After the 9/11 attacks, the FBI was given expanded powers to pursue terrorists in the United States. Its counterterrorism force grew exponentially. Over the next decade, the number of informants and agents in the field grew to ten times the number deployed during the COINTELPRO days, when the agency launched its now largely discredited program to investigate, disrupt, and destroy groups it saw as threatening to the nation. These operatives have targeted the FBI’s recent list of enemies of the state: al-Qaeda-inspired homegrown extremists, sovereign citizens groups, white supremacists, militias, anarchists, environmental and animal rights groups, Puerto Rican separatists, and lone wolves of any stripe. The FBI counterterrorism mission is to circumvent attacks before they occur, and so controversial sting operations have become a regular means to identify and arrest suspects seen as potentially violent. These operations rely on an FBI agent or highly paid informant soliciting conspiratorial and instructional speech from a suspect, and have led to suspicions that the FBI is engaging in unscrupulous methods. The informants offer themselves as technically adept trainers and explosives experts who talk suspects into bogus plots and engage them in speech that crosses the line into conspiracy and instruction. Under ordinary circumstances, many observers think, these suspects would have neither the means nor the will to carry out terrorist attacks. The statute 18 U.S.C. § 842(p), which bans the teaching or demonstration of a making or use of an explosive weapon, has provided a way of prosecuting suspects based on their conversations about weapons and their collections of popular weapons manuals and videos not linked to any specific act or plan. A provision of the USA PATRIOT Act, 18 U.S. Code § 2339, prohibits “providing material support to terrorists” and allows related forms of speech to be used against defendants in court. Since the laws act to catch persons on pretext, dangerous instructional texts have become key in demonstrating that persons are poised on the verge of action.
Stiff penalties now exist for speech that had been previously tolerated. For example, twenty-one-year-old Emerson Begolly was arrested for “soliciting others to engage in violent acts of terrorism” on the Ansar al-Mujahideen English Forum, where members hold discussion on waging armed jihad. A new influential group of private terror experts see these kinds of forums as brainwashing spaces where “al-Qaeda supporters increasingly tuck their messages into more common rhetoric” and where “rhetorical terrorists” encourage others to “go operational.” Training with an arsenal of assault rifles on his father’s Pennsylvania farm, the deeply troubled Begolly became a web administrator on the forum, urging attacks on police stations, synagogues, trains, daycare centers, and other public sites. Begolly called for “bombs, bullets and martyrdom operations.” A key piece of evidence against Begolly was his link to a bomb-making manual: The Explosives Course by “The Martyred Sheikh Professor, Abu Khabbab al Misri.” The FBI decided to arrest Begolly after this posting. Compiled by the professor’s students, The Explosives Course is a well-designed textbook that discusses laboratory procedures, safety precautions, and the basics of chemistry. Like Johann Most’s Revolutionäre Kriegswissenschaft, it teaches students to make nitroglycerine and explains where to get ingredients from common sources. Professionalized with chemical nomenclature, well-drafted diagrams, and standard laboratory equipment, it is a compendium of more than one hundred years of DIY explosives and explosive devices, from Molotov cocktails to lightbulb detonators, from potassium chlorate to thermite, from nitroglycerine to hexamine peroxide. The Explosives Course offers a cool, more professional repackaging of old content. Like any textbook, it contains no inflammatory threats, just a note that it “is released as a reference to practical Shar’ee work of Mujahideen.” For posting this text with the admonition to use anonymizing software during a download, Begolly was charged under the 842(p) statute for providing bomb-making information with the intent that it be used in a federal crime of violence. This count was dropped during the plea bargain, when Begolly pleaded guilty to solicitation to commit a crime of violence and resisting arrest with a firearm. He received an 81⁄2-year sentence. At the sentence announcement, US attorney Neil MacBride said, “Those, like Mr. Begolly, who solicit others to engage in acts of terrorism will be brought to justice and prosecuted to the fullest extent of the law.”
Begolly is an example of dozens of citizens who have been arrested and imprisoned in recent years for calls to armed jihad. The Brandenburg test, which demands that the speech incite an imminent lawless act, has been steadily eroded as the Department of Justice tries to shut down the discourse it believes is creating “homegrown violent extremists.” Popular weapons manuals and instructional speech are often featured in these cases as evidence of intent to “promote” acts of violence without any specific plans for action or targets. This unevenly applied approach to speech has rapidly evolved and represents a new chapter in the state’s use of popular weapons manuals to purge enemies of the state.
The Agent Provocateur
With the popular weapons manuals as a crucial prop, the FBI has created a theater of terrorism designed to expose a suspect’s allegedly preexisting, culpable mental state—sometimes unconscious—to attack the United States. Many legal scholars have argued that predisposition is poorly theorized and ultimately meaningless, and yet efforts in court to refute predisposition, through notoriously difficult entrapment defenses, have routinely failed in recent terrorism cases. For example, in a well-known case, a small-time drug dealer and Walmart nightshift shelf restocker, James Cromitie, described in court as “desperately poor,” was approached in a mosque parking lot by an FBI informant, Shahed Hussain, posing as a wealthy Pakistani jihadist in the poor, largely African American community of Newburgh, New York. Both were inveterate liars and convicted criminals who had a history of inflating their identities with braggadocio. In an “Arabic accent,” Cromitie introduced himself to Hussain as “Abdul Rehman” and lied that his father was from Afghanistan and that he himself had traveled there. In fact, Cromitie was born in Brooklyn, had no Afghan parentage, and held no passport. Although this conversation was not recorded, Hussain reported that Cromitie had threatened to “do something to America.” Without the FBI verifying these details, it set off an investigation, called Operation Redeye for its use of secret video recording, during which Hussain spent months attempting to talk a very reluctant Cromitie into terrorist acts. For his part, Cromitie talked about his resentment of the government and Jews, which eventually, egged on by Hussain, turned into violent threats. But Cromitie wouldn’t take the bait until he had lost his Walmart job, to which he longed to return. Hussain offered him a BMW, $250,000, a Caribbean vacation, and his own business, a barbershop.
With these incentives, Cromitie enlisted three others in a plot to bomb a Bronx synagogue and Jewish center and fire Stinger missiles at military cargo planes at Stewart Airport. Cromitie was not the mastermind; as the trial judge, Colleen McMahon would write, “I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it, and brought it to fruition.” With his FBI handler, Hussain directed the “Newburgh Four” to fulfill a religious imperative, provided the plan and the targets, drove them on reconnaissance missions (none had the means to own cars), and trained them in how to deploy Stinger missiles and cell phone–detonated bombs. The FBI provided the fake devices. On the way to the crime scene, the defendants were unable to connect the cell phones to the fake explosives, even with Hussain exhorting them with how easy it was. He ended up doing it himself. After putting a bomb in a car outside the synagogue, Cromitie exclaimed that he had forgotten to turn it on. The four were arrested at the scene and charged under several counts, including conspiracy to use weapons of mass destruction.
Despite the defense’s claim of entrapment and outrageous government conduct, a jury found them guilty. The judge argued vigorously against the government conduct in the case but gave the defendants the mandatory minimum sentence of twenty-five years. Although the judge believed the defendants capable of real violence, she hinted at the theatricality of “fantasy” terror operations: “Only the government could have made a ‘terrorist’ out of Mr. Cromitie, whose buffoonery is positively Shakespearean in its scope.” One of the defendants recalled, “We were following along, looking for the money—we was just playing the script.” A suspect in another investigation recognized Shahed Hussain as an informant, and wrote, “I had a feeling that I had just played out a part in some Hollywood movie where I had just been introduced to the leader of a ‘terrorist’ sleeper cell.” Many observers of the Cromitie case questioned whether the defendants had the predisposition and the will to become terrorists or were performing to the design of the informer.
Rejecting the defendants’ appeal, the appeals court parsed the word “design,” as in whether Cromitie and the other defendants had a “design” already in mind to commit a bomb attack. Stating that “design” was “ambiguous” in discussions of predisposition, Judge Jon Newman argued for a special use of “design” in terrorism cases: “In view of the broad range of activities that can constitute terrorism, especially with respect to terrorist activities directed against the interests of the United States, the relevant prior design need be only a rather generalized idea or intent to inflict harm on such interests.” That sufficiently put the “design” in the minds of the defendants, rather than in the informant’s operational invention and technical support (where an ordinary person might put a normative understanding of “design”). In a strongly worded dissenting opinion, Judge Dennis Jacobs wrote, “Wanting to ‘die like a martyr’ and ‘do something to America’ is not a formed design, and certainly not preparation.” Others have argued that in a fearful post-9/11 United States, the police, juries, and judges automatically consider any association with Islam to be a predisposition and design for terrorism, making an entrapment defense very difficult, if not impossible, to win. (Entrapment defenses are difficult in any event.) Terror experts and government officials laud the Cromitie case as a successful intervention in “homegrown violent jihad,” but questions remain as to government’s fairness in its zeal to protect the public.
The courts must out of necessity to win jury convictions simplify the complex processes by which groups are formed and enter into mutual actions. Social theory understands that conversations may solidify groups and move them in certain directions; the introduction of ideas and technologies change behaviors. Technology isn’t innocent in this situation. It doesn’t simply provide a hollow conduit for preexisting impulses and intentions: it contributes to creating them. The old adage “Guns don’t kill people. People kill people” lacks validity, since possession of a gun gives its owner a new capability and identity, a new relationship with the world. The provision of technical instruction and plans, along with tools and devices to enact them, transforms actors. In the parlance of terror experts, it delivers “operational capacity” to culpable minds, but it also changes the very structure, identity, and action of the group: its design and its designs.
Dissenting groups with any historical knowledge understand the transforming influence of an agent provocateur. They would immediately suspect a person who approached them with expertise in weapons and pleasure in violent conversations. Such a person would immediately be known as dangerous, as a potential informer, and cast out. The tactic of sending in an unvetted stranger offering weapons instruction only works with the ignorant and naive. Gary Marx, who wrote a seminal work on the role of the informant in social movements, defined the agent provocateur as someone who “may go along with the illegal actions of the group, he may actually provoke such actions, or he may set up a situation in which the group appears to have taken or to be about to take illegal actions. This may be done to gain evidence for use in a trial, to encourage paranoia and internal dissension, and/or to damage the public image of a group.” Marx argued that the agent provocateur’s role in encouragement and outright entrapment was “illusive,” but wondered whether pursuers create their enemies through such influence and misdirect the group from harmless activities and conversations that might diminish violence. The infiltrating agent has the right hands to direct the plot while the suspect has the wrong hands of the emerging criminal, even though both are involved in the consequent action.
The Power Point of Terror
Spinning fantasies, infiltrating agents gain credibility by offering violent tools and teaching and, if successful, direct the suspect into action. In the Cromitie case, the government did the instructing, but in other cases, the suspects’ possession of instructional texts has featured prominently. With expanding capacities to collect, store, and circulate multimedia texts, the digital libraries of terror suspects and their expert pursuers have become centerpieces of evidence. Courts have struggled with the admissibility of large bodies of texts and videos, some of them very unfamiliar to judges and juries. Government witnesses are often drawn from a pool of civilian terror experts, a tight network of university researchers (mostly in the social sciences), journalists, think tank employees and entrepreneurs. They are highly paid to participate in terror trials, and have what sociologists David Miller and Tom Mills call an “orthodox” view that favors “repressive policies at home.” In recent years, some independent, self-appointed terror experts have established consulting entities (Investigative Project on Terrorism, Counterterrorism Blog, Nine Eleven Finding Answers Foundation, Flashpoint) as repositories of digital texts they deem terroristic, selected through this ideological lens. Because so much of the government’s pursuit of the terrorist threat is classified, these experts provide the public face of knowledge. However, they usually lack specialist or scholarly understandings of the groups they study beyond their prodigious collection of digital materials. Because their reputations and income are based on continually generating the threat, they have a stake in media-worthy convictions of terror defendants. The self-appointed terror experts pursue texts to what they believe are their origins, through degrees of separation, usually stopping at some association with al-Qaeda. Unable to comprehend the complexity of texts in highly mobile digital contexts, the experts pursue them always through their ideological lens. The technique is to gesture toward a vast library of information, some of it allegedly lurking in the “Dark Web,” over which the expert has complete interpretive control, and then choose one or two texts alleged to be representative.
For example, The Mujahideen Poisons Handbook has been used in several cases in Europe and the United States to damn defendants. It was initially announced as having been found on a “semi-official al-Qaeda” or a Hamas website, and described as a “jihadi training manual.” Another rumor alleged that it was “written by the veterans of the 1980s Afghan war.” Soon a terrorism consultant at the United States Military Academy, James J. F. Forest, included it, along with The Anarchist Cookbook, as a “prominent source of operational knowledge” in his book on terrorist training. Neither of these books has ever been connected to a terrorist act. A further absurdity is that even a cursory knowledge of these manuals would show that the online text is a rewrite of Maxwell Hutchkinson’s The Poisoner’s Handbook, published by Loompanics, which carries a variety of folkloric recipes for eliminating “the barbarous and the cruel.” Written in the quaint language of “magick” herbals and illustrated with occult woodcuts, The Poisoner’s Handbook caters to the 1980s’ moral panics about teenage Satan worship. For example, it offers a recipe to convert “attractive scarlet and sable beans for rosary beads” into poisonous agents that will kill “the more religious target” who uses them. The author fantasizes about sending a weaponized rosary to the pope, though no FBI agent ever pursued Hutchkinson. The book most notoriously offers a recipe for ricin using a blender, a coffee filter, a jar, some marbles, castor beans, acetone, and lye. In 2003, a group of young men in a London flat were arrested with twenty-two castor bean seeds and a few handwritten recipes derived from The Poisoner’s Handbook. Tests for ricin in the apartment came up negative, but a misinformed staffer at the British Defense Science Technology Laboratory reported that the poison had been found, creating a public furor as various officials announced the finding of a “highly serious poison” that demonstrated a terrorist capacity for chemical and biological warfare. It took two years for the lab to admit its error. The same testing lab tried out the ricin recipe and found that at best, the product would have killed one person, but only if injected. If ingested, the ricin would have caused only abdominal distress. This was hardly a weaponized substance.
The recipes in The Mujahideen Poisons Handbook were adapted from The Poisoner’s Handbook, updating the types of household equipment to be used and alleging that the author, “Abdel Aziz,” had applied a rudimentary scientific method, carrying out experiments on rabbits. The book offered “esoteric knowledge” from a mysterious “training course” led by one “Breather.” The text mentions jihad and has some words in Arabic, but sounds like a juvenile hoax when the author warns, “Don’t become an over paranoid James Bond figure, especially when you haven’t done anything illegal even!” It is entirely possible that some prankster made up The Mujahideen Poisons Handbook by spicing the Hutchkinson manual with the most demonic forces of the day, Islamists, and a hint of real science. It is breathtaking that The Mujahideen Poisons Handbook has ever been used against a suspect, and demonstrates the ideological drive to fit any text containing certain buzzwords, such as “jihad” and “mujahideen,” into a grand narrative of a relentless evil design.
Evan Kohlmann is a controversial expert who has testified in numerous terrorism cases and provides commentary on NBC News. Kohlmann has, he says, collected an “archive that is approximately three or four terabytes in size. . . . [It] contains records of virtually every single video recording issued by al Qa’ida or other Jihadi movements, every single magazine, every single communiqué, every single official statement.” Though he doesn’t speak fluent Arabic or any other Middle Eastern language, he also claims a registered account on every online forum used by those he deems “violent extremists,” a category in which—like an old Red baiter—he includes “sympathizers” and “fellow travelers.” Even in cases where prosecutors are not linking the defendants to al-Qaeda, Kohlmann inevitably mentions this most recognizable of terrorist organizations. Kohlmann has offered a troubling view that even prayers could be “material support” for terrorism. Defense lawyers have condemned Kohlmann’s typical testimony as unqualified, slanted, sensationalist, prejudicial, and based on nebulous, irrelevant associations. Federal prosecutors continue to hire him and judges to allow his evidence, usually within restricted parameters and despite vigorous protests from defense teams. Asked to examine a volume of materials collected by terror suspects, Kohlmann focuses on one or two texts that are most egregious and representative of the terrorist threat. In an analysis of Kohlmann’s testimony, law professor Maxine Goodman advises that he is “motivated by unfaltering devotion to one big idea” and a “single, central view of the world.” Kohlmann features a few “literary Satans” to simplify the message of an existential evil for the media and the courts.
Just before Christmas in 2004, NBC Nightly News ran an exclusive on a frightening twenty-six-minute video found in a “militant Islamic chat room.” It was entitled “Explosive Belt for Martyrdom Operations.” That night, NBC gave a description of its contents accompanied by suggestive clips, especially alarming since video has a greater emotive power and instructional efficacy then words. The video showed hands arranging ball bearing shrapnel in a suicide vest, which was then used to destroy a mannequin in an experimental blast. The story included a statement by Kohlmann, who explained that it was made for use in Iraq. A month later, the video turned up in a terror investigation of three men in Toledo, Ohio—Mohammad Amawi, Marwan El-Hindi, and Wassim Mazloum. Amawi had gone to Jordan in 2003 to seek insurgency training, planning to fight in Iraq. Unable to find a group that would take him, he returned to Toledo and met an FBI informant, Darren Griffin, known as “the Trainer,” who claimed to be a Special Forces veteran. Amawi solicited the other two men to join a cell, and Griffin offered them training in unconventional warfare, which they eagerly sought. He provided handgun instruction and often watched and discussed videos with them as they translated: one was the video on how to make a suicide vest. Griffin formed a plan to distribute training materials to insurgents in Iraq, and Amawi agreed. He tried to put the suicide vest video on a CD but it failed to transfer. For his part, El-Hindi showed Griffin where to obtain other online videos and photographs of bombs. Griffin flew with Amawi to Jordan, in the plan to distribute the video and other training information to insurgents, but the three suspects were arrested when Griffin’s cover was blown. One of the charges against them was a violation of the material support provision. Amawi was charged under the 842(p) statute for “watching and discussing how to apply the techniques taught in [the suicide vest] video” and for providing Griffin with an electronic file with hundreds of documents, including one on how to manufacture explosives. The trial was slated for March 2008.
The prosecution chose Kohlmann to testify on the defendant’s “voluminous” video, audio, and written materials, including the suicide vest video. He claimed that the suspects’ digital library was second only to his own. In one of his initial reports, he also offered to discuss a document called 39 Ways to Serve and Participate in Jihad. This text was already publicly reviled as dangerous at two congressional counterterrorism hearings in 2007, where testimony from terror experts built a view of al-Qaeda’s infiltration and indoctrination. On two occasions, a US Military Academy terrorism expert argued that 39 Ways is “similar to Marxism” and that mothers use it to “sociaize their children with a Jihadi mindset from an earlier age by reading them bedtime stories of the great Jihadi fighters.” Another Academy expert, Jarret Brachman, testified that al-Qaeda’s online library of three thousand texts was the group’s Mein Kampf. As an example, he used 39 Ways to show how these texts inculcate hatred. He claimed that 39 Ways contains passages urging mothers to show videos of beheadings, provide video games to teach children warcraft, and give them punching bags with the head of Ariel Sharon. (This content doesn’t appear in the at-Tibyan English translation discussed in a moment in the Tarek Mehanna case.) Brachman argued that such texts should be translated and made more available to terror experts to fight al-Qaeda’s messaging. Later, in 2009, Brachman again testified about 39 Ways, implying that it single-handedly “expanded the ways that individuals could promote Al-Qaeda’s ideology and capabilities.” Once a title is offered in congressional hearings, it has already been judged as damning evidence and will inevitably find its way into evidence lists.
The judge in the Toledo terror trial, James Carr, at first agreed with the defendants to exclude Kohlmann’s testimony that the material originated with al-Qaeda, with which none of the group was associated. He disallowed the government from showing Kohlmann’s prepared PowerPoint slides on his textual archive, which featured al-Qaeda but had little to do with the case. Carr wrote, “The risk of very unfair prejudice substantially outweighs any . . . probative value. Few terms have a greater inherent risk of prejudgment than terrorism, terrorist, jihad, and Al-Qaeda.” During the trial, he changed his mind and allowed Kohlmann to testify on an audio recording of the men watching the suicide vest video with a nasheed (chant) that allowed Kohlmann to link it to a jihadist website. As in many of these kinds of cases involving an FBI sting and a digital library of bad texts, the defendants received far short of the maximum sentence possible, life in prison, for terrorist convictions. Amawi received the longest sentence of twenty years.
39 Ways to Serve and Participate in Jihad
In 2013, in another case involving Kohlmann, Tarek Mehanna was accused of lying to the FBI; of traveling to Yemen where he tried, and failed, to join an al-Qaeda terrorist group; and of translating Arab-language materials and putting them on a website of the publisher, at-Tibyan. This website is sympathetic to al-Qaeda and a Salafi sect that advances a violent agenda based on strict fundamentalist readings of sacred texts. Mehanna refuted the accusation that he had sought terrorist training, claiming that he had gone to Yemen to pursue Islamic studies, but was unable to convince a jury or an appeals court of his story. It was the second accusation that drew vigorous public debate. Mehanna’s many defenders claimed that the government could provide no proof that he had communicated with al-Qaeda or participated in a terrorist attack; he was being persecuted solely on the basis of his speech, on being a “keyboard jihadist.” Among the eight hundred government exhibits were forum and chat posts, dozens of “terrorist-related” texts, videos, and photographs, including images of Mehanna at the site of the Twin Towers, holding up an index finger and smiling, and of Mehanna’s tidy desk, surrounded by antique leather-bound books with gilded titles.
Principal to the government’s case was 39 Ways to Serve and Participate in Jihad, which Mehanna had translated and posted to at-Tibyan. An FBI agent on the witness stand read excerpts from 39 Ways, but on cross-examination acknowledged that he didn’t know the author or that he was reading passages from sacred texts. The prosecutor, Aloke Chakravarty, described 39 Ways as “essentially a training manual on how somebody can get ready to personally get into the fight.” He defined material support for the jury: “A way to provide material support is to provide your friends as personnel, or people who might read the translations, might read the propaganda that you put out on the Internet that you want to go fight.” Some outside observers noted that Mehanna might be compared to Axis Sally or Tokyo Rose, pseudonyms for several World War II propagandists, two of whom were famously tried and convicted of treason. (One of the Tokyo Roses, Iva Toguri D’Aquino, was pardoned after two state witnesses admitted that they had been coached by the FBI and perjured themselves.) Treason, however, requires that one “adhere to” and have a purpose to aid the enemy (like being paid by an enemy-owned radio station to spout propaganda), while the material support statute requires only that one know that one is aiding the enemy. Chakravarty justified the inclusion of Mehanna’s reading and viewing material—“a treasure trove . . . of information about Jihad”—as proof that he knew he was supporting al-Qaeda. The prosecutor told the court: “It’s not illegal to watch something on television. It is illegal, however, to watch something in order to cultivate your desire, your ideology, your plots to kill American soldiers, or to help those, as in this case, who were.”
In truth, 39 Ways to Serve and Participate in Jihad is not even “essentially” a training manual. It provides no information about tactics, maneuvers, supplies, combat techniques, targets, or weapons, as is ordinarily found in military and paramilitary training manuals. It has no drawings or photographs of weapons making and deployment, hand-to-hand combat, troop positions, and the other usual fare. It contains no directions in how to commit sabotage. Rather, it is a religious exhortation to battle and martyrdom, a warrior’s code, and a call for others to fund, protect, and support the mujahideen, much of it taken from the Koran and Hadith. There are many other calls to arms in world literature, such as the collection of Japanese texts that explain the samurai way of the warrior, the Bushidō. In an amici curiae filed in Mehanna’s appeal, forty-three academics and editors worried that the definition of material support could criminalize their own work of discussing, translating, and publishing so-called “pro-Jihadi” materials. The brief argued that the government had mischaracterized 39 Ways to Serve and Participate in Jihad, “grossly overstating [its] significance . . . in advancing terrorist aims.” The work, they argued, contained a standard argument about individual duty and religious obligation in “wars of self-defense”: “To discuss the various ways an individual Muslim can contribute to a jihad of self-defense is not a sufficient feature of an Islamic religious text to say that it belongs to ‘al Qa’ida’s messaging’ or ‘propaganda for terrorism.’ If it were, numerous standard texts would be so classified.” Marc Sageman, a formidable terrorism expert with field experience who was witness for the defense, told the court that 39 Ways was “of course not” a training manual. As an example of a training manual, he pointed to the Encyclopedia of Afghan Jihad, an eleven-volume work based in part on US military manuals and found in al-Qaeda training camps. Ali Abdul Saoud Mohamed, once a sergeant in the Special Forces at Ft. Bragg, allegedly compiled it from US military manuals. Sageman reported that al-Qaeda was not successful at recruiting through the Internet; in fact, its numbers had dwindled. In his scholarly discussion of terrorist recruitment, Sageman has maintained that formal religious instruction, such as encounters with religious texts, is not instrumental in creating terrorists. Rather, terrorists are made through social contacts and group dynamics.
Kohlmann was brought in to testify that at-Tibyan was an organ of al-Qaeda and that Mehanna had translated 39 Ways and provided English subtitles for an hour-long video, The Expedition of Shayk Umar Hadid, for al-Qaeda. Yet he could offer no concrete evidence that Mehanna’s original document was from a direct al-Qaeda source. The evidence that Mehanna had been directed by al-Qaeda to disseminate The Expedition of Shayk Umar Hadid was also very weak, yet it gave the prosecution the opportunity to introduce video clips from a slick piece of al-Qaeda propaganda. The Expedition of Shayk Umar Hadid is a highly emotive call to martyrdom. It begins with images of bodies humiliated through torture and riven through war, features thoughtful and even cheerful future martyrs discussing their feelings and motivations, and presents them as media celebrities, heroes, and exalted beings in an afterlife. The prosecution argued that Mehanna was involved in influencing others to jihad. Kohlmann testified that 39 Ways is an al-Qaeda “instructional manual” for “individuals that are self-radicalizing.”
Within this framework, training means recruiting through a library, based on a theory of reading’s irresistible emotional and spiritual appeal, a training of the mind toward a singular purpose through an inevitable interpretation. Contact with 39 Ways is like catching a deadly virus: the appeals judge in the case compared terrorism to the “bubonic plague,” as if it were an infectious agent. This view of reading sees it as directly injecting dangerous ideas into a blank, receptive mind. It is an instrumental view of texts that disregards cognitive processes and the way texts converse with other texts and discourses in the reader’s environment. Reading a proscribed set of texts is not a predictable form of brainwashing. Mehanna described his own radicalization process as a contact with a variety of texts, including Uncle Tom’s Cabin, The Autobiography of Malcolm X, and television news. Without question, reading can be deeply affecting, shaping strong ideas and deep emotions, redirecting and transforming life journeys, creating spiritual and intellectual communities, and engaging the vast expanse of human experience in language. There is no evidence that merely reading a text creates a terrorist or that eliminating certain texts will diminish terrorism. If these texts created terrorists through mental contagion, terror experts with vast libraries would succumb.
In a rigorous cross-examination, the defense attorney argued that Kohlmann’s activities are similar to Mehanna’s: collecting, translating, and disseminating literature and videos. Kohlmann admitted that he had helped the Nine Eleven Finding Answers Foundation (a defunct terrorism consulting firm) post on its website translated statements by Osama bin Laden, videos of beheadings, and The Expedition of Shayk Umar Hadid, with English subtitles, under a “Propaganda” tab. As with previous experts who presented themselves as the right hands for dangerous instructional speech and policed its borders, the new independent terror experts are held above suspicion while being suspicious of most others.
Mehanna’s case was poised as an interpretation of the material support statute that would determine whether political speech, specifically translation, constituted support for a terrorist organization. In a 2010 Supreme Court decision in Holder v. Humanitarian Law Project, the judges had ruled that material support statute forbade speech that “assisted” and was “coordinated” with a designated terrorist organization, with the exception of “individual advocacy.” The question was whether Mehanna’s translations constituted individual advocacy or had assisted al-Qaeda through a form of expertise: translation. The presentation of evidence had combined Mehanna’s travel to Yemen and his translations to prove that he had given material support to al-Qaeda, and the jury had convicted him on every charge. He was sentenced to 17.5 years in prison, far short of the life sentence that might have been applied. Mehanna’s supporters, including lawyers interested in civil liberties in terrorism cases, hoped that the appeals court would rule on whether translation constitutes material support and judge it protected. The appeals court declined the question, asserting that it would not override the jury. Yale law professor Noah Feldman called it “a classic maneuver of judicial avoidance,” and many other lawyers wrote deeply divided opinions on the case variously supporting or condemning the outcome and discussing its relationship to Holder.
A revised and expanded legal apparatus now exists to demonize texts: law enforcement agents collect titles they deem terroristic, federal prosecutors introduce them in court, highly paid government consultants and vigilante spies collect vast digital libraries of literature and serve as witnesses to their evil, juries are immersed in media stories informed by these experts that offer certain texts as the cause of violence, and judges are given opportunities to slap enhanced sentences on their readers, translators, and disseminators. These official entities and their satellites have a Manichean view of reading aimed at punishing those perceived as innately predisposed. Often shrouded in secrecy, they expect us to trust that they are the right hands to host texts, deciding what, when, and why we will read. Nevertheless, terrorism cases have not relied solely on literature and videos. Thus far, defendants have demonstrable deeds that make for convictions, like traveling to the Middle East for training or waving a firearm at FBI agents. The needless introduction in court of voluminous texts, videos, and photographs has a purpose far beyond conviction of the often-lowly defendant. It is an extravagant, oft-repeated spectacle of the state’s condemnation not just of an enemy of the state, but The Enemy in all its textual and visual manifestations. “Training” and “instructional” manuals, however loosely defined, are intended to prove that The Enemy has concrete designs that ground ideology in action. Translation of an al-Qaeda “training” text may lead to prison, but producing one may lead to collateral death by drone attack, as in the case of Samir Khan, editor of al-Qaeda’s online Inspire magazine.
Excerpted from "The Wrong Hands: Popular Weapons and Their Historic Challenges to a Democratic Society" by Ann Larabee. Published by Oxford University Press. Copyright 2015 by Ann Larabee. Reprinted with permission of the publisher. All rights reserved.