What is the “material support” he allegedly gave?  He produced and uploaded a 5-minute video to YouTube featuring photographs of U.S. abuses in Abu Ghraib, video of armored trucks exploding after being hit by IEDs, prayer messages about “jihad” from LeT’s leader, and — according to the FBI’s Affidavit — “a number of terrorist logos.”  That, in turn, led the FBI agent who signed the affidavit to assert that ”based on [his] training and experience, it is evident that the video . . . is designed as propaganda to develop support for LeT and to recruit jihadists to LeT.”  The FBI also claims Ahmad spoke with the son of an LeT leader about the contents of the video and had attended an LeT camp when he was a teenager in Pakistan.  For the act of uploading that single YouTube video (and for denying that he did so when asked by the FBI agents who came to his home to interrogate him), he faces 23 years in prison.

Let’s be very clear about the key point: the Constitution — specifically the Free Speech clause of the First Amendment — prohibits the U.S. Government from punishing someone for the political views they express, even if those views include the advocacy of violence against the U.S. and its leaders.  One can dislike this legal fact.  One can wish it were different.  But it is the clear and unambiguous law, and has been since the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had publicly threatened violence against political officials in a speech.

In doing so, the Brandenberg Court struck down as unconstitutional an Ohio statute (under which the KKK leader was prosecuted) that made it a crime to “advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”  Such advocacy — please read the part in bold — cannot be a crime because it is protected by the First Amendment.  The crux of the Court’s holding: ”the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force“ (emphasis added; for more on the First Amendment law protecting this right to advocate violence, see my discussion here).

To put this less abstractly, and as I’ve noted before, a person has — and should and must have — the absolute free speech right to advocate ideas such as this:

For decades, the U.S. Government has been engaging in violence and otherwise interfering in the Muslim world. Hundreds of thousands of innocent Muslim men, women and children have died as a result. There is no end in sight to this American assault on the Muslim world and those of its client states. Therefore, it is not only the right, but the duty, of Muslims to engage in violence against Americans as a means of self-defense and to deter further violence against Muslims. That is the only available means for fighting back against the world’s greatest military superpower. The only alternative is continuing passive submission to this onslaught of violence aimed at Muslims. 

One may find that idea objectionable or even repellent, but does anyone believe that someone should be prosecuted for writing that paragraph?  Anyone who would favor prosecution for that doesn’t understand or believe in the Constitution, as those ideas are pure political speech protected by the First Amendment, every bit as much as: the climate crisis now justifies violent attacks on polluting corporations; or capitalism is so destructive that the use of force in service of a Communist Revolution is compelled; or “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” (Brandenberg); or such is the tyranny of the Crown that taking up arms against it is not merely a right but the duty of all American patriots (The American Revolution).  The Jerusalem Post just fired one of its columnists, a Jewish leftist who wrote that Palestinian violence against Israel is ”justified” because they have the “right to resist” the occupation; is he guilty of a crime of materially supporting Terrorism?  Should Ward Churchill, widely accused of having justified the 9/11 attack (or Pat Robertson and Jerry Falwell, who did the same) have been indicted?

Judging from the description of Ahmad’s video in the FBI Affidavit (Ahmad’s YouTube account has been removed), the video in question does not go nearly as far as the clearly protected views referenced in the prior paragraph, as it does not explicitly advocate violence at all; indeed, it appears not to advocate that anyone do anything.  Rather, the FBI believes it is evocative of such advocacy (“designed as propaganda to develop support for LeT”), which makes this prosecution even more troubling.  Apparently, if you string together video and photographs (or words) in a certain way as to make the DOJ think that you’re implicitly trying to “develop support” for a Terrorist group — based on the political ideas you’re expressing — you risk decades of imprisonment.  Is it possible to render the ostensible right of “free speech” more illusory than this?

This case is not an aberration; as indicated, prosecuting Muslims for pure political speech is an increasing weapon of the DOJ.  In July, former Obama OLC official Marty Lederman analyzed the indictment of a 22-year-old former Penn State student for — in the FBI’s words — “repeatedly using the Internet to promote violent jihad against Americans” by posting comments on a “jihadist” Internet forum including “a comment online that praised the [October, 2010] shootings” at the Pentagon and Marine Corps Museum and ”a number of postings encouraging attacks within the United States.”  He also posted links to a bomb-making manual. 

Regarding the part of the indictment based on “encouraging violent attacks,” Lederman — who, remember, was an Obama DOJ lawyer until very recently — wrote: it “does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection under the Brandenburg line of cases.”  As for linking to bomb-making materials, Lederman wrote: ”the First Amendment generally protects the publication of publicly available information, even where there is a chance or a likelihood that one or more readers may put such information to dangerous, unlawful use.”  Lederman’s discussion of the law and its applicability to that prosecution contains some caveats (and also raises some other barriers to these kinds of prosecutions), but he is clear that the aspect of the indictment based on the alleged advocacy and encouragement of violence in the name of jihad “would appear to be very vulnerable to a First Amendment challenge.”  That’s government-lawyer-ese for: this prosecution is attempting to criminalize free political speech.

Perhaps the most extreme example of this trend is the fact that a Pakistani man in New York was prosecuted and then sentenced to almost six years in prison for doing nothing more than including a Hezbollah news channel in the package of cable channels he offered for sale to consumers in Brooklyn.  On some perverse level, though, all of these individuals are lucky that they are being merely prosecuted rather than targeted with due-process-free assassination.  As I documented last month, that is what is being done to U.S. citizen Anwar Awlaki due — overwhelmingly if not exclusively — to the U.S. Government’s fear of his purely political views. 

If the First Amendment was designed to do anything, it was designed to prevent the government from imprisoning people — or killing them — because of the political ideas they promote.  Yet that is clearly what the Obama administration is doing with increasing frequency and aggression.

There is one last point that bears emphasis here.  Numerous prominent politicians from both political parties — Michael Mukasey, Howard Dean, Wes Clark, Tom Ridge, Ed Rendell, Fran Townsend, Rudy Giuliani, and many others — have not only been enthusiasticaly promoting and advocating on behalf of a designated terrorist organization (MEK of Iran), but they have been receiving substantial amounts of cash from that Terrorist group as they do so.  There is only one list of “designated Terrorist organizations” under the law, and MEK is every bit as much on that list as LeT or Al Qaeda are.  Yet you will never, ever see those individuals being indicted by the Obama DOJ for their far more extensive — and paid — involvement with MEK than, for instance, Ahmad has with LeT.  That’s because: (1) the criminal law does not apply to politically powerful elites, only to ordinary citizens and residents (indeed, many of those MEK-shilling politicians cheer on broad and harsh application of the “material support” statute when applied to others), and (2) MEK is now devoted to fighting against a government disliked by the U.S. (Iran), so they’ve become (like Saddam Hussein when fighting Iran and bin Laden when fighting the Soviet Union) the Good Terrorists whom the U.S. likes and supports.

Nonetheless, MEK remains on the list of the designated Terrorist groups, and lending them material support — which certainly includes paid shilling for them — is every bit as criminal (at least) as the behavior in the above-discussed indictments.  As usual, though, “Terrorism” means nothing other than what the U.S. Government wants it to mean at any given moment.  The evisceration of the rule of law evidenced by this disparate treatment is as odious as the First Amendment assault itself.

UPDATE:  A couple of commenters, such as abhisaha, argue that the government’s prosecution of Ahmad has been made more plausible by last year’s Supreme Court decision in Holder v. Humanitarian Law (which I wrote about, among other places, here, when I interviewed the plaintiffs’ counsel).  It’s certainly not an unreasonable point, except (1) that case did not overrule or purport to overrule Brandenberg, which remains good law; and (2) Holder itself emphasized that “pure speech” remains protected.  It did, however, allow that one “may not coordinate the speech with the groups on the terrorist list,” though whether Ahmad did that is far from clear, as opposed to the MEK advocates, who quite likely would be found to have done so virtue of those payments (nor would it have any bearing on the indictment discussed by Lederman).  In any event, Holder is easily one of the worst free speech decisions in several decades, and the fact that prosecutions are now being brought that hinge on a broad reading of it only underscore how relentless is the free speech assault from the Obama DOJ (which, naturally, vigorously advocated for the broad “material support” interpretation upheld in Holder). 

The lawsuit seeks to ensure that everyone can continue to receive the benefits of competition, said Cole.

AT&T said it would fight and ask for an expedited court hearing “so the enormous benefits of this merger can be fully reviewed.” The company said the government “has the burden of proving alleged anti-competitive effects, and we intend to vigorously contest this matter in court.”

Four nationwide providers — Verizon, AT&T, T-Mobile and Sprint — account for more than 90 percent of mobile wireless connections.

T-Mobile has been an important source of competition, including through innovation and quality enhancements such as the roll-out of the first nationwide high-speed data network, according to Sharis Pozen, acting chief of Justice’s antitrust division.

Mobile wireless telecom services play an increasing role in day-to-day communications, with more than 300 million smart phones, data cards, tablets and other mobile wireless devices in use.

Deutsche Telekom, the owner of T-Mobile, had no immediate comment.

AT&T and T-Mobile compete nationwide, in 97 of the largest 100 cellular marketing areas, according to the suit filed in U.S. District Court in Washington.

It says AT&T’s acquisition of T-Mobile would eliminate a company that has been a competitive factor through low pricing and innovation.

Federal Communications Commission member Michael Copps, a Democrat and a staunch opponent of industry consolidation, said that he shares “the concerns about competition and have numerous other concerns about the public interest effects of the proposed transaction, including consumer choice and innovation.”

Democratic Sen. Herb Kohl of Wisconsin, who heads the Senate Judiciary subcommittee on antitrust, competition policy and consumer rights, said the suit was an effort to protect consumers “in a powerful and growing industry that reaches virtually every American.”

The suit used some of T-Mobile’s own documents describing its role in the market to explain why the merger shouldn’t take place. In those documents, the company calls itself “the No. 1 challenger of the established big guys in the market and as well positioned in a consolidated 4-player national market.”

T-Mobile said its strategy is to attack other companies and find innovative ways to overcome the fact that it is a smaller company.

T-Mobile “will be faster, more agile and scrappy, with diligence on decisions and costs both big and small,” one company document said. “Our approach to market will not be conventional, and we will push to the boundaries where possible.”

The suit also says the anti-competitive problems a merger would cause cannot be overcome by regional companies.

Regional companies lack national networks, so are limited in their ability to compete with the four national carriers, the lawsuit states.

As the transcript of Drake’s sentencing hearing published by Secrecy News reflects, Judge Richard Bennett of the U.S. District Court for Maryland was infuriated by two aspects of the DOJ’s conduct: (1) after the Bush DOJ executed a search warrant of Drake’s home in 2007, the Obama DOJ – 2 1/2 years later — finally indicted him, meaning he had to live with that cloud of criminal uncertainty over his head for that outrageously lengthy period of time; and (2) despite dropping all of the serious charges right before the trial was about to begin, the DOJ demanded that Drake be forced to pay a $50,000 fine as “a deterrent” (on top of the tens of thousands of dollars he spent in legal fees until he had no money left and had to use public defenders, as well as the fact that he was five years away from earning a federal pension when he was fired and ended up working at an Apple Computer store to support his family); to justify the requested fine, the prosecutor cited a $10,000 whistleblowing prize Drake was awarded earlier this year.

As for the first issue, the court condemned what it called the “extraordinary position taken by the government, probably unprecedented in this courthouse” of dropping the whole case on the eve of trial after “an extraordinary period of delay.”  Judge Bennett added:  ”I find that unconscionable.  Unconscionable.  It is at the very root of what this country was founded on against general warrants of the British.”  As for the second issue, the court reviewed the difficult circumstances of Drake’s childhood (he was raised in poverty and sent himself to school with risky military service), his complete lack of any prior criminal record, and — most of all — the multiple ways in which the failed prosecution destroyed his life (“the financial devastation wrought upon this defendant”), and flatly refused to impose any fine at all, explaining:  ”I’m not going to add to that in any way.”

What is most notable about this hearing is that the prosecutor candidly described not only his reasons for wanting a substantial fine imposed on Drake, but (without his saying so) also the motive for the Obama DOJ’s broader war on whistleblowers: namely, an attempt to send a “message” of intimidation to future would-be whistleblowers (click on image to enlarge):

Yet Judge Bennett — who, as a Bush 43 appointee, is presumably not overly sympathetic either to criminal defendants generally or national security leaks in particular — was having none of that.  He first explained that he had never seen prosecutorial delays as extreme as the one in this case (accounted for by the fact that the Bush DOJ had apparently decided not to prosecute Drake, but the Obama DOJ then proceeded):

Judge Bennett then eloquently explained that the DOJ already destroyed Drake’s life, even though it ended up convicting him of nothing other than a minor misdemeanor:

That, of course, is the real point here.  Drake’s leak involved no conceivable harm to national security, but did expose serious waste, corruption and possible illegality.  When Drake was indicted back in April, 2010, I wrote at the time: ”the more I think about this, the more I think this might actually be one of the worst steps the Obama administration has taken yet, if not the single worst step — and that’s obviously saying a lot.”  The effect of prosecuting Drake with multiple “espionage” counts, threatening him with decades in prison, and financially ruining him is clear: to frighten future whistleblowers into silence, and thus enable the government and the National Security State to do whatever it wants free of one of the only true checks it has.  That’s what makes Obama’s War on Whistleblowing so pernicious.

The second defeat Obama’s whistleblower war suffered occurred in the prosecution of former CIA officer Jeffrey Sterling, who — like Drake — allegedly leaked information that exposed serious ineptitude but entailed no national security harm.  As I wrote about several times, the Obama DOJ was seeking to force New York Timees reporter James Risen (to whom Sterling is accused of leaking) to testify about his source.  But yesterday, U.S. District Court Judge Leonie Brinkema quashed the DOJ’s subpoena, ruling in a decision (not yet public because it’s now undergoing a classification review) that Risen need only testify to affirm the accuracy of what he wrote (which he had long ago offered to do).

These events demonstrate how legally baseless are the Obama DOJ’s intimidation efforts, yet their rejection in court does not mean they have not succeeded.  As I wrote about in the context of the Risen subpoena:

But for anyone who is engaged in meaningful dissent from and challenge to government officials — the Jim Risens and other real investigative reporters, the Thomas Drakes and other whistleblowers, the WikiLeaks supporters, the Midwest peace activists — these prosecutions and these ever-expanding surveillance, detention and even assassination powers are inevitably intimidating. Regardless of how those powers are used or even whether they are, they will, as Risen put it, have “a chilling effect” on the exercise of core freedoms.

Despite being largely vindicated, Thomas Drake’s life was all but destroyed, while Jim Risen spent years facing the prospect that he’d have to go to prison in order not to reveal his source.  That climate of fear aimed at those who expose government wrongdoing is the prime outcome, if not the prime goal, of the Obama administration’s war on whistleblowers.

* * * * *

Here is an issue that needs a lot more scrutiny: Craig Murray, the former British Ambassador to the U.N., and Justin Raimondo, both superbly examine the potential help received by accused Oslo attacker Anders Behring Breivik from the network of Muslim-hating far-right activists.  I summarized one aspect of their excellent arguments here (Geller’s deletion of the reference to “stockpiling weapons” in Norway described there occurred this month, apparently in the last 24 hours).  In an age where Muslims are swept into intense law enforcement investigations and even prosecutions for even the most tenuous links to those who commit violence, the seemingly pervasive indifference to Breivik’s possible support network is revealing indeed.

UPDATE: Risen emailed me the following this morning about his sweeping victory:

This is an important victory for the First Amendment, and for the freedom of the press in the United States. Some people don’t seem to understand the connection between the ability of journalists to protect their confidential sources and a free press. But if whistleblowers in government, in corporations, and elsewhere in society can be hounded and persecuted, and if the Justice Department is able to use its power to turn reporters into informants, then investigative journalism in America will surely wither and die. The First Amendment will have lost its meaning.

That seems to be not a bug, but a feature — the primary one — of the Obama war on whistleblowers.

The laws, which marginally differ from state to state, require that voters will have to bring photo ID — for the most part government issued — to the polls next year.

Stricter voter ID requirements at the polls have been passed by Republican-controlled state legislatures claiming to promote honest elections. Democrats, alongside groups including the NAACP, have called foul on the new laws, arguing they disenfranchise minorities, students, the poor and disabled (for the most part, groups with Democratic voting tendencies).

As the letter to the DOJ states:

Approximately 11 percent of voting-age citizens in the country — or more than 20 million individuals — lack government-issued photo identification. We urge you to protect the voting rights of Americans by using the full power of the Department of Justice to review these voter identification bills and scrutinize their implementation.

The Voting Rights Act vests significant authority in the Department to ensure laws are not implemented in a discriminatory manner… [T]he Department should exercise vigilance in overseeing whether these laws are implemented in a way that discriminates against protected clauses in violation of Section 2 of the Voting Rights Act.

The Voting Rights Act specifically bans state laws that disproportionately impact minority voters. Democrats and their allies argue that the requirement of stricter forms of voter ID, especially government issued ID, falls well within this category, since the majority of the 11 percent of voting-age individuals who lack such identification are minorities.

NAACP President Benjamin Jealous and former President Bill Clinton have likened the new restrictions to Jim Crow laws.

“There has never been in my lifetime, since we got rid of the poll tax and all the Jim Crow burdens on voting, the determined effort to limit the franchise that we see today,” said Clinton earlier this month.

Republicans in favor of the stricter voter ID requirements insist election fraud is their only concern. However, in Wisconsin, for example — a state where some of the strictest voter requirements have recently been signed into law — there’s evidence of calculated party politics at work.

After signing in a new voter ID law, Wisconsin Gov. Scott Walker attempted to shut down around 10 DMV offices in the state — the very sites where required IDs can be procured. State Democrats have noted that offices targeted for closure fall within areas with strong Democratic voting bases, while in traditionally Republican areas Walker’s administration is pushing to extend DMV office hours.

And voter fraud is not even a big problem: A Brennan Center for Justice study found that 44 one-millionths of one percent of votes are cast by people who commit voter fraud.

Watch Stephen Colbert consider Republican concern for voter fraud below: