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(The Daily Beast)   Should an American citizen who translates Al-Qaeda propaganda for the purposes of spreading it be charged with treason? Or is it a valid expression of his first amendment rights? Difficulty: Not hypothetical   (andrewsullivan.thedailybeast.com) divider line 237
    More: Interesting, United States Nationality law, al-Qaeda, propagandists, First Amendment, Tarek Mehanna  
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2290 clicks; posted to Politics » on 24 Apr 2012 at 2:02 PM (2 years ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2012-04-24 10:57:07 AM
Tough. My inclination is to say its his free speech and this should not be a crime, but I could be talked into the opposite.

The best analogy I can think of is someone translating communist tracts during the cold war, which seems to me to be obviously protected speech.
 
2012-04-24 11:02:22 AM
First amendment rights only apply to non-controversial speech.
 
2012-04-24 11:04:15 AM

DamnYankees: The best analogy I can think of is someone translating communist tracts during the cold war, which seems to me to be obviously protected speech.


Well, that really depends on the contents, right? An incitement to violence against the government would be a heck of a lot less protected than something like a tract about why Communism was superior.

In any case, at the very least, I think the translation and spreading of Al-Qaeda incitement to violence and radicalism might be at least chargeable under 18 USC 2381 for "giving aid and comfort" to the enemy. The argument can be made, at the very least, I think.
 
2012-04-24 11:06:38 AM

RexTalionis: Well, that really depends on the contents, right? An incitement to violence against the government would be a heck of a lot less protected than something like a tract about why Communism was superior.


"Incitement to violence" is a really interesting phrase. I mean, isn't the Communist Manifesto itself an incitement to violence, or at least plausibly interpreted as one?

RexTalionis: In any case, at the very least, I think the translation and spreading of Al-Qaeda incitement to violence and radicalism might be at least chargeable under 18 USC 2381 for "giving aid and comfort" to the enemy. The argument can be made, at the very least, I think.


I find it very hard to believe that verbal support of an enemy could qualify as enough to be counted as treason - seems like that standard is way too low, no? That's essentially saying "my country right or wrong" during wartime, which I can't really stomach.
 
2012-04-24 11:06:49 AM
Free speech. No charges.
 
2012-04-24 11:08:27 AM

GAT_00: Free speech. No charges.


Not only was the man charged, he's already been convicted.
 
2012-04-24 11:09:23 AM

DamnYankees: Tough. My inclination is to say its his free speech and this should not be a crime, but I could be talked into the opposite.

The best analogy I can think of is someone translating communist tracts during the cold war, which seems to me to be obviously protected speech.


Except that we are in an actual shooting war with Al Qaeda, and we weren't with the Soviet Union (or communism in general).

Article 3, Section 3:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Seems to me that would qualify. Translating and transmitting propaganda materials for an organization in an actual shooting war against the United States would appear to be giving them "Aid and Comfort", especially given that the individual in question left the United States in an attempt to join them, something that, say, a news organization or translation service wouldn't do.
 
2012-04-24 11:09:32 AM

DamnYankees: "Incitement to violence" is a really interesting phrase. I mean, isn't the Communist Manifesto itself an incitement to violence, or at least plausibly interpreted as one?


Having never read the Communist Manifesto, I would have no idea whether it is or it isn't.

DamnYankees: I find it very hard to believe that verbal support of an enemy could qualify as enough to be counted as treason - seems like that standard is way too low, no? That's essentially saying "my country right or wrong" during wartime, which I can't really stomach.


Well, verbal support seems to me (and I don't know this whole area of criminal law) something akin to saying "Yeah! I support you!" To actively translate Al-Qaeda propaganda and then, in turn, distribute it, seems to go beyond mere verbal support.
 
2012-04-24 11:10:46 AM

dittybopper: Except that we are in an actual shooting war with Al Qaeda


I'm not aware of any declaration of war against Al Qaeda - is there any document which says anything similar? This is one of the problems with the way we've been conducting war the last few decades - its so amorphous.
 
2012-04-24 11:11:37 AM

RexTalionis: Well, verbal support seems to me (and I don't know this whole area of criminal law) something akin to saying "Yeah! I support you!" To actively translate Al-Qaeda propaganda and then, in turn, distribute it, seems to go beyond mere verbal support.


Well yeah, it's not verbal, but I'm not really aware of any distinction between written and oral speech in terms of first amendment rights.
 
2012-04-24 11:13:39 AM

DamnYankees: RexTalionis: Well, verbal support seems to me (and I don't know this whole area of criminal law) something akin to saying "Yeah! I support you!" To actively translate Al-Qaeda propaganda and then, in turn, distribute it, seems to go beyond mere verbal support.

Well yeah, it's not verbal, but I'm not really aware of any distinction between written and oral speech in terms of first amendment rights.


No, no, I don't mean verbal literally. I meant that verbal support, it seems to me, something like saying or posting your support for an ideal. Translation and redistribution seems to go beyond merely making a statement of support.
 
2012-04-24 11:13:46 AM

RexTalionis: In any case, at the very least, I think the translation and spreading of Al-Qaeda incitement to violence and radicalism might be at least chargeable under 18 USC 2381 for "giving aid and comfort" to the enemy. The argument can be made, at the very least, I think.


Also, what about this scenario - what if you are a scholar and you are merely studying these texts from a political science point of view. You translate them and publish them in professional journal. Your intent has nothing to do violence or treason; you hate al-Qaeda.

Isn't this fundamentally the same act? Why should it matter whether in your heart of hearts you support the text of what you are translating or not?

I'm very troubled by this.
 
2012-04-24 11:14:22 AM
I started an analogy to Al Capone's accountant, but then realized that my entire knowledge of Capone's organization comes from a Kevin Costner movie and thought better of it. CS,B.
 
2012-04-24 11:15:09 AM
The Founders would probably have considered the speech advocating violent destruction of the US unprotected in the context of an actual enemy.
 
2012-04-24 11:15:24 AM

DamnYankees: RexTalionis: In any case, at the very least, I think the translation and spreading of Al-Qaeda incitement to violence and radicalism might be at least chargeable under 18 USC 2381 for "giving aid and comfort" to the enemy. The argument can be made, at the very least, I think.

Also, what about this scenario - what if you are a scholar and you are merely studying these texts from a political science point of view. You translate them and publish them in professional journal. Your intent has nothing to do violence or treason; you hate al-Qaeda.

Isn't this fundamentally the same act? Why should it matter whether in your heart of hearts you support the text of what you are translating or not?

I'm very troubled by this.


Well, in criminal law, intent does matter, doesn't it?
 
2012-04-24 11:17:18 AM

RexTalionis: Well, in criminal law, intent does matter, doesn't it?


This isn't a matter of intent. It's a matter of motive. 2 different things.

Intent = "did you mean to do this"
Motive = "why did you do this"

2 very different things, and motive is pretty much never an element of the crime. Both the man in TFA and my hypothetical professor intended to do what they did, merely with different motives.
 
2012-04-24 11:17:25 AM

RexTalionis: Well, in criminal law, intent does matter, doesn't it?


Intent, not motive.
 
2012-04-24 11:17:32 AM

DamnYankees: RexTalionis: Well, that really depends on the contents, right? An incitement to violence against the government would be a heck of a lot less protected than something like a tract about why Communism was superior.

"Incitement to violence" is a really interesting phrase. I mean, isn't the Communist Manifesto itself an incitement to violence, or at least plausibly interpreted as one?


Not if you read it properly. The manifesto says what WILL happen. It deprecates artificial catalyzation.
 
2012-04-24 11:20:15 AM

vygramul: It deprecates artificial catalyzation.


Well look at you, mister fancy pants.
 
2012-04-24 11:20:53 AM

DamnYankees: The best analogy I can think of is someone translating communist tracts during the cold war, which seems to me to be obviously protected speech.


I think the major question would be whether or not one is inciting violence. Translating communist propaganda doesn't necessarily rise to that level, as long as they're only pushing communism and not calling for assassinations or anything. Al Qaeda propaganda on the other hand, may very well rise to that level, depending on what exactly was said.

Yeah, this is a tricky one.
 
2012-04-24 11:21:53 AM

DamnYankees: RexTalionis: Well, in criminal law, intent does matter, doesn't it?

This isn't a matter of intent. It's a matter of motive. 2 different things.

Intent = "did you mean to do this"
Motive = "why did you do this"

2 very different things, and motive is pretty much never an element of the crime. Both the man in TFA and my hypothetical professor intended to do what they did, merely with different motives.


But, in American criminal law, attendant circumstances are elements of a crime. And, can't you make the argument that the Al-Qaeda sympathizer, in having the purpose of distributing his translations to radicalize others, has an attendant circumstance that is simply not present in the example of the hypothetical professor?
 
2012-04-24 11:22:06 AM
tough one.

you have a right to own a gun. you don't have a right to use it to commit a crime.

you have a right to free speech, but do you also have the right to use that speech to aid and abet the enemy in its goal of murdering americans?

my gut says no. and i'm an ardent defender of free speech.
 
2012-04-24 11:22:58 AM

nekom: I think the major question would be whether or not one is inciting violence.


If you read TFA, you'll see he wasn't convicted for that, though. He was convicted for reasons of treason. The act of inciting violence doesn't really have any connection to treason, they are entirely separate crimes.
 
2012-04-24 11:24:31 AM

RexTalionis: But, in American criminal law, attendant circumstances are elements of a crime. And, can't you make the argument that the Al-Qaeda sympathizer, in having the purpose of distributing his translations to radicalize others, has an attendant circumstance that is simply not present in the example of the hypothetical professor?


I'm not a criminal lawyer, but I don't recall the phrase "attendant circumstance" ever coming up in my criminal law class. Motive may be used in order to establish certain elements of a crime (for example, you can use motive to help establish the fact of "malice aforethought" in first degree murder), but I'm not sure it makes any difference in this case.
 
2012-04-24 11:25:33 AM

DamnYankees: If you read TFA, you'll see he wasn't convicted for that, though. He was convicted for reasons of treason. The act of inciting violence doesn't really have any connection to treason, they are entirely separate crimes.


They are, but how is it treason to push an idea that happens to be unpopular at the time? Now if they were distributing information that could directly put American soldiers or civilians in danger, that could be seen as treason. Likewise if someone is distributing Al Qaeda information that could directly put Americans at risk, I could see a possible case for it. If it's just "America is an imperialist nation who blah blah blah", not so much.
 
2012-04-24 11:26:54 AM

DamnYankees: RexTalionis: But, in American criminal law, attendant circumstances are elements of a crime. And, can't you make the argument that the Al-Qaeda sympathizer, in having the purpose of distributing his translations to radicalize others, has an attendant circumstance that is simply not present in the example of the hypothetical professor?

I'm not a criminal lawyer, but I don't recall the phrase "attendant circumstance" ever coming up in my criminal law class. Motive may be used in order to establish certain elements of a crime (for example, you can use motive to help establish the fact of "malice aforethought" in first degree murder), but I'm not sure it makes any difference in this case.


Neither am I, but it did come up in my crim law class. Essentially, the difference between purposefully setting fire to one's house and purposefully setting fire to one's house for the purpose of committing insurance fraud (using a very very simplified hypothetical insurance fraud statute).
 
2012-04-24 11:27:22 AM

nekom: DamnYankees: If you read TFA, you'll see he wasn't convicted for that, though. He was convicted for reasons of treason. The act of inciting violence doesn't really have any connection to treason, they are entirely separate crimes.

They are, but how is it treason to push an idea that happens to be unpopular at the time? Now if they were distributing information that could directly put American soldiers or civilians in danger, that could be seen as treason. Likewise if someone is distributing Al Qaeda information that could directly put Americans at risk, I could see a possible case for it. If it's just "America is an imperialist nation who blah blah blah", not so much.


Sounds like the latter, which is troubling. From TFA:

The government's indictment of Mr. Mehanna lists the following acts, among others, as furthering a criminal conspiracy: "watched jihadi videos," "discussed efforts to create like-minded youth," "discussed" the "religious justification" for certain violent acts like suicide bombings, "created and/or translated, accepted credit for authoring and distributed text, videos and other media to inspire others to engage in violent jihad," "sought out online Internet links to tribute videos," and spoke of "admiration and love for Usama bin Laden." It is important to appreciate that those acts were not used by the government to demonstrate the intent or mental state behind some other crime in the way racist speech is used to prove that a violent act was a hate crime. They were the crime, because the conspiracy was to support Al Qaeda by advocating for it through speech.
 
2012-04-24 11:28:32 AM

RexTalionis: Neither am I, but it did come up in my crim law class. Essentially, the difference between purposefully setting fire to one's house and purposefully setting fire to one's house for the purpose of committing insurance fraud (using a very very simplified hypothetical insurance fraud statute).


But again, that's an issue of intent, not motive. "Did you intend to defraud your insurance company", which is an element of the crime.

What element of treason, or conspiracy to commit treason, requires this kind of question to be asked? I genuinely don't know, maybe you're right.
 
2012-04-24 11:29:52 AM
Another very interest bit from the article:

In the 2010 Supreme Court decision Holder v. Humanitarian Law Project, Chief Justice John G. Roberts Jr. declared that for speech to qualify as criminal material support, it has to take the form of expert advice or assistance conveyed in coordination with or under the control of a designated foreign terrorist organization.

I just don't see how what this man did was a crime.
 
2012-04-24 11:29:59 AM

DamnYankees: "discussed" the "religious justification" for certain violent acts like suicide bombings


Of those, that's the one I believe comes closest to possibly directly threatening lives, but even that is borderline. After all, I could have a discussion about the religious justification for murder in general and I don't think I'd run afoul of the law.
 
2012-04-24 11:31:06 AM
This is vomit-inducing:

For example, in his opening statement to the jury one prosecutor suggested that "it's not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology."

What the fark?
 
2012-04-24 11:38:25 AM

DamnYankees: GAT_00: Free speech. No charges.

Not only was the man charged, he's already been convicted.


Yeah, but it's free speech. I'm just saying if you charge him for this, you're wrong. Wouldn't be the first time I've said this administration was badly wrong on rights. They were wrong to kill bin Laden and Anwar al-Awlaki too.
 
2012-04-24 11:55:47 AM

Marcus Aurelius: First amendment rights only apply to non-controversial speech.


Pft. First amendment. How quaint. The new order of things as established this and the previous presidency is clear.

The president has been granted unfettered war powers by an open ended mandate from Congress to smite all enemies, foreign and domestic. Therefore, if he decides you are a Terrorist -- which he can do if you so much as publish anti-American magazines -- expect death from above; no arrest, no trial, no conviction.
 
2012-04-24 11:57:44 AM

DamnYankees: vygramul: It deprecates artificial catalyzation.

Well look at you, mister fancy pants.


I was quite pleased with myself for that particular phrasing.
 
2012-04-24 12:15:59 PM
Hmmm. I tend to disagree with the prosecution and the court on this. He wasn't working with al Qaeda or any other terrorist organization. That he would have "liked to have worked with them" is irrelevant. I would think the First Amendment would apply even in cases where the speech may be inflammatory and anti-government. That was the entire purpose of the First Amendment.

Hell, if they can prosecute people for anti-American/anti-government speech, half of fark would be in jail.
 
2012-04-24 12:25:41 PM
It depends, is he doing it in America or abroad?

If he's in America, fark it. I can make my own anti-government propaganda with no repercussions because of the 1st amendment.

But if he's abroad and piping that shiat into our country? farking charge him with treason and revoke his citizenship.
 
2012-04-24 12:27:06 PM

doglover: It depends, is he doing it in America or abroad?


I don't think I understand this principle. What element of the crime changes based on your location at the time?
 
2012-04-24 12:41:35 PM

DamnYankees: doglover: It depends, is he doing it in America or abroad?

I don't think I understand this principle. What element of the crime changes based on your location at the time?


If you say "Al Queda is right." that's just words. Words are wind. You can say that till you're blue in the face. If you go and help them set up some bombs, you should be hung by the neck until dead, cut into four pieces, and displayed in five major cities.


Same principle applies here, but it's low not high treason. If you find Al Jezera nice and translate it from your taxpaying home in the states, that's on you. If you go over to Al Jezera's HQ and help them write propaganda, you're now worse than Tokyo Rose because she was forced into it by the Imperial army.

And if you don't know who Tokyo Rose is, you really aren't even mentally qualified to pass judgement on treason via propaganda at all because it's the most interesting case in the past 300 years.
 
2012-04-24 12:43:50 PM

doglover: If you find Al Jezera nice and translate it from your taxpaying home in the states, that's on you. If you go over to Al Jezera's HQ and help them write propaganda, you're now worse than Tokyo Rose because she was forced into it by the Imperial army.


Again - I'm not seeing the different. Let's say Al-Qaeda publishes their stuff online. Someone likes what they write so they translate it, put it on their own website and let people read. Why does it matter whether that person is sitting in a house in Calexico or in a cave in Yemen?

It's not the location that matters. It's the level of coordination, which is what I think you are implying.
 
2012-04-24 12:47:06 PM

doglover: If you say "Al Queda is right." that's just words. Words are wind. You can say that till you're blue in the face. If you go and help them set up some bombs, you should be hung by the neck until dead, cut into four pieces, and displayed in five major cities.


I believe there IS a point at which it is more than just words. I'm not sure if this is to that point, or really where exactly that point even is.

"Al Qaeda rules and Bin Laden is an hero!" - Just words.
"Here's a religious justification for suicide bombings and why you should totally do it!" - Getting closer, still don't think we're there.
"Here are detailed bomb plans and instructions on how to carry out a terrorist attack." - Now we may be getting there.

It's all a matter of what exactly the propaganda consisted of, really.
 
2012-04-24 12:48:50 PM

nekom: "Here are detailed bomb plans and instructions on how to carry out a terrorist attack." - Now we may be getting there.


I still don't think that's treason. It's a different crime, I believe. I'm not sure what the specific laws are relating to publishing material like that.
 
2012-04-24 12:57:02 PM

nekom: doglover: If you say "Al Queda is right." that's just words. Words are wind. You can say that till you're blue in the face. If you go and help them set up some bombs, you should be hung by the neck until dead, cut into four pieces, and displayed in five major cities.

I believe there IS a point at which it is more than just words. I'm not sure if this is to that point, or really where exactly that point even is.

"Al Qaeda rules and Bin Laden is an hero!" - Just words.
"Here's a religious justification for suicide bombings and why you should totally do it!" - Getting closer, still don't think we're there.
"Here are detailed bomb plans and instructions on how to carry out a terrorist attack." - Now we may be getting there.

It's all a matter of what exactly the propaganda consisted of, really.


It's not.

I can, in America, publish a book on HOW TO do a terrorist attack or utilize milspec equipment to cause a lot of damage hypothetically. Look at Paladin Press. That's cool.

But when you go abroad to corroborate your efforts with the foriegn entity that is opposed to your own government, you've now made a step too far and should at least be barred from returning without a tearful public apology and a large fine.

There's also something to be said for being too close in contact with foriegn anti-American groups while on American soil but I think it's very simple to understand that if you leave America to assist and anti-America organization you're a treason and should be treated as such.
 
2012-04-24 12:58:39 PM

doglover: But when you go abroad to corroborate your efforts with the foriegn entity that is opposed to your own government, you've now made a step too far and should at least be barred from returning without a tearful public apology and a large fine.


I'm not sure what the words "go abroad to" does in that sentence. The crime doesn't change based on where you are. If you collaborate without ever leaving San Dimas, it's still a crime.
 
2012-04-24 01:01:47 PM
FTFA:

Here's a quick list of Axis propagandists tried, imprisoned, and in some cases executed after World War II:


* William Joyce - Lord Haw-Haw, British propagandist for the Germans

* Fred W. Kaltenbach - Lord Hee-Haw, American propagandist for the Germans

* Iva Toguri D'Aquino - Tokyo Rose, American propagandist for the Japanese

* Mildred Gillars - Axis Sally, American propagandist for the Germans

* Rita Zucca - Axis Sally, American propagandist for the Italians



Is this person's case different from the above?
 
2012-04-24 01:09:12 PM

DamnYankees: I still don't think that's treason. It's a different crime, I believe. I'm not sure what the specific laws are relating to publishing material like that.


I'm not sure it's treason either. But at this point, what IS treason? Is the entire concept of treason outdated? Something we just need to retire for good? What would someone have to do in this day and age to be guilty of treason? What about the man selling secrets to Russia for diamonds? I don't recall what they ever wound up charging him with, I think it may have been a plea deal.

I say this tongue in cheek, but why even HAVE treason if we aren't going to charge people with it?
 
2012-04-24 01:22:01 PM

nekom: I'm not sure it's treason either. But at this point, what IS treason? Is the entire concept of treason outdated? Something we just need to retire for good? What would someone have to do in this day and age to be guilty of treason? What about the man selling secrets to Russia for diamonds? I don't recall what they ever wound up charging him with, I think it may have been a plea deal.


I think providing material goods or information to a country or entity at which we are officially at war with or hostile with is still a valid thing to criminalize. It's just a pretty farking rare thing to happen. John Walker Lindh, for example, seems pretty clearly to be a traitor.
 
2012-04-24 01:29:49 PM

DamnYankees: I think providing material goods or information to a country or entity at which we are officially at war with or hostile with is still a valid thing to criminalize. It's just a pretty farking rare thing to happen. John Walker Lindh, for example, seems pretty clearly to be a traitor.


I guess the question is how far you extend that. John Walker seems as close a candidate as any I suppose, but what about someone who instigates a suicide attack against American troops in Iraq? Even against civilian targets you could extend that as we are somewhat officially `at war' with Al Qaeda. So where do you draw the line? There is no `the enemy' in a traditional sense, there aren't any uniformed soldiers that we're fighting that one could assist. So is treason even possible in such a war?
 
2012-04-24 01:30:58 PM

nekom: but what about someone who instigates a suicide attack against American troops in Iraq?


What does "instigate" mean?
 
2012-04-24 01:35:24 PM
Doesn't the U.S. government pay translators to do the same (I understand that for different reasons)? But isn't this guy in the end not only exercising his free speech rights but also saving the government money to translate this stuff.
 
2012-04-24 01:36:58 PM

DamnYankees: nekom: but what about someone who instigates a suicide attack against American troops in Iraq?

What does "instigate" mean?


Egging someone on. Providing the religious justification or perhaps even detailed instructions. Again I don't know what exactly this `propaganda' consisted of, but it's possible that it rises to the level of directly contributing to a suicide bomb somewhere. Maybe it's not treason, maybe it is, but if the military were the target I suppose I could see a case to be made.
 
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