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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Ukraine Is More Western Than You Think: The Trial of Yulia Tymoshenko

On October 11th, Yulia Tymoshenko, the former Prime Minister and would be President of Ukraine, was sentenced to 7 years in prison. Politicians, analysts, and reporters from Moscow, Russia, to Moscow, Missouri, have condemned her trial as an unjust farce. New York Times reporter Ellen Barry summed up many “western” views of the trial when she wrote that it would “lead Ukraine west, toward Europe, or into a tight symbiosis with the country’s Soviet-era masters in Moscow.” The consensus, of course, was that the guilty verdict has done the latter.

In our piece, Daniel R. Schwartz and I take a different view and argue that, while perhaps isolating the Ukraine politically, the trial itself demonstrates some striking similarities between our legal system and Ukraine’s. To convict Tymoshenko, politically-minded prosecutors cleverly utilized vague parts of the Ukrainian code of laws that were never designed to police her alleged behavior. As regular readers of my columns already know, the utilization of vague laws to convict the innocent is as American as apple pie (or, as it were, as Ukrainian as a nice bowl of Borsch).  


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Obama Crosses the Rubicon: The Killing of Anwar al-Awlaki

On September 30th predator drones flying out of a secret airbase in Yemen blew up a car carrying Anwar al-Awlaki and Samir Khan, American citizens allegedly involved with Al Qaeda.  While Khan was considered “collateral damage,” Awlaki was the main target and a man who, based upon the President’s word, had been placed onto an official kill list. On Forbes.com, Daniel Schwartz and I argue that the administration’s actions were highly troubling, as they represented a heretofore unimagined expansion of executive power. A presidential-ordered assassination of an American citizen, without the involvement of either of the other two branches of government, is a matter of profound consequence, regardless of the heinousness of the target. In a constitutional democracy, we argue, process matters.

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The Lying Witness, the Dank Cellar, and the Dingy Coffee Shop


William Weld famously won 109 out of the 111 cases his office prosecuted when he was US Attorney for Massachusetts. I am quite proud to be one of the two blemishes on his career. All it took was overzealous prosecutors, unscrupulous federal agents, a lying witness (hardly unusual in federal criminal trials), and the basement of a dingy coffee shop.

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Wendy Kaminer in The Atlantic: 'When Everyone is an Offender'


Stalwart civil libertarian (and longtime friend) Wendy Kaminer points out in The Atlantic how a recent New York Times Magazine article, which lauded "fuzzy" prohibitions on insider trading, essentially scoffs at the time-tested guarantee of due process. Due process "requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives," Kaminer writes. She goes on to cite the recent case of a Boston firefighter who was acquitted of mail fraud, and whose acquittal caused a curious uproar from local media.

Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded. 
But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written. 

"When Everyone is an Offender," Wendy Kaminer, The Atlantic (September 28, 2011)

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