeda, and that his subsequent activities constituted anti-American and pro-Al-Qaeda propaganda coordinated with Al Qaeda, outside the protection of the First Amendment. You can read the government's version of events in the government's appellate brief, which I've uploaded here.

Mehanna's argument — among others — was that the government only showed that he "translated publicly available al Qaeda propaganda from Arabic to English and that he sought to persuade others to share his extreme ideology," that this activity was protected by the First Amendment, and that the trial court failed to instruct the jury properly about the line between protected speech and prohibited coordination with a terrorist organization. (Opening Brief at 2.) To learn more about his position you can read his opening brief or his reply brief. You could also look at the amicus briefs submitted on his behalf on the First Amendment issue by the ACLU, the Center for Constitutional Rights, or an an association of scholars, translators, and publishers.

How would that argument fare, measured against the an existential threat to America akin to the bubonic plague?

The First Circuit's Opinion Affirming The Conviction

Circuit Judge Selya and the First Circuit rejected Mehanna's First Amendment arguments in their opinion. Ultimately the court evaded the fundamental question of whether Mehanna's translation and advocacy was outside the protection of the First Amendment. See, the government also presented evidence that Mehanna went to Yemen to train up to help Al Qaeda, and that activity was sufficient to violate the statute. So even though the government decided to present extensive evidence about Mehanna's advocacy, and argue to the jury it constituted material assistance, the First Circuit decided it just didn't matter:

It is pointless to speak in the abstract of a verdict predicated on protected conduct. The Court of Appeals is not a sorting hat, divining which criminal defendants' stories fall into constitutionally protected and unprotected stacks. Cf. J.K. Rowling, Harry Potter and the Sorcerer's Stone 113-22 (1997). Instead, an appellate court's role is to discern what, if any, errors marred the trial below. This inquiry requires us to focus on the relevant actors in the trial and not to engage in an untethered academic analysis of the verdict itself. Personification has its limits. Verdicts, not being sentient, cannot err on their own; rather, any errors in a verdict come from the actors who have contributed to it. For example, a trial judge can commit error by instructing the jury that it can convict a defendant for wholly legal conduct. See, e.g., United States v. Tobin, 480 F.3d 53, 56-58 (1st Cir. 2007). By the same

token, jurors can err by returning a guilty verdict that is unsupported by legally sufficient evidence. See, e.g., United States v. Valerio, 48 F.3d 58, 63-65 (1st Cir. 1995). When it comes to the argument that the defendant makes here — that one of two possible grounds for the general verdict is suspect — the classification of the specific error makes all the difference. If "a mistake about the law" underlies the argument, reversal may be necessary. Griffin v. United States, 502 U.S. 46, 59 (1991); see Yates v. United States, 354 U.S. 298, 312 (1957); Stromberg v. California, 283 U.S. 359, 367-68 (1931). Such a "legal error" occurs, for instance, when "jurors have been left the option of relying upon a legally inadequate theory" by the trial court's charge. Griffin, 502 U.S. at 59. If, however, "a mistake concerning the weight or the factual import of the evidence" underlies the argument, the verdict must be upheld as long as the evidence is adequate to support one of the government's alternative theories of guilt. Id.

Put another way: it doesn't matter if Mehanna's advocacy was protected by the First Amendment, and it doesn't matter if the government cited and relied on that advocacy, because the government also presented evidence of a train-to-kill-Americans trip to Yemen, and that evidence was sufficient to show a violation of the statute as an alternative theory.

The court also rejected Mehanna's argument that the trial court didn't adequately explain the line between protected advocacy and prohibited coordination with terrorist groups:

In sum, the district court's instructions captured the essence of the controlling decision in HLP, where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is "in coordination with foreign groups that the speaker knows to be terrorist

organizations." Id. at 2723. If speech fits within this taxonomy, it is not protected. See id. at 2722-26. This means that "advocacy performed in coordination with, or at the direction of," an FTO is not shielded by the First Amendment. Id. at 2722. The district court's instructions tracked the contours of this legal framework.

Prof. Volokh ties this to his previous discussion of the "coordination" exception to the First Amendment.

Judge Selya's Frame, And The True Existential Threat To America

This is an important First Amendment decision — or, perhaps, an important refusal to decide — and it deserves a thorough and thoughtful First Amendment critique. But I'm not going to give it in this post. Instead, I'll return to the way Judge Selya chose to frame the case, from the very first sentence of his opinion:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

That frame determines the outcome of this or any other case; it renders any analysis I might offer irrelevant. It is a justification for any prosecution, any conviction, any infringement of speech, any interception of phone calls or emails, any warrantless search, any torture in a dank cement room.

But is it true?

No.

An existential threat is one that threatens our very existence as a nation. The bubonic plague, Judge Selya's reference point for the threat of terrorism, killed a third of the population of Europe.

Does terrorism threaten our existence? No. Terrorism threatens a horrific loss of life. But our nation endures it. The 9/11 attacks killed 3,000 people. Those deaths were tragic. But our nation endures — as surely as it endures with more than 30,000 traffic fatalities per year, or some vast number of smoking-related deaths per year, or more than 15,000 homicides per year. Traffic deaths and smoking deaths and murders don't get called "existential threats," don't get compared to the bubonic plague, and don't get cited in the lede of a case upholding a conviction premised in part on advocacy. Nor do, for instance, police shootings — even though you are eight times more likely to be killed by a cop than by a terrorist in America.

Is terrorism an economic threat to our nation? Sure. But not, by itself, an existential one. 9/11 cost us $3.3 trillion — but only about $200 billion of that was about the direct harm the terrorists did to us. The rest — the cost of war and policing ourselves — is about our reaction to terrorism, not terrorism itself.

America is not a set of currently living humans, or currently standing buildings, or currently peaceful patches of land. America is a set of ideas that inspire and unite us even through adversity and bitter disagreement. Those ideas include a voice in our governance, freedom of thought and worship and speech, the rule of law, and freedom from unreasonable and unrestricted government intrusion. Terrorists cannot themselves pose an existential threat to America because they cannot themselves alter those values. But we can abandon those values in response to the fear of terrorism. We can allow terrorism to become what I call an "airhorn issue" signalling an end to discussion or questioning of the government, or what another court called a "skeleton key": "However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution." We can let the threat of terrorism — as we have too often let the threat of drugs — convince us to tolerate any indignity, any violation, any intrusion, any limitation upon us by our government. That would threaten the existence of America as we know it.

Terrorism is not an existential threat to America. Americans afraid of terrorism are. A judiciary that believes otherwise is suspect and cannot be counted upon to protect our rights.

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