Arraignment and Detention Hearing: Defense’s Argument

November 12, 2009

SOURCE:  TRANSCRIPT OF ARRAIGNMENT AND DETENTION HEARING

Mr. Carney:

The decision before the Court is not an easy one.  If the Court is to be guided by hysteria or fear, then it will stampede into a decision allowing the government’s motion.  But I suggest if the Court is guided by the Rule of Law, by the statutes passed by the Congress as interpreted by the Courts then the evidence supports Mr. Mehanna’s release.  I have submitted a memorandum that’s given Your Honor background about the defendant, and I won’t rehash all of those notes.  But the events of the last few years provide the very best evidence as to whether Dr. Mehanna, he is a doctor based on his graduation from the Mass College of Pharmacy with a pharmacy degree, whether Dr. Mehanna will flee if he is released by Your Honor, and whether if released he would present a danger to the community.

Let’s just take a look at the last few years to put this in context.  Dr. Mehanna was approached on one occasion by the FBI agents who wanted to interview him.  He consented ot the interview and spoke to the agents.  They urged him to become a cooperating informant against individuals in the Muslim community, and he declined to do so.  They were, he was approached a second time by the FBI agents, and again, again urged to become an informant and declined to do so.  At this point now knowing the focus that the FBI had on him, he did not flee.  He did not do anything to obstruct justice.  He did not do anything to present a danger to the community.  He was visited by the FBI on a third occasion in April of 2008.  They confronted him with the fact that they said he had lied to them on a previous occasion about whether his friend, Daniel Maldonado, was in Egypt or in Somalia and that he could and would be charged with a crime if he did not become an informant against the Muslim community.  Dr. Mehanna respectfully declined to do so.  So despite having been told by the FBI that they knew he had made a false statement to them and he would be charged with a crime, he did not attempt to flee.  He did not do something to obstruct justice.  He did not do anything to present a danger to his community.  He retained counsel.  What more American t hing is there to do than seek the protection of the Rule of Law?  Dr. Mehanna completed college.  He got his degree.  During college he worked at Walgreens; he worked at CVS in the community.  He was very active in his mosque and in his local community.  He looked for a job.  The best offer he received was one from the most prestigious hospital in the Middle East where he would go under contract and work in Saudi Arabia as a pharmacist, a country where he would feel that his religion is completely embraced by the community and where he felt he would be comfortable.  The hospital paid for his airline ticket.  Indeed, in his contract says that he could pay for him to fly to Saudi Arabia for his job, and they would fly; they would pay for the ticket when he would come back and visit his parents or visit his friends when he returned to the United States.  He appeared in this court after he was arrested at the airport where he was getting on a plane with his parents.  And after many hearings, this Court decided that there were conditions of release that would ensure that Dr. Mehanna would return to this courtroom.

It is significant to me that if the government says that Dr. Mehanna is such an unbelievable danger to the United States that he has to be locked up, why didn’t they say a darn thing in December of ’08 when he was being let out of this courthouse?  Was he such a danger that they would withhold this information from Your Honor because of some tactical reason?  That they would rather have a dangerous person go out into the community than tell you about all this dangerous stuff that they knew about?  Or was it that they knew that this dangerous stuff would not merit holding him?  And so Dr. Mehanna was released in December of ’08.  Your Honor set very strict conditions.  A notable condition that I have never experienced before was that the government proposed restrictions on Dr. Mehanna’s free speech.  They explicitly proposed to the Court that Dr. Mehanna could not speak to people about cooperating witnesses or say that it was bad to be a cooperating witness or speak about this investigation in that way to members of the public.  If he did so he would be in violation of the terms of your release.  It was an unprecedented term of release in my experience, but I discussed it with my client, and he said that would cause no problem whatsoever.  If that’s what the government insisted that he do, fine he’ll do it because he wasn’t going to do it anyway.  And over the past year where the government says he continues to be involved in this jihad, we have never once had presentation in this court that he is in violation of your order strictly limiting what this man had said.

Did he flee or attempt to flee?  Did he obstruct justice?  Was he a danger to the community over the last almost year that he’s been under your supervision and the supervision of pretrial services?  The absence of any allegation is the answer to that.  He had been under a nighttime curfew, but on occasion the Court has even released him from that.  For example, there was a religious ceremony where people of his faith try to pray all night at a mosque, and we asked that he be relieve dof his curfew, and Your Honor permitted him, and he did not flee.  There was another occasion where he was taking his pharmacy exam which is a two-day exam comparable to our bar exam.  And he asked for permission to be off the curfew, not so that eh was going any place but simply so that he would not be woken up two or three times a night by the automatic calling to verify that he is in his home; and that way he could get a good night’s sleep for his exam, and the Court permitted that.  This window of opportunity would have permitted Dr. Mehanna to flee, and he didn’t; or obstruct justice, and he never did; or present a danger to the community, and he never did.  If one looks at the proffer put forward by the government, the major focus is on the years 2002 to 2006, and they focus on statements made by Dr. Mehanna when he was a college student, people who were friends of his, he thought, who were recording his conversations.  And so that the kind of sharing that one does with friends in college, the exuberance of youth, I can recall distinctly when I was in college in the days of BSDS, and the Black Panthers, and going to see Stokely Carmichael or other people who had come to speak on college campuses and listend to what they say.  And in the youthful idealism believing gee, that’s good.  That’s got to be, that’s a good idea, for going beyond that?  No, not going beyond that.  And their focus on statements he made or postings or emails that he sent while he was in college is the heart of the government’s case here against Dr. Mehanna.

It’s interesting that the prosecutor said that he went on Dr. Mehanna’s blog where there are translations of texts, where there are scholarly articles that he has translated, where he has had videos that were obtained form CNN or Fox News, and he has saved them, and where he supports ideas.  Listening to the prosecutor makes me afraid about where the First Amendment stands in the eyes of this government if this is what he is saying.  If he disagrees that Dr. Mehanna cannot keep CNN or FOX News videos on his website or translate texts, someone who’s assisting me in this case pointed out the irony that one of the texts that the government has focused on was cited by the Secretary of Defense when he went to Afghanistan to support the Taliban in trying to get the Russians out of Afghanistan.  I’m hoping during the trial that they could play for the jury the movie Charlie Wilson’s War to show what the United States did during Afghanistan to support Muslims in trying to get an outside country of Afghanistan, which many Muslims are still trying to get outside countries out of Iraq and Afghanistan and Pakistan.  The fact that he might support those views is what the First Amendment is all about.  First Amendment isn’t about supporting popular speech; it’s about supporting unpopular speech.

But what else has occurred over the last several years that should guide Your Honor?  After Dr. Mehanna was released from this court, by this Court, he tried to get a job.  He was unable to get a job in his chosen profession.  So he did get a job.  He’s been teaching at a private school at a private Jr. High School.  He’s been teaching math, science and religion.  That’s how he has been occupying his time during the day.  There are many letters of support that have been provided to me that I’m going to give to the Court.  Among those letters you will see are letters from his seventh grade students who, on their own, have written letters to Your Honor to tell you about the man who’s been their teacher and how even during religion classes that he teaches, how he always says non-violence is the way to go.  That’s what he is teaching to the young, impressionable minds at the school where he has been a teacher.  That’s what he’s been doing instead of fleeing or obstructing justice or presenting a danger to the community.

Your Honor, our country has an ignominious history about acting in fear.  We showed it when we interned thousands of Japanese during World War II.  We showed it after 9/11 when we rounded up all of the Muslims to question them as suspects in terrorism.  We acted out of fear when a professor at the University of South Florida was indicted on 51 counts of providing support to terrorists.  And the professor when to trial for two months.  The defense rested after the government’s case without calling a single witness.  And the defense counsel, Bill Moffitt, said what this case is about is the First Amendment.  That defendant was acquitted of all 51 charges.  And the reason past we have been turning against fear and back to the Rule of Law, that’s the direction we should go in this case.  The decision Your Honor will make may be the very toughest decision you make in your entire career, this one, in this case on this issue.  Has the government proven to you that if released Dr.Mehanna will flee or obstruct justice or present a danger to the community?  Not only hasn’t the government met its burden of proof, but by the evidence I have presented to Your Honor, I have proven the opposite.

Dr. Mehanna’s terms of release currently can be supplemented in whichever way Your Honor thinks is appropriate.  We’ve suggested some ways, if that would give greater confidence to the Court.  It includes 24-hour house arrest so that he’s not able to leave his home or curtilage.  The government has a concern about his use of the internet.  We’ve suggested that the internet be removed, and we’ll sign a waiver and be able to allow the government or its investigators to confirm that here is no Wi-Fi or other ability to communicate over the internet.  Any other conditions that the government, that the Court wants to set are amenable.  But he should not be held in jail under a 23-hour a day lock-up, which is his current regimen.  He has an incredible amount of support in the community.

This past Sunday I went to the Islamic Center in Wayland at their invitation to speak about his case.  It was packed with standing room only surrounding every one of them in the place because they wanted to hear form me and show support for Dr. Mehanna.  I will be presenting dozens of letters to the Court showing this community’s support.  Not only do you have all of or most of these people in the courtroom, but there are dozens more waiting outside who could not come in.  How often does that happen in this court that there’s such a community outpouring of support?  People who are doctors, lawyers, professors, retail, at–home moms, all coming forward and saying we know he can be released and not flee.  The parents are not just saying that he’s a good person.  They said they will lose their house if he leaves and their life savings if he leaves.  That’s how strongly they support him.

Your Honor, I conclude the way I began.  I urge Your Honor to be guided by the Rule of Law because if Your Honor is guided by the Rule of Law then you will see Tarek Mehanna should be released.  Thank you.