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Double standards distort the judicial process

It is a frightening scenario. Nine heavily armed men conduct military-style training in preparation for a terrorist attack involving the bombing of a funeral for the police officer they had killed three days earlier. 

Over a two-year period, a paid FBI informant and FBI agent infiltrate their cell, discuss building bombs and getting explosives and tape their conversations. By the time their homes are raided, they had amassed instructions and material for making bombs, night vision binoculars, machine guns, assault rifles, 148,000 rounds of ammunition, body armor, gas masks, tear gas, knifes and swords. 

Before their trial started, one of their members took a plea bargain, admitting the group “advocated” and prepared for violence against local, state and federal law enforcement.  True, the government’s case was not helped when the informant who received $31,000 to infiltrate the group got arrested for shooting at his wife, but it still seemed like the case against the others would be a slam dunk – right?

Well, it almost certainly would have been if they were Muslims. It is difficult to imagine any judge extending the protection of the First Amendment to taped conversations between Muslims stating that they should “start hunting” law enforcement “pretty soon” and that “it is time to strike and take our nation back so that we may be free again from tyranny.”

But that is what a Michigan federal judge, Victoria Roberts, did on March 27 in the case involving seven members of the Hutaree militia of self-described “Christian warriors.” Throwing out the most serious charges against the four members of the Stone family and their associates, she declared that the case was “built largely of circumstantial evidence” and that the alleged plot to kill a local police officer and then attack his funeral procession is “utterly short on specifics.”

While the prosecution insisted “these individuals wanted a war,” Judge Roberts agreed with the defense attorney William Swor who said that the group’s leader, David Stone, “was exercising his God-given right to blow off steam and open his mouth.” 

In the words of the judge, his “statements and exercises do not evince a concrete agreement to forcibly resist the authority of the United States government. His diatribes evince nothing more than his own hatred for – perhaps even desire to fight or kill – law enforcement; this is not the same as seditious conspiracy.”

At a time when armed extremist anti-government groups may have as many as 100,000 adherents, Judge Roberts’ homage to the breadth of First Amendment protected speech may appear welcome to some and foolhardy to others. But there is no denying that it highlights the chasm between the prosecutions carried out against suspected Muslim terrorists, and the homegrown domestic brand that gave us Timothy McVeigh.

On April 12, in the federal district court in Boston, there will be a sentencing hearing for Tarek Mehanna, convicted late last year on terrorism charges.  From the time he was a teenager, this 29-year old pharmacist from Sudbury was subjected to every kind of surveillance the FBI could muster – secret sneak and peek searches, FISA wiretaps, the seizure of his emails, the use of informants. 

Having spent three years in solitary confinement, he could face decades more in prison after being convicted of plotting to go to Yemen for military training (which he never had), translating classical Islamic texts into English and expressing his views about the invasion of Iraq on websites. He also was taped stating that taking up arms against the US would be a violation of Islam since he lived and practiced his religion here.

Mehanna never had a gun or an explosive. But he did refuse to become an FBI informant, even after being warned that unless he cooperated with the agency they would make his life hell. 

In a striking departure from Judge Victoria Roberts, Judge George O’Toole in the Boston federal district court refused to allow the First Amendment to be introduced in the Mehanna case. He refused to admit an ACLU of Massachusetts brief asking for certain charges to be dismissed on First Amendment grounds, he did not allow defense attorneys to bring up the First Amendment and he did not instruct the jury on what the First Amendment protects. 

While the Hutaree judgment sent the message that core Constitutional values are not to be trifled with, Mehanna’s conviction conveyed this warning: if you are Muslim and criticize US foreign policy, you too can be prosecuted – unless you agree to play the FBI’s game.   

© 2021 ACLU of Massachusetts.