Whatever else it may be, the Muslim Brotherhood is an organization that has been studied, contacted — and in some cases advised — by a large percentage of academic researchers, journalists and analysts working on the Middle East. This raises a multitude of questions: What would it mean legally if the Brotherhood were officially designated a Foreign Terrorist Organization (FTO)? Could its files be subpoenaed? Could the publishing of interviews with Brotherhood members be designated as material support? Could speech activities related to defending the ideology and worldview of the Brotherhood, perhaps by contrasting it with more radical forms of jihadist ideology, be subject to prosecution?
The reason for concern lies in a recent dramatic expansion of the scope of “material support for terrorism” statutes. Those statutes have, over the past decade, been a valuable and frequently used tool for prosecuting people suspected of aiding or abetting terrorism. They typically have been interpreted to include financial, organizational or other types of material support.
The statute also criminalizes “expert advice or assistance.” At first glance, this is also not necessarily troubling. If one agrees that it is reasonable to prevent a U.S. citizen from advising al-Qaeda or the Islamic State on how to hide money or build weapons, then the argument follows that there is not an unqualified right to provide “expert advice or assistance” to a terrorist organization resulting from the right to speech or association.
However, the government — with the support of the Supreme Court in Holder v. Humanitarian Law Project (2010) — has defined “expert advice or assistance” more broadly than teaching a designated foreign terrorist organization how to more effectively advance its violent goals. According to interpretations of the law, it is also illegal to provide any organization on the State Department’s list of terrorist organizations (or even just “terrorists” not on the official list) with “expert advice or assistance” even if it aims at peaceful, or even peacemaking, aims. It is conceivably a federal crime for former president Jimmy Carter to advise Hezbollah or Hamas on negotiation tactics in the pursuit of a negotiated peace or some limited human rights aims.
It recently got even worse than that. The Supreme Court upheld the material support statute in Holder v. Humanitarian Law Project on the grounds that it only criminalizes actual expert advice or assistance “directed to, coordinated with, or controlled by foreign terrorist groups” and not mere association with people who may also be members of such groups or “independent advocacy” of viewpoints or causes that may also be shared by terrorist groups. The problem is that in practice the law serves to help criminalize independent speech or mere association with groups on the FTO list.
The implications of this became clear in an important 2011 criminal trial in Boston, U.S. vs. Tarek Mehanna, a trial in which I served as an expert witness for the defense. In this case, a Boston-area pharmacology student was prosecuted on the basis of the material support statute for two broad sets of activities: (1) traveling to Yemen for less than a week, purportedly in search of a training camp to later participate in the anti-occupation insurgency in Iraq, and (2) translating various Islamic legal texts and videos associated with jihad and discussing these issues with local American Muslims. According to the law as defended in Holder v. Humanitarian Law Project, Mehanna’s various speech activities could be criminal only if translation does indeed amount to a kind of “expert assistance” and if it was done in a manner “directed to, coordinated with, or controlled by foreign terrorist groups.”
The case reveals three more expansive possibilities for prosecuting speech. First, much of what Mehanna translated was not “crime-facilitating” material — i.e., material that provides technical knowledge of how to commit a crime. Rather, it was either propaganda or Islamic legal and theological discussions.
Secondly, the law of conspiracy allows the government to prosecute speech that is not “directed to, coordinated with, or controlled by foreign terrorist groups.” The government argued that “providing translation services and distributing material intended to inspire others to participate in violent jihad,” expressing “support for successes of the terrorists and setback for the American and other Westerners, and rejection of moderation, and desire to leave the U.S. and not live among the ‘kuffars,’ ” and “efforts to convince and radicalize others” could all be construed as overt acts in pursuit of a conspiracy to provide support for terrorism — even if there were no contact between the individual and terrorist groups.
Third, the government is permitted to bring into a criminal trial virtually unlimited amounts of private speech about religious and political matters on the grounds that they go to the “state of mind” of a defendant in engaging in other kinds of speech in defense of the cause of “jihad.”
What does this have to do with academics and the scholarly study of the Middle East? Suppose that a university or trade press publishes a translation of a text written or published by or on behalf of an organization connected with terrorism, or by a writer connected with such an organization. If the press has to contact a publisher for rights, or downloads the text from a website associated with an FTO in some way, has it coordinated with an FTO and thus provided it with material support? Suppose the editor or translator of the text has elsewhere expressed political or religious opinions that are critical of the United States or favorable to the politics of organizations that engage in terrorism or are on the FTO list. Can these opinions be used as evidence that his or her intent in producing an academic or trade translation was to conspire to provide material support for a terrorist organization?
Suppose a scholar creates a public website devoted to the study of jihad, political violence and terrorism and posts translations and discussions of material downloaded from the original source websites. Has this person, and their organization, made herself liable to prosecution? Suppose the researcher has to acquire access to a closed website associated with an FTO by getting a username and password (perhaps by lying about their identity and motivation), and thus enters into some kind of cooperation or coordination with that group. Has this person, and his or her organization, now made herself liable for prosecution? Can these opinions be used as evidence that his or her intent in producing the translations and the website was to conspire to provide material support for a terrorist organization?
Such scenarios are very common. It would be a mistake to focus on the narrow question of whether the government “got the wrong guys” in this or that case, or prosecuted people engaged in entirely innocent activities. If the evidence pertaining to speech is used narrowly to demonstrate state of mind and intent behind very specific crimes — such as attempting to travel to a terrorist group’s location or to plan attacks at home — there do not appear to be novel uses of political and religious speech at stake. What is crucial is the development of prosecutorial standards by which declarations of ideological affiliation or affinity are taken as evidence for the state of mind in which people engage in other (not always violent) acts and at most evidence for a conspiracy to provide speech itself as material support.
Now, some may be willing to pay these costs to free speech and association when we are talking about supporters of actual terrorist groups of the likes of al-Qaeda and the Islamic State. But what happens when a group such as the Muslim Brotherhood is added to the FTO list? Any distinction between genuinely violent and all other Islamist organizations is eradicated.
To designate the Muslim Brotherhood a terrorist organization is to potentially designate any NGO, think tank or charity organization with any link to the broad Islamist movement as illegal. Not only does this put at risk of prosecution all such nonviolent associations, but it also risks potentially any independent scholars or journalists who provide them even with the assistance of defending or propagating their views.
Andrew March is an associate professor of political science at Yale University and an associate professor (adjunct) of law at Yale Law School.