In 1776, just weeks after the Declaration of Independence, Samuel Adams delivered a speech in Philadelphia in which he proclaimed of the new United States, “Driven from every corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country for their last asylum.”1  The defense attorneys for Tarek Mehanna, on trial in federal court in Boston accused of providing material support for terrorism, will try to convince a jury that Mehanna is being denied his “freedom of thought and the right of private judgment,” and that in fact it was his opinions about the United States and its military involvement in the Muslim world that the prosecution seeks to punish.

I sat in the crowded courtroom Thursday morning and watched the prosecution, represented by Assistant United States Attorney Aloke Chakravarty, and J.W. Carney Jr., the attorney for Mr. Mehanna deliver their opening statements to the jury. While opening statements and the information conveyed in them are not evidence in the case, as federal district court Judge O’Toole explained to the jury as the trial commenced, they allow each side to prepare the jury for what they think the evidence will eventually show. Opening statements give the prosecution and the defense the opportunity to provide the jury with the big picture, to give them a lens through which to view the rest of the evidence as it develops slowly over the long trial. Judge O’Toole referred to the statements as the picture on the front of a jigsaw puzzle, and then the jury is given all the pieces, and finally decides which picture is formed and which pieces simply don’t fit.

The two attorneys painted very different pictures for the jury. AUSA Chakravarti began his statement recalling Osama bin Laden’s call to arms, what Chakravarty called a State of the Uma (Muslim world) address directing Muslims all over the world to jihad against Americans. Jihad, a term now familiar to most Americans but much less so when bin Laden delivered his message prior to the attacks on 9/11, was defined by Chakravarty as the fighting and killing of Americans. Bin Laden’s call resonated with Tarek Mehanna, said the prosecutor, and led him to engage in three courses of action that are now the subject of the prosecution. First, Mehanna entered into a secret agreement, a conspiracy, with a few others to travel to Yemen, receive terrorist training, and fight the United States in Iraq. He sought to provide himself and his co-conspirators as personnel support to Al Qaeda and other terrorist organizations killing American soldiers. Second, when he was unable to get the training in Yemen, he returned home and began providing services to Al Qaeda by translating videos and printed materials from Arabic into English. He published and distributed these materials on the internet, labeled as productions of Al Qaeda. Chakravarti held up a copy of Mehanna’s translation of “39 Ways to Serve and Participate in Jihad.” Finally, Mehanna lied to FBI investigators on multiple occasions, seeking to protect his conspiracy and his support for terrorism from government interference.

Chakravarty went on at length, though in a somewhat disjointed presentation that at times lacked chronological or topical coherence, about what evidence the government would provide to prove its case. The government, he said, would provide evidence of what Mehanna was reading and watching, to demonstrate the intent of his actions and the knowledge that he was benefiting Al Qaeda. Chakravarty at this point displayed a photo of the defendant and some others and Ground Zero; Mehanna’s ear to ear smile, he said, was because he was celebrating the attack on September 11th. He quoted one of Mehanna writings: “On that morning you became our hero, on the day you turned the Twin Towers into Ground Zero.” Chakravarty cautioned the jury that there was no crime for being un-American, but if they looked at the facts they would see that Mehanna supported terrorism through his actions.

The prosecutor then outlined the direct evidence that would be presented, photos and documents copied from Mehanna’s bedroom and his computer, all obtained pursuant to a covert court-ordered search while the Mehanna family was in Egypt. Chakravarti called the computer a “treasure trove, a veritable library of jihad.” The computer also contained six months worth of stored chats and instant messages, that Chakravarty claimed would help demonstrate Mehanna’s intent to aid Al Qaeda. The prosecution would also present emails, intercepted pursuant to a court order, and conversations recorded from a wiretap of Mehanna’s phone, during which he had coded discussions about his concern over the possibility of being investigated.

The prosecution would also introduce the documents and videos Mehanna translated and distributed as a moderator on the Al’Tibion Productions web forum, which Chakravarty called a “virtual conference room for jihadists.” The government at this point showed clips from one of the videos allegedly translated by Mehanna. The video had been edited with sound and graphics, labeled as an Al’Tibion production. It showed Osama bin Laden, at times speaking directly to the camera with subtitles in English, and at times edited into background scenes designed to glorify the message being spoken. Mehanna, according to the prosecutor, viewed himself as part of the media department of Al Qaeda. Al Qaeda, he said, has an actual media department, called Sahab, meaning cloud. Mehanna was at one point contacted by the “cloud people,” and personally solicited to translate the words of Ayman Al Zawahiri, at the time the second in command of Al Qaeda.

Finally, the prosecution said the defendant’s own words would show his conspiracy, his intent to aid Al Qaeda, and his lies to investigators. A bug placed in a location at which he was expected to be recorded Mehanna talking about a phone call from a friend in Somalia trying to recruit him to come train as a jihadist, a phone call he told FBI agents never happened. A recording device on a cooperating witness, one of Mehanna’s fellow travelers to Yemen, also acknowledged the call. Witnesses would testify that Mehanna had been part of discussions considering attacks on American shopping malls and Hanscomb Air Force Base. This case, concluded Chakravarty, is not about what Mehanna thought, but about what he tried to do.

Carney, Mehanna’s attorney, asked the jury to assemble a very different picture from the pieces of evidence that would be introduced at trial. He assured the jury that it was okay to feel afraid hearing the prosecution’s version of the charges, that he himself had felt that way, but cautioned them to keep an open mind about what the evidence would show and what the law and the Constitution allow. Mehanna’s parents, Carney began, came to this country from Egypt to be free to practice their religion and speak their minds about their beliefs without fear. Tarek Mehanna, a natural born American citizen, had a normal American upbringing. Photos were displayed of Mehanna sitting on Santa’s lap, playing baseball, and posing like a rock star with an electric guitar. Mehanna decided to go to college and study pharmacy, in which he eventually received his PhD. He goes to mosque weekly, and afterward plays basketball with his friends, and then goes out for pizza or Outback Steakhouse.

Mehanna wanted to learn about his Muslim heritage. He translated classical works from Arabic into English. He studied the history of repression of Muslims around the world: Afghanistan, Chechnya, Bosnia. On 9/11, he was shocked and confused, and could not understand why Muslims would attack the United States. He understood the U.S. decision to go to war in Afghanistan, the source of the attack on 9/11, but he did not understand or agree with the decision to go to war in another Muslim country, Iraq. You can hold that view in the United States, said Carney, and not be punished for it. Mehanna believed people in Iraq were right to do whatever needed to be done to get the United States out of their country, just as many people in the United States once thought the Vietnamese people had the same right.

Mehanna was obsessed with classical Islamic texts and Islamic history. He was known by all in his community as a scholar. He went to Yemen not to pursue terrorist training, but to study Arabic in its state sponsored schools. The defense would present the leading American expert on Yemen, who would testify that it’s economic weakness and isolation make its version of Arabic free from the infiltration of other influences, and that it is therefore known all over the world as the source for the most pure Arabic. While the other travelers with Mehanna sought out terrorist training camps, the defense attorney said, Mehanna toured three schools.

When Mehanna returned to the United States he was more outspoken in his beliefs about the United States’ role in Iraq, but he advocated his views independently of any connection to Al Qaeda, protected, he thought, by the Constitution. His very outspokenness, claimed the defense, proved that Mehanna was not part of a secretive conspiracy. Mehanna respected Osama bin Laden because he gave up his personal wealth to aid the fight for Muslim freedom in Afghanistan, an effort supported and praised by Americans from Charlie Wilson to Ronald Reagan. He watched videos, read books, and translated texts because he wanted to understand other points of view, and believed others should have access to those points of view as well. If it is legal to read the texts Mehanna possessed, and to think the thoughts contained within them, the government shouldn’t be afraid of their translation.

Carney concluded by pointing out the facts he believed the government had conveniently neglected to mention. Yes, he said, Mehanna was contacted by Al Qaeda to provide translation, but he didn’t do it. Yes, Mehanna was involved in conversations where others advocated attacks on Americans, but he responded by rejecting those ideas as ridiculous. Yes, he was a member and a moderator of an online forum where jihad was discussed, but he was kicked off of the site for being too moderate. Mehanna’s attorney asked the jury to ask themselves whether the government’s representation of the facts was a fair representation of the truth. The government, he said, will bring forth a series of witnesses who each did something to aid terrorism, and they are all going to talk about how Tarek talked. All of those witnesses have immunity. The Supreme Court has said that it is legal to think the same ideas as Al Qaeda, even to be a member of Al Qaeda, as long as one’s advocacy is independent of Al Qaeda. Americans, Carney concluded, can speak our views, even if it upsets the federal government; that is what makes the United States great, strong, and free.

United States v. Tarek Mehanna continued Friday with the opening of the prosecution’s case.

1Quoted in Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (2007), p. 183.