The government alleged that Tarek materially supported Al-Qaeda and “other terrorist groups” by translating and distributing texts and videos intended to inspire others to participate in jihad (Proffer, pp. 9-10). The government, however, provided no evidence that Tarek communicated with members of Al-Qaeda, provided translations to members of Al-Qaeda, or otherwise had contact with or took direction from any members of Al-Qaeda. Further, the government provided no evidence as to the identity of the “other terrorist groups” or their supposed connection to Tarek.
In Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), decided after the defendant was detained, the Supreme Court made clear that agreeing with a terrorist organization–and even advocating for its goals–was not illegal. The Court defined material support as follows:
Providing material support that constitutes “personnel” is defined as knowingly providing a person ‘to work under that terrorist organization’s direction or control or to organize, manage, supervise or otherwise direct the operation of that organization.’ The statute makes clear that “personnel” does not cover independent advocacy: “Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”
“[S]ervice” similarly refers to concerted activity, not independent advocacy. See Webster’s Third New International Dictionary 2075 (1993) (defining “service” to mean “the performance of work commanded or paid for by another: a servant’s duty: attendance on a superior”; or “an act done for the benefit or at the command of another”). Context confirms that ordinary meaning here. The statute prohibits providing a service “to a foreign terrorist organization.” The use of the word “to” indicates a connection between the service and the foreign group. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.
The government focused on Tarek’s alleged translation of 39 Ways to Serve and Participate in Jihad (hereinafter “39 Ways“), (Proffer, p. 10). It is a publicly-available text which was written in 2003 and has been translated by many others. The government’s own proffer suggests that Tarek was uncomfortable with aspects of the text. He told a correspondent who was assisting with the translation that he would prefer not to translate the more “touchy” portions (Proffer, p. 12).
Tarek stated that he hoped the 39 Ways translation would make an impact (Proffer, p. 14). He also said he hoped it would lead to “some real ‘amal’,” (Proffer, p. 13). The Arabic word “amal” means “hope” in English. Many of Tarek’s instant messages indicate what this hope was. Only days after the translation was published, Tarek and his correspondents speak of “dawah,” or the preaching of Islam, of doing a “weekly dawah table…call people to tawheed [monotheism]…EZ…table…books…posters….3 bros…for 2 hours.” Tarek wrote,
“I am in the process…of putting together a flyer…with the purpose of calling people to Islam….I was wondering if…when I’m done with it….I can email it to you…to print out…and hand out at ur university.”
He showed the flyer to his codefendant, Ahmad Abousamra. Tarek’s interaction with Abousamra is telling. ABousamra criticized the flyer as a waste of time. Abousamra was upset that Tarek was focused on spiritual matters and education about Islam. Tarek felt that Abousamra’s approach was
“…just turning people either away from us…or turning them into these psycho-Jihadis…who have this very very narrow minded view of the world.”
It is clear that Tarek’s main preoccupation was to teach others about his faith.
As Holder makes clear, mere speech, even translations, do not meet the definition of material support:
Rather, Congress has prohibited “material support,” which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.