Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review
In the order following the Supreme Court’s September conference, the Court declined to hear a case that would have clarified §§ 2339A and B of Title 18 of the U.S. Code and prevented unlawful encroachment on free speech rights. Tarek Mehanna, convicted of providing “material support” to a foreign terrorist organization, asked the Court to clarify its interpretation of the statute under which he was prosecuted. The standard used to support this conviction, established in Holder v. Humanitarian Law Project, requires action “in coordination with, or at the direction of” the terrorist organization in question. Because HLP did not adequately explain this standard, the government has been able to convict defendants like Mehanna despite insufficient evidence to support the “coordination” requirement. Now, the Court has passed up an opportunity to correct this error by denying Mehanna’s petition for writ of certiorari, leaving his conviction in place, and effectively supporting an improper and ineffective standard. If the Supreme Court were to give courts and juries a more workable set of guidelines under which to establish “coordination,” they could more fairly decide these cases.
The Supreme Court Leaves a Door Open
Under §§ 2339A and B, it is a federal offense to “[provide] material support . . . to a foreign terrorist organization.” An amendment expanded the definition of “material support” to include “expert advice or assistance.” This amendment caught the attention of several organizations and free speech advocates, including the Humanitarian Law Project (HLP). The HLP provides legal training for Tamili and Kurdish political advocacy groups, some of which were designated as foreign terrorist organizations by the U.S. government. HLP’s training programs were geared toward those who wish to “use humanitarian and international law to peacefully resolve disputes.” But because of these groups’ affiliation with terrorist activity, the HLP feared that the amendment would limit their ability to advocate peaceably.
HLP brought suit, claiming that the amendment was unconstitutionally vague and likely to restrict protected speech under the First Amendment. The groups HLP trained were undoubtedly affiliated with violence; however, HLP argued that their teaching did not directly aid violence and was therefore not “material support” of terrorism. The Supreme Court rejected this argument, holding that HLP’s training would free up its clients’ organizational resources that could then be redirected to terrorist activity. Free speech rights were trumped by the potential for contribution to terrorism, making legal training—and possibly other speech-related activities—subject to criminal prosecution under this statute.
Tarek Mehanna’s Path to Prison
Mehanna’s arrest and conviction under §§ 2339A and B were based on two events. First, in 2004, Mehanna traveled to Abu Dhabi and Yemen with two associates. Mehanna and the government dispute the intent of this trip. The government presented one (admittedly unreliable) witness who testified that Mehanna may have been attempting to contact jihadist training camps for the purposes of joining al-Qa’ida. However, Mehanna denied that this was the intent of the trip and the government presented no further evidence to support this theory. Second, beginning in 2005, Mehanna frequented Islamic extremist websites and communicated with individuals with possible ties to al-Qa’ida. During this time, Mehanna translated portions of the websites from Arabic to English and redistributed them on American websites. Although Mehanna does not deny this activity, he asserts that he was never directed to complete these translations by any member of a terrorist organization. The government was unable to provide sufficient evidence to rebut this assertion.
At trial, very little evidence was presented to support any coordination between Mehanna and al-Qa’ida affiliates. The government merely offered emails that were never answered and possibly never even seen by Mehanna as well as messages between unindicted individuals that were never sent to Mehanna. The jury convicted Mehanna, sentencing him to seventeen and a half years in prison followed by seven years of supervised release. Mehanna appealed his conviction and the First Circuit affirmed it. Now that the Supreme Court has declined to review this conviction, Mehanna will remain in jail for the duration of his sentence.
How Review of Mehanna’s Case Would Have Resolved the Ambiguities of Holder v. HLP
The Supreme Court should have used Mehanna’s appeal to revisit their interpretation of §§ 2339A and B, and in particular, the law’s “coordination” requirement. Mehanna’s petition for certiorari presented the Court with an opportunity to rule on this issue with “a concrete fact situation,” thereby allowing the Court to establish a bright-line rule for what constitutes coordination. The Court should have clarified this aspect of § 2339A and B to prevent further unconstitutional restrictions on the political and religious speech of American citizens.
Critical aspects of the Court’s HLP decision have left interpretation of the law ambiguous and unresolved. Most importantly, the Court has not differentiated between independent advocacy and coordinated activity with a terrorist organization. HLP’s suit was a pre-enforcement challenge to the statute and the Court clearly stated that HLP was not intended for application to every as-applied challenge thereafter. As explained by Chief Justice Roberts, “gradations of fact or charge would make a difference as to criminal liability and so adjudication of the reach and constitutionality of the statute must await a concrete fact situation.” HLP established that services provided to another, by definition, require at least some level of coordination, if not explicit direction by the individual or group benefiting from those services. The Court stated unequivocally that coordination is a necessary component of “material support”; but by failing to create a bright-line test for courts to determine what constitutes “coordination,” questions of coordination or direction are left to the courts to decide on an ad hoc basis.
Holder v. Humanitarian Law Project held that the government must prove “coordination” to convict an individual under §§ 2339A and B, yet the court failed to define what constitutes “coordination.” In his petition for certiorari to the Supreme Court, Mehanna argued that his conviction rested entirely on the jury’s extrapolation of this “coordination” from his conduct. Mehanna’s jury was left to make the determination of “coordination” based on the content of his speech—his support of al-Qa’ida principles and translation and distribution of Islamic extremist material—that is otherwise protected. It is widely-accepted that such content-based restrictions are unconstitutional. If the content of Mehanna’s speech—i.e., his political and religious position as a terrorist sympathizer—is the foundation of his conviction, it contradicts decades of First Amendment jurisprudence.
In order to convict an individual for violations of §§ 2339A and B, HLP demands that the government establish that the accused provided material support to a foreign terrorist organization. Furthermore, the government must establish that the accused acted in coordination with or at the direction of the terrorist organization. Although this element is not explicitly stated in the “material support” portion of the statute, it is derived from the language of the statute itself because, by definition, carrying out a service for another requires some element of coordination. To quote Chief Justice Roberts, “[a] person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.”
Setting aside the moral complexities of Mehanna’s endorsement of jihadist violence, it is important to note that he is an American citizen. This citizenship provides Mehanna with constitutional protections, including freedom of speech. The Supreme Court’s endorsement of this conviction encroaches significantly on Mehanna’s constitutional right to free speech. By applying an ad hoc standard for establishing “coordination” for the purposes of the “material support” provision as set forth in HLP, the jury is left to fill in the blanks with their own perceptions of Islamic extremist sympathizers. Improperly vague jury instructions and the absence of a bright-line rule leave defendants like Mehanna open to be judged not on their compliance with the letter of the law, but by what the average jury member thinks of individuals who support the political and religious views of organizations like al-Qa’ida. Mere political and religious agreement with a dangerous organization should never be sufficient cause to incarcerate someone for seventeen years.
While the holding of HLP has been challenged in both district and circuit courts, the Supreme Court has not revisited the issue of “coordination” as it relates to “material support.” Where coordination is readily apparent, the uncertainties of HLP are a non-issue. However, for some individuals—including Tarek Mehanna—this matter is absolutely critical and must be resolved in order for courts to properly apply §§ 2339A and B.
As the most recent content-based restriction on political speech endorsed by the Supreme Court, the HLP standard undermines the very foundations of Free Speech jurisprudence. The Court should have taken this opportunity to establish a bright-line rule that more clearly defines the statute’s “coordination” requirement. By denying certiorari and letting Mehanna’s conviction stand, the Court not only kept a wrongly convicted man in prison, but endorsed further misapplication of the law for others. Tarek Mehanna is only one of many Americans feeling the impact of the Supreme Court’s decision in HLP. The vast majority of criminal terrorism charges brought following September 11, 2001 include violations of §§ 2339A and B, in particular the “material support” provision. Thus, continued misapplication of the law will have far-reaching impact on the rights of American citizens.
Because the line between individual advocacy and actual coordination with foreign terrorist organizations is so woefully blurred, denial of certiorari for Mehanna could result in very real repercussions for many Americans. This ambiguity is not only a concern for religious and political advocacy groups but opens a dangerous door for courts to justify the criminalization of all manner of politically unpopular speech, merely because it is so unpopular. Unless the Supreme Court takes steps to close that door once again, all individuals whose political and religious beliefs lie outside of culturally accepted norms are at risk.
 United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013), petition for cert. filed, Mehanna v. United States, 2014 U.S. S. Ct. Briefs LEXIS 1114 (Mar. 17, 2014) (No. 13-1125), cert. denied, Mehanna v. United States, 2014 U.S. LEXIS 5478 (Oct. 6, 2014).
 Holder v. Humanitarian Law Project, 561 U.S. 1, 24 (2010).
 18 USCS §§ 2339A and 2339B (Lexis 2014). This statute initially went into effect in 1994, but was amended under the Patriot Act in 2001.
 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act Of 2001, 107 P.L. 56, 115 Stat. 272, § 805(a)(2)(B) (Lexis 2014).
 Humanitarian Law Project, 561 U.S. at 22. HLP also included teaching organizations to “petition various representative bodies such as the United Nations for relief” among other objectively peaceable skills.
 Id. at 10.
 Id. at 17.
 Id. at 29.
 Petition for Writ of Certiorari, supra note 1, at 2.
 Id. at 2.
 Id. at 2 and 6a (Appendix B).
 Id. at 2.
 Id. at 2.
 Id. at 2.
 Id. at 5.
 Humanitarian Law Project, 561 U.S. at 31.
 Id. at 25 (quoting Zemel v. Rusk, 85 S.Ct. 1271 (1965), (internal quotation marks and brackets omitted)).
 Id. at 25.
 Id. at 25.
 Petition for Writ of Certiorari, supra note 1, at 20.
 Id. at 20. See also Brandenburg v. Ohio, 395 U.S. 444 (U.S. 1969).
 Humanitarian Law Project, 561 U.S. at 24.
 Catherine A. Hardee, The Coordination Conundrum, 49 Willamette L. Rev. 189 (2012).
 Sahar F. Aziz, Caught in A Preventive Dragnet: Selective Counterterrorism in A Post-9/11 America, 47 Gonz. L. Rev. 429 (2012).
 Sahar Aziz, The Laws on Providing Material Support to Terrorist Organizations: The Erosion of Constitutional Rights or A Legitimate Tool for Preventing Terrorism?, 9 Tex. J. C.L. & C.R. 45 (2003).