A Ruling on Terrorism That Throttles Civil Liberties

On November 13th the United States Court of Appeals in Boston affirmed the conviction of young Sudbury pharmacology student Tarek Mehanna. Mehanna was convicted on charges of rendering “material support” to terrorism – a dangerously broad and vague provision of the Patriot Act – though nothing Mehanna did came close to posing actual danger. In our op-ed for the Boston Globe, my paralegal Juliana DeVries and I argue that the tragic Mehanna verdict was made possible by the Supreme Court’s 2010 decision in Humanitarian Law Project v. Holder. The Humanitarian Law Project decision opened the door for federal prosecutors to criminalize a wide range of previously protected expressive activities, such as those in which Mehanna engaged.

 

You can read our op-ed at: http://www.bostonglobe.com/opinion/2013/11/27/ruling-terrorism-that-throttles-civil-liberties/LXmml8hiFCkugBmvmYEt5J/story.html
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"A Doctor's Posthumous Vindication" in the Wall Street Journal

On December 3, a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled in favor of Al Caronia, a pharmaceutical salesman who had been convicted of violating the Federal Food, Drug and Cosmetic Act by pitching the off-label uses of a narcolepsy drug to doctors at conferences throughout the country. Declaring that the Department of Justice’s overly broad interpretation of the law violated Caronia’s free speech rights, the Court vindicated a practice that has become commonplace among physicians.

Doctors such as Peter Gleason, Caronia’s former codefendant, learn through their experiences with patients that many drugs turn out to be effective treatments for ailments other than those for which the FDA has granted official approval. And physicians have a well-established right to prescribe any drug for any use they see fit and to share their insights about effective treatments with other doctors. So it came as quite a surprise to Dr. Gleason when he was arrested by a half-dozen federal agents one day in 2006 and sent down the rabbit hole of the federal criminal justice system for allegedly conspiring to mislead his fellow physicians. I discussed Dr. Gleason’s unjust prosecution in my book Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009). My latest piece for the Wall Street Journal serves as a postscript for that discussion, explaining how the Second Circuit’s ruling vindicated Dr. Gleason’s belief that he had never engaged in any improper activity – vindication that, tragically, came too late.

You can find the piece on the Journal's website.
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Should Attleboro Teens Have Been Arrested After Posting Threats On Facebook?

Two days ago I was asked to appear on WBUR Radio's "Radio Boston" in order to discuss a recent case that has gotten quite a bit of press. The case involves two Attleboro, MA teenagers who were arrested after posting comments on Facebook about school shootings. Slate's Emily Bazelon and I discussed the charges before taking questions from callers.

You can find my interview after the jump.
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Obama Learns Newspeak: The Administration's Perversion of the Freedom of Information Act (FOIA)


On October 30th, the Obama administration proposed an executive rule that will instruct government agencies to lie to the citizenry. The administration's proposal is a rule-change to the Freedom of Information Act: under the new policy, agencies would be instructed to tell citizens seeking prohibited documents not merely that the documents are not available, but that the documents do not exist at all. As my research assistant Daniel Schwartz and I show in our article on Forbes.com today, the implications of this seemingly insignificant bureaucratic decision are quite far-reaching, and make a veritable mockery of President Obama's supposed embrace of a new "era of openness" in government.

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Terrorizing Free Speech: the case of Tarek Mehanna


Tarek Mehanna may have objectionable--even horrific--views, but that does not make him a terrorist or a criminal. Mehanna was arrested two years ago on charges of lying to federal investigators, and providing material support to terrorists. The FBI also implies that Mehanna had plans to carry out a shooting spree in the Sudbury mall, but was thwarted by his inability to obtain weapons (consider, for one moment, how easy it is to get a gun in the United States). The crux of the government's case centers on a series of videos for which Mehanna allegedly provided subtitles; the translations, the Feds say, represented material support for terrorists. 

Last night I spoke with Emily Rooney on her WGBH show about the case, arguing that, in order to live in a free and open society, we must protect speech, even the speech of those whose beliefs we find abhorrent. The video is embedded after the jump.

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Updates related to Harvey's
book Three Felonies a Day, a critical
take on the Justice Department

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