In 2008 and again in 2009, the government arrested Tarek, respectively for charges of giving a false statement to an FBI agent, and then for a number of much more serious terrorism-related charges. Let’s take a closer look at the circumstances of these events, because Tarek’s attorneys claim that he was arrested as reprisal by the FBI for his refusal over the period between 2004 and 2008 to collaborate with them as an undercover informant.
The arrest warrant acquired by the FBI that led to their arresting Tarek in Oct 2009 was not issued in the conventional manner, because no crime had been committed. The FBI had to petition the attorney general, and even then the official affidavit and Proffer explicitly state that no new evidence was collected post-2007; this means that from mid 2007 up to his second arrest in October 2009, nothing new should have emerged to change the severity of his charges in 2009 over those in 2008. Recall that his release in 2008 on $1.25 million bail was related to a charge of making a false statement to a federal agent. A year later in 2009, however, despite no new evidence the FBI went through a lot of trouble to acquire another arrest warrant. Perhaps the new and more severe charges arose after deeper analysis of the pre-2007 investigative findings? Well, they’ve been following him since 2005, leaving them plenty of time to analyze whatever evidence has been aggregated. Additionally, several of the FBI computer forensics experts called to the witness stand by the prosecution indicated that their involvement with analyzing the evidence began in March 2011, or even later in June 2011. This is extraordinary, given that Tarek has been detained in solitary confinement for nearly 2 years by the same dates the FBI special agents indicate they BEGAN analyzing his computer.
And so, 2008 Tarek is only charged with a static false testimony charge linked to a trial unlikely to go anywhere, while in 2009, despite no new evidence, he is charged with much more substantial charges of conspiring to provide material support. What discovery prompted the FBI to make the leap from “false testimony” to “conspiracy to provide material support to terrorism” (plus the other current charges), if the FBI confirmed already he did not do anything new? Bear in mind, he was arrested in October 2009 and his trial has only started as of last week; this means he has been in solitary confinement without being found guilty of any charge for over 2 years.
What makes this very interesting is the manner in which Mehanna’s actual speech set him apart from the image the government has labored since the first day of his 2009 arrest to establish of him. The government has remained fairly textbook with respects to terror cases, presenting Tarek as a loser and social outcast who presumably recognized extremist Islamic ideology as a means of acquiring an identity, leading him to become a wannabe jihadi, a “keyboard jihadi” (to coin an up and coming buzzword from the media), rejected from participating in violent jihad overseas, failed to coordinate a jihadi operation here in Massachusetts, and the list goes on and on. Ironically, the same speech and chat logs that the government intended to use to prove these allegations were proven by the cross-examination to exonerate and vindicate his ideology.
Remember that Tarek’s attorneys claim that he was arrested in 2008 and again in 2009 only because he refused to become an FBI informant as part of the FBI initiative that has historically come under fire numerous times for the abuse of its handling and the misconduct of its informants. Put that claim aside for a moment and ignore the FBI’s repeated advances between 2004 and 2008 to pressure him into collaborating with them. If we now take a closer look at Tarek’s 2009 arrest,in the absence of informant recruitment theory as the rationale for their interest in him, the inconsistencies are suddenly magnified and they only continue to aggregate, because now, where is the basis for arresting him at all? Let’s explore this more deeply.
During the press conference held on the day of his arrest, the FBI alleged that Tarek had plotted to shoot shoppers at a shopping mall, and yet there are no charges relating to this. Nor has the prosecution has never brought this allegation up in the courtroom. The television news media broadcasted this story all across the nation. Bear in mind that the day before he was arrested, he was only being charged with a false testimony charge–not all that exciting, not an emotional hot button that can be leveraged with a jury. The day he was arrested in 2009, he had done nothing beyond that which spurred his 2008 indictment for false testimony. Why the new charges? Why the arrest, despite his perfect record of compliance with the mandatory curfew between 2008 and 2009?
What Tarek was continuing to do was to operate his blog and to participate in discussion forums and to publish articles and translations. The prosecution has been forced to work with these boundaries to find some means of rationalizing the fact that he had been arrested and imprisoned in isolated confinement (recognized as torture by the international community) without being told what crime he had been committed. With no new evidence to work with and the old evidence barely entertaining a false testimony charge, the government had to find a creative means of prosecuting Tarek in order to make an example of him for refusing between 2004 and 2008 to collaborate as an undercover informant for the FBI. With no actions to charge Tarek with, how could Tarek’s 2 year imprisonment in solitary confinement be rationalized to the public? Instead of losing face by knowing when it has hit a wall, the government has instead chosen to respond by its inability to prosecute Tarek based on actions by crossing into extraordinarily dangerous new territory and charging him for having criminal thoughts.
For the benefit of the reader, the notion of criminal thoughts means that if you disagree with the government you can be charged with having a seditious or terrorist ideology. Notwithstanding the impossibility of the government knowing what takes place within the human mind, much less the fact that sociology and psychology have established that the way one person interprets something differs from how another person interprets it, the First Amendment is explicitly intended to protect American citizens from being prosecuted and from being persecuted based on what takes place in their minds. Tarek’s case is so controversial because it constitutes a departure from that as a paradigm shift in the “War on Terror.”
In the following post, we will explore how well the government has fared in getting the jury to drink the Koolaid.