Notes on a Terrorism Trial – Preventive Prosecution, 'Material Support' and the Role of the Judge after United States v. Mehanna

Abstract

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applying Holder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence — which may show just how much of a “terrorist” the defendant is — are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.”

As for speech issues, there is enough ambiguity in HLP to let lower courts formulate and apply its test differently. HLP emphasizes coordination with a foreign terrorist organization before speech can be criminalized. There is now movement toward a concept of one-way coordination that can turn speech prosecutions into a form of general prevention of potential terrorists.

All of these issues were central to the trial of Mehanna. The Article’s analysis of how the trial court handled the various sentencing and speech issues will increase understanding of them, and highlight the central role of the judge.