It is clear based on the government’s proffer and a review of the evidence provided that the prosecution is based on speech, specifically political comments made by Tarek in 2006. These statements are the essence of free and protected speech under our constitution. The government has yet to answer the major question in this case: What did Tarek Mehanna do? Speech alone should not be used to detain someone under the onerous conditions that Tarek is subject to. Tarek has proposed conditions of release, described below, and is prepared to abide by whatever conditions the Court concludes are appropriate.
Summary of Argument
The government relied virtually entirely on its proffer on instant messages written by Tarek and others in 2006. The instant messages reveal that Tarek exercised his right as an American to oppose U.S. military operations in the Middle East and to criticize what he viewed as the oppression of Muslims in the United States. He considered Muslims the world over to be his brothers and sisters, and he was hurt when they were hurt by the United States and other armed forces. But this is not the issue before this Court.
The questions before this Court are: (1) Whether Tarek Mehanna is a danger to the community and (2) whether he would flee because of the charges that have been brought against him. The conduct of both Tarek and the government leaves no doubt that the answers must be “no.” It must be emphasized that in its proffer for detention, the government relied entirely on conduct that Tarek engaged in in 2006. Knowing what Tarek was saying then, the government allowed this so-called dangerous man to remain free to “flee” or “harm’ for over two years, arresting him only in November 2008. Despite this knowledge, the government’s 2008 motion for detention alleged only a risk of flight, not danger. The government chose not to allege that Tarek was a danger to the community and instead facilitated the release of someone they now claim is “dedicated to violent jihad” and “part of the worldwide terrorist conspiracy.”
The government first approached Tarek in 2006 and asked him to become an informant or face the very charges he faces now. When he refused to do so, he was arrested and charged with making false statements. Thereafter, Tarek remained free for almost a year after his release on bail until his second arrest. During that time, he asked to be temporarily relieved of his bail conditions numerous times, and the government never voiced any opposition to the relaxation of his bail conditions, despite their present claim that he is a threat and a risk of flight. In fact, Tarek assiduously abided by the terms of his bail conditions, as acknowledged by Pretrial Services. During his release prior to his second arrest, a period of approximately one year, Tarek twice asked to temporarily suspend his nightly curfew and eventually the curfew was permanently altered to allow him to work. Pretrial services supported Tarek’s proposed changes and the United States Attorney either assented to them or requested—not demanded—nominal assurances that Tarek would follow his proposed conditions. The court never denied Tarek’s motions to amend his conditions of bail, and he always complied with the terms set by the court.
The Assistant U.S. Attorney said that Tarek had not complied with his conditions of release, that he had committed a federal offense including continuation of his crime. This crime, stated the attorney, was posting religious and other documents on his website. The Assistant U.S. Attorney submitted no evidence of this continuing crime to the court, and the government has not charged Tarek Mehanna with any continuing conduct.
The reason is simple: Tarek is a law-abiding citizen who respects the rule of law. He has always done so, and, if released, will continue to do so.
A second and increasingly urgent reason for releasing Tarek is his inability to meaningfully review the discovery and discuss his defense with counsel.
If Tarek Mehanna is not released on bail, his counsel will not be able to provide him with the effective assistance of counsel.
The discovery seen in this case to date includes over two thousand pages of instant messages, thousands of documents of all sizes, hundreds of hours of audio recordings, hundreds of still images, video files, and emails, and six hard drives containing immense amounts of data.