Posted by Brad @ 4:51 pm on April 18th 2012

A Letter to Andrew Sullivan regarding Tarek Mehanna

Glenn Greenwald had a great post up the other day about having met a number of people who really illustrate the lawlessness of the War on Terror and police state in this country. One such case is Tarek Mehanna, who was just sentenced to 17 years in federal prison basically for translating and promoting terrorist speech. Right now, there are also pushes, in Britain for instance, to criminalize the visiting of “terrorist websites” and the like, so this kind of thing is not altogether uncommon.

But what I found interesting is that Andrew Sullivan highlighted Greenwald’s post, the case of Mehanna, and a few reactions to it (including from Ross Caputi, who also sympathizes with Arabs and Afghanis trying to kill American military invading their home countries). He didn’t add his own thoughts, so I was spurred to email him, and thought I’d share.

Just out of curiosity Andrew, had either Tarek Mehanna or Ross Caputi traveled to Yemen or some remote area of Montana where catching them would be hard, and then set up their computers there, engaging in precisely the same sort of stuff mentioned in your post, would you have supported the United States military assassinating them summarily and without charge?

Because I can’t really reckon how the behavior they engaged in is of a different kind than the behavior that got Al-Awlaki murder-bombed. It seems to me, from a worldview that determined that Al-Awlaki’s behavior was not only a capital offense, but one that could be determined as such without due process, transparency, or review, Caputi and Mehanna have forfeited their rights both to due process and life. In your defense of Obama’s decision to summarily execute Al-Awlaki, I never heard you once use, as justification, any presumption that he himself had ever committed violence, but rather you tend to append a lot of words like “supported”, “advocated”, “called for”, and other such phrases that seem to indicate speech as the vehicle. So clearly, there’s a level of speech that you believe to be not only outside the limits of free speech, but outside the limits of the entire American system of justice or the Western World’s conception of natural rights (like, you know, living). You didn’t editorialize much in your post here, so maybe you believe that or maybe you don’t, I’ve no idea. But I wonder if you can explain your distinction, if you think there is one? Moreover, I wonder if you can explain how that distinction should be translated into rules of engagement and given the force of law?

Unrelated, but in Philadelphia last week, a guy on Broad Street hit a university student with his car, then fled the scene, plowing into a few other cars, one of which was unmarked police. He bailed several hundred yards down the road and took off on foot. An officer cornered him, and he yelled to her “Step back or I’ll blow your head off!” He didn’t have a gun in his hand, of course, and even the officer didn’t assert that she thought he had one or that he was reaching for anything. Nevertheless, that “Step back or I’ll blow your head off!” was justification for her to pull out her piece and plugging two holes through him, killing him.

There’s no outcry over that, no real review of the justification of lethal force in this instance, and even the officer involved didn’t try to drum it up as her being fearful of her life or having no other choice. Dude said it, and that gave her cause to shoot him. The barely implicit assumption here seems to be that just advocating/threatening killing a police officer, in that situation, was for every intent and purpose the same as actually trying to do so. It didn’t even seem to occur to anybody that it might not be. Whether you agree with the officer’s actions or is immaterial—it just strikes me that it doesn’t even really come up for debate.

This is how the corrosion of the rule of law works. Exceptions don’t make rules—they dissolve them. It strikes me that, as it concerns advocating violence against the United States (however you define that—the citizenry is actually not trusted to know or discuss that), we’ve made a very big leap very quickly, and not with a bang, but with a whimper.

Mehanna ought to consider himself lucky. Because if important voices for civil liberties and rule of law like yourself don’t see these distinctions, we’re not very far from a country where he was just taken out back and shot to save us the court costs.

8 Comments »

  1. On the matter of Mehanna himself, one of the dissents to which Sullivan links notes that the charges for which the defendant was sentenced go well beyond nebulous claims about advocacy. The author includes this tidbit:

    In the second half of 2003, Mehanna and an accomplice discussed a plan to obtain automatic weapons, go to a shopping mall, and randomly shoot people, but abandoned the plans when learning that their weapon’s supplier could only provide handguns.

    The author goes on to suggest that observers review the court documents in the case before issuing a Greenwald-style blanket condemnation of the proceedings.

    As a civil libertarian, I think I agree.

    Not relevant to the core point of your post, but worth mentioning.

    Comment by Rojas — 4/18/2012 @ 6:00 pm

  2. Sure – I don’t really have any judgements on Mehanna himself (I know little about him). Although, as a completely separate issue, I’ve been inclined to be a bit cynical about the “19 undercover agents got one half-retarded teenager to think it would be cool to get a rocket launcher and shoot it at the White House” operations.

    But I think it is absolutely true that the mission creep of terrorism laws has gone well beyond “people guilty of violence against civilian targets for political purposes”, to now include native insurgents targeting American military—really any violence done against any American anywhere with any patina of politicalness about it—to domestic wannabes making contact with those native insurgents, to domestic mouthpieces expressing sympathy for said wannabes making contact with those native insurgents, etc. etc. I’m obviously being a bit cheeky in that characterization, but it’s not far off either.

    And I find it curious that, more and more, the distinction between thinking, saying, writing, or potentially doing, and actually, you know actually doing, is becoming less and less relevant both in our social and cultural opinions of this stuff and also in our actual execution of laws (or justice, or whatever you want to call it). We are very close to the criminalization of being thought of as a terrorist, whatever that means. Where the penalty is for the suspicion itself, and the penalty is…well, whatever whoever decides. In practice, in some cases suspicion of being a terrorist leads to charges. In others, suspicion of being a terrorist carries a penalty of death, without appeal, review or charge. Whether a case is one or the other is up to…you know, whoever. Based on whatever grounds suit them.

    And, again, that’s not to romanticize these people. I could not care less—they all strike me as somewhere between complete morons to genuinely dangerous people to being people genuinely likely guilty of major crimes (there is a distinction, incidentally, between those last two categories). But it bothers me mightily when I hear “he advocated” this or “he supported” that or even “he threatened this” as justification for a capital punishment. And it would bother me even if that sentence were accorded after a thorough investigation leading to the bringing of criminal charges leading to a conviction at a jury trial—as, more or less, is true in this case, but not most others of the same kind.

    Comment by Brad — 4/18/2012 @ 6:34 pm

  3. Three comments:
    1. My sense is that your letters to Andrew have become increasingly accusative and combative. this is deserved, but means you are probably less likely to get them published had you engaged in the exact same arguments but not focused them specifically on Sullivan’s failures in the civil liberties and trust of government power (so long as its Obama wielding it) departments.
    2. Greenwalds full-throated defense of Mehanna is disappointing because he seems to casually lump him in with other, non-terrorist, clear cut cases of government intrusion. The guy had due process at least, and it was more than AG Holders version.
    3. I have been trying to convince a couple of my liberal friends that they are giving Obama a complete pass on issues that liberals supposedly care about, and just saying he is the lesser of two evils and therefor gets your vote is insufficient if you ever with to coerce the Democrats into actually supporting civil liberties rather than merely giving them lip service. One of the issues has been a lack of promised transparency, and I included some Holder/DoJ actions, especially the prosecution of whistle blowers. I was asked (in all honesty not just as a “prove it” challenge) to provide some links or references, because the really wanted to know what I was on about. I started to send her Greenwald’s links, but in the past weeks he seems to be casual ly intermixing the truly guilty of crimes with the really BS harassees. Bradley Manning, however atrociously he has been treated, is most likely guilty of major crimes, and is not the same as some conscience ridden CIA agent that carefully hedged his info with open source sources. So GG is not a good link, he’s too easy to dismiss. And I say that as a fan. So anyone got any recommendations for a good all source “Obama has abandoned civil liberties especially transparency” source?

    Comment by Jack — 4/18/2012 @ 8:49 pm

  4. As you note, there are numerous examples of that in individual Greenwald posts. Young Turks is also good on the subject.

    Comment by Rojas — 4/18/2012 @ 10:44 pm

  5. Well, he posted it and answered, sort of.
    http://andrewsullivan.thedailybeast.com/2012/04/stretching-the-limits-of-free-speech-ctd.html

    Comment by Jack — 4/23/2012 @ 4:32 pm

  6. Yeah.

    A soldier who enlists in an army may not see action or ever kill anyone. But if he is on the field of battle, is aiding the war and is killed, then I do not think the killing is somehow a war crime rather than simply war. So, yes, I would not change my position. And I believe tangible aid for a terrorist organization is as protected as free speech as publishing a personal death threat against an individual. It isn’t. There are limits.

    Is it even worth pointing out what a non-answer that is?

    1. I’m not sure what “enlisting” in the War on Terror might entail – going to the Terror recruitment office in the strip mall? Getting your Terror uniform and dress socks? Signing up for a Terror pension, and the “Terror Army” health insurance and mortgage program?

    No, this is dressing up one non-answer with another. “Enlisting”, in this usage, means exactly what I accused him of pushing—an arbitrary distinction decided, in secret, by the people in a position to have him murdered. There is NO DISTINCTION between Andrew’s “enlisted in an army” and my “accused of being a terrorist.” To Andrew in this case, and the neocons in every other, those are one in the same.

    2. Likewise, “on the field of battle.” We are not, of course, at war with Yemen, and we don’t even have a bullshit House resolution giving us green light to conduct hostilities there. When Andrew says “on the field of battle”, what he means is “the dude is alive somewhere, anywhere”. Because, the Bush and Obama definition of field of battle is, you know, everywhere, at all times. That’s a central underpinning of “The War on Terror”, and it’s one that Andrew is totally buying into and supporting in this case. If some dude on a computer in Yemen is “on the field of battle”, there is no field, and there is no battle.

    3. And “aiding the war”. Here he must mean “aiding our enemy in the war”, which is, let’s remind yourselves, Terror (an army that he enlisted in, apparently). But of course what’s really happening with that word is Andrew isn’t comfortable with my question—he prefers not to call it “speech”, so instead calls it “aid”—and when I call him on it, he just repeats it.

    So, in Andrew’s definition, “speech in support of” = “material aid”.

    4. And of course, he doesn’t suggest any arbiter for any of these phrases or words—no process to define when one has “enlisted”, or what constitutes “aid” or to make clear when one is on the “battlefield” or not. Nope, defining those things isn’t important, I guess. Like porn, you just know it when you see it. Except, porn carries a fine—in this case, when somebody in a position of power sees it, the person “guilty” just gets drone-bombed. Otherwise, totally the same.

    5. But the real kicker: “I believe tangible aid for a terrorist organization is as protected as free speech as publishing a personal death threat against an individual.” That sounds totally reasonable in the complete and utter vacuum that Andrew likes to keep this discussion in. Except when he says “tangible aid” he means “anything, including supporting speech”. And when he says “as protected”, of course, what he means is “subject to an immediate death sentence without evidence, charge, or appeal”. And that’s when you realize Andrew’s tortured logic calls for an automatic death sentence, without trial, evidence, witnesses, judges or juries, for anybody publishing a personal death threat. Adding that what constitutes a death threat, and who makes that judgment, is, you know, whatever.

    What’s ironic about all of this is I built for Andrew a straw man and invited him to knock it down. And instead, he just doubled down on the straw man. I made a cartoon of his position (not unfairly), and his response is to reiterate that his position is, in fact, a cartoon, and to sign it at the bottom. Because, as I keep asserting, these positions aren’t born of reason, they’re born of emotional and partisan knee-jerks.

    So you have a guy like Andrew Sullivan, who argued so cogently against Bush-era abuses of power, suddenly transformed into…this. Putting his name behind responses with LESS of a level of detail, argument, and rational than even Bush proponents. Seriously—the response above is even more willy-nilly, pat, and patronizing than you’d ever find from Cheney, Yoo, Rumself, or whoever. And it all comes down to simply liking the guy in charge more, such that you’d trust a government under his control with the same powers and flexibilities that were intolerable threats to the republic in the administration before—because, you know, he’s a guy you’d like to have a beer with. Rule or Law schmule of law—really, it’s about Trustiness.

    Comment by Brad — 4/23/2012 @ 5:04 pm

  7. Ugh, the more I think on this, the madder I get.

    My new letter:


    Hi Andrew. While I appreciate you posting my email I guess, the real reason I wrote to you, and am again, is to implore you to read, and think about, what you’re writing.

    Even the other email you posted gets at it:

    “Once he translated their hateful documents and videos, he crossed the line from acceptable free speech to direct and active support for the enemy.”

    And you’re arguing that such direct and active support for the enemy (which includes, by your definition, speech), as in the case of Al-Awlaki, is a capital offense. Moreover, it is such an egregious capital offense, that there is no burden of proof for it—it can be decided, in secret, with no evidence, appeal, or charge, by the executive branch.

    Do you understand what you’re arguing?

    You are arguing that there is a class of speech that warrants a person’s immediate execution, without charge or trial. Let’s not be cute about it, or try to dress it up with mere rhetoric.

    Mehanna’s case is, in many respects, the outlier—at least he got a jury trial. But look at what you wrote in response to my email below, and read it with any eye for bullshit.

    “A soldier who enlists in an army may not see action or ever kill anyone. But if he is on the field of battle, is aiding the war and is killed, then I do not think the killing is somehow a war crime rather than simply war. So, yes, I would not change my position. And I believe tangible aid for a terrorist organization is as protected as free speech as publishing a personal death threat against an individual. It isn’t. There are limits.”

    Let’s just try a very simple exercise of defining terms:

    “Soldier”: Not necessarily somebody who picks up arms, but rather anybody who has engaged in speech sympathetic to or supportive of a cause with which we are at war. This includes American citizens who have never picked up arms against the military.
    “Enlists in an army”: Speaks out in favor of (unless I missed something and all these guys wound up in the Terror Army recruiting office). This is also a polite way of saying “is accused of being a terrorist”.
    “Field of battle”: Anywhere. Want to define what isn’t a field of battle? (I in particular can’t believe you buy, whole hog, the Cheney/Rumsfeld/Yoo conception here).
    “Aiding the war”: Anything determined to be in support of, including sympathetic speech, translating “hateful” documents, etc.

    And the kicker: “tangible aid for a terrorist organization is as protected as free speech as publishing a personal death threat against an individual.” Except when you say “protected”, you don’t mean legally. You mean “is not subject to immediate execution without trial or charge.”

    Are you arguing that publishing a personal death threat against an individual is grounds for execution? Because that’s precisely what you are arguing, if you’re drawing the parallel to Al-Awlaki. And not only is it grounds for execution, it is is grounds for extra-legal execution, such that, in the act of publishing a death threat, you lose all rights to citizenship, Geneva Conventions, and human rights? And that whether you in fact published that death threat or not is not something for a court to determine—but rather, something that is actionable on merely the accusation?

    If you DON’T believe those things, then how is that analogous?

    You love to argue for the rule of law. And yet you are freely blase about it here. You love to argue for free speech—and yet, your rationalizations here are precisely what one would hear from an Imam arguing for the assassination of Trey Parker for showing Mohammed (if you chafe at that, explain to me, in detail, how your worldview here substantively differs, in both theory and practice). The fact is, we are not talking about what speech is legal versus what speech is illegal—we’re not talking about fines, or losing a license, or even being found guilty of a crime. We’re talking about the notion that being ACCUSED of a certain kind of speech—an accusation that is not subject to judicial review, appeal, or even basic articulation/transparency—is, in the United States of America, justification for being murdered by the government.

    And you are arguing in favor. There is a class of speech, in your mind, that deserves instant, immediate, and unappealable death. That is the position you have staked out here.

    The ultimate irony here is you were so cogent in calling out this kind of bullshit, and the heinous corrosiveness of it as an underpinning of governance, during the Bush administration. You understood that the rule of law was about defining protocols and processes irregardless of our knee-jerk emotional reactions to any given thing—indeed, that the rule or law existed precisely to not allow those reactions to get the best of us. But under Obama, you’d trust a government under his control with the same powers and flexibilities that were intolerable threats to the republic in the administration before—because, quite simply, he’s a guy you’d like to have a beer with.

    Brad


    Oh, and for the record Jack, I actually don’t get too concerned whether Sullivan or anybody really actually publishes my emails. To me, shooting off emails is roughly equivalent to praying (which I also do). I doubt anybody’s listening, but taking the effort to organize my thoughts and articulate them and cast them out into the ether—acting as if—is nourishing and productive in its own right.

    Comment by Brad — 4/23/2012 @ 5:50 pm

  8. Well, at least he’s starting to get squishy now.

    My last email. And admittedly, it’s getting kind of squishy now as we’re lumping in a lot of different cases which aren’t necessarily that similar.


    Last email, I swear!

    Your last post on the subject actually gives me some hope–at least you’re getting (rightly) squishy! So rather than argue at length, let me post just reiterate something that I feel keeps getting glossed over in this discussion, and that I think has to be top-of-mind.

    When we are talking about seditious or treasonous speech, it is a false choice to put it in terms of allowing it or not. This conversation is not about what should be LEGAL. It is about what should carry an AUTOMATIC DEATH SENTENCE or otherwise qualify a person as no longer being subject to due process. If you want to charge somebody with treason—provide evidence, put it in front of a jury, and even end with a death sentence—fine.

    We are not saying, if somebody cries “Fire” in a crowded theater, that he has that right, nor are we saying that, in any of the cases we’re discussing, America ought not be able to PROSECUTE these people. We are saying that, in that instance, the police would not have the right to lob a grenade in his general direction (killing him, his teenage son, and whoever happens to be around him at the time) right then and there. The question here is not whether speech should be allowed, which is the terms youi keep putting it in. Rather, it is about whether there is a certain kind of speech–pure speech–which suddenly renders a person entirely out of bounds of the rule of law or due process, such that merely being ACCUSSED of engaging in that kind of speech allows the government to kill you without trial (or drop you into a black site, or extradite you back to Syria to be tortured, etc.). And don’t forget, we’re also not talking about somebody being CHARGED AND FOUND GUILTY of that speech, we’re talking being extra-legally accussed, and going straight from that (unchallenged, unevaluated, and uncertified) accusation to immediate sentencing and execution, without appeal, transparancy, or jurisprudence of any kind. Saying that the government has the right to kill and American citizen in this manner is, in effect, saying there is a kind of speech that open that door (again, Awlaki was not on a battlefield, was not taking up arms against the American military, did not pose an immediate violent threat to anybdoy—he was not, even in the fudgy definitions of our Authorization of the Use of Force, in any way sense of the word a “soldier”).

    This isn’t just an important distinction; it is, in fact, the heart of the matter.

    Your position in regards to Awlaki and more generally is that there is a class of speech that suddenly makes a person subject to an entirely differnet set of rules than the rest of us—that puts them into a class of person to whom the Constitution, Bill of Rights, or Geneva Conventions no longer. That there is a statement you can make or a document that you can translate that, at the moment of that act of speech, allows the government to walk up to you and put a bullet in your brain, right then and there.

    This is not even about criminalizing seditious speech or whether immatieral acts can be material support. This is about the government being allowed to create, on the fly, with no review or appeal or transprancy, an entirely different system of justice that it defines and executes. And, which system of justice a person might be subject is left entirely up to them.

    Mehenna may be a traitor—Awlaki certainly would be, I’d imagine. So charge them with treason. We have no dearth of laws in this country with which these guys could be charged. And Mehenna’s case is different—he actually was charged, at least, which makes him an exception here. Greenwald’s point with him, I think, is that once you allow, from the top, this idea that speech = terrorism, that bleeds down even to the court system and is now permeating our justice system (and extra-justice system) at every level, which is a fair enough point. But me? I’lll just be happy when we actually apply the court system to it in the first place. Instead, the government is asserting that there is a kind of speech that makes you materially no different than an enemy soldier on a battlefield firing a gun at an American Marine, even if that speech is, say, translating a document or writing a blog post, as an American citizen, anywhere in the world. That’s a damn, damn bold leap, and I think you’ve been more than a little blind to it as yet.

    Comment by Brad — 4/24/2012 @ 12:34 pm

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