Narrative is everything. For every isolated free-floating fact there is likely to be an Official Narrative, or perhaps more than one, into which it fits neatly (or has to be shoehorned). The number of sign-ups for Obamacare is one of a myriad I could mention: does it prove the overwhelming success of the law (the Administration narrative) or is it a lie/ a meaningless statistic because people are not paying the premiums/ or merely proof that government has bullied people into taking insurance they don't want (all of which have been mentioned in support of the Republican Counter-narrative)?
I am thinking about Narratives at the moment because a jury in a federal criminal trial in my town, New York City, has just convicted a guy named Abu Ghaith of conspiracy. Abu Ghaith is a cleric and Bin Laden's son in law.
The Official Narrative is simple, and rather convincing as far as it goes. Again, it is the Obama administration's narrative, and says something like this: Here is your proof we don't need Guantanamo. We got hold of this guy and brought him to New York and quietly tried him and obtained a conviction in a court of law while giving him every procedural protection, and nobody blew up New York City or killed anyone to free him. We didn't have to torture him or intern him on our isolated Cuban military base or try him before some embarrassing puppet military commission. Instead, we lived up to our own official standards, can again look in the mirror without feeling ashamed, and hold up our heads as a nation of laws before the rest of the world, etc.
I strongly support the closure of Guantanamo, and therefore am comfortable with the Official Narrative, up to a point. But there is a separate, disturbing element in the Abu Ghaith trial which the Official Narrative ignores. Abu Ghaith appears to have been convicted solely for making statements that, if they had been made by an American within our borders, would be unequivocally protected by the First Amendment.
The prosecution failed to prove that Abu Ghaith had prior knowledge of any terrorist attack. They didn't try to prove that he carried explosives, designed or built suicide bombs, spotted targets or planned any killings. Here are some examples of the unwittingly revealing prose that has been used in the Official Narrative to describe what Abu Ghaith was accused of and convicted of doing.
On the day Abu Ghaith was arraigned more than a year ago, the New York Times reported: "Justice Department officials described him as a propagandist." (March 9, 2013) The article quoted the indictment: Among other things, Abu Ghaith urged others to swear allegiance to Bin Laden, spoke on behalf of and in support of Al Qaedas mission, and warned that attacks similar to those of Sept. 11, 2001, would continue.
Did no-one actually notice that each of these statements, if made by an American standing on a bench in Union Square, would be squarely protected by the First Amendment?
Someone did notice: the government. In an article on the eve of trial, the Times said: "In its filing, the government also asked that the defense be prohibited from arguing before the jury that Abu Ghaiths speeches after Sept. 11, 2001, in which he endorsed the attacks and promised more of them, were protected under the First Amendment." (March 5, 2014) Because of the paucity of coverage, I am not sure if this motion was granted. A Google search on "Abu Ghaith First Amendment", after this result, produces only a few bloggers and commenters wondering about the issue and some irrelevant results.
What is the worst thing Abu Ghaith was accused of saying? Well, the most disturbing quote that obtained the widest currency was made in a video after 9/11: "There are thousands of young Muslims who look forward to die for the sake of Allah. The storm of airplanes will not stop." http://www.reuters.com/article/2014/03/11/us-binladen-soninlaw-trial-idUSBREA2A00V20140311
Talk is cheap and in fact, as we all know, there was no storm of airplanes, so it was an empty threat. Let's do a minor thought experiment and imagine that these exact words were used, not by an Arab speaking from Afghanistan, but by a fellow named Smith speaking in Times Square, who then was arrested. His attorney (and I would eagerly volunteer for that role) would of course rely completely on First Amendment protection for unpleasant statements (because if the Constitution doesn't protect hateful and disturbing language, what exactly does it protect?)
It would be a winning First Amendment defense. The closest the prosecution could come to arguing a First Amendment exception would be that the speech constituted a "true threat" under U.S. v. Watts, a 1969 Supreme Court case involving an anti-Vietnam war protestor who said, " If they ever make me carry a rifle the first man I want to get in my sights is L. B. J." The Supremes held that the speech was political hyperbole: " Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise." http://supreme.justia.com/cases/federal/us/394/705/case.html When a Second Amendment fanatic angered by something I had written emailed me, "If my eyesight was better I would put you six feet under myself", I assumed he had read Watts, was (I fervently hoped) only engaging in Constitutionally-protected ranting, and (needless to say) didn't report him to the police or a prosecutor.
The jurisprudence on "true threat" is a bit confused, but generally requires that the threat as uttered place a specific target in reasonable fear of imminent harm. Like speech in other constitutional arenas, "true threat" is best analyzed on a spectrum, rather than as a binary switch. "I will cut your throat at 4 p.m. tomorrow" is certainly not a protected utterance. On the other hand, the following gem from an NRA board member is clearly protected: Sarah Brady of Handgun Control Inc., (wife of Reagan press secretary James Brady who was terribly wounded in the assassination attempt) "pulls her husband around like a pulltoy on a string. My friends and I say that if that ever happened to one of us and our wife did that, somebody would slip into the house one night and slit her throat".
Ghaith's comment about a "storm of airplanes" is relatively mild by Watts standards. It is directed at an entire country, is nonspecific about time, and is rather stereotypical of the rhetoric that countries, including the U.S., direct at their enemies during wartime.
Why do we care? Abu Ghaith isn't an American citizen, and prosecuting him for political speech on the wrong or losing side is no different than prosecuting Ezra Pound or Lord Haw-Haw after World War II, right?
Allow me to point you down the slippery slope. I wrote about Abu Ghaith first because at least he received a trial. This essay could have started with Anwar Al-Awlaki, an American citizen, born in New Mexico, who was intentionally killed by the United States via a drone fired missile in Yemen, a non-combatant country, apparently for speaking out against the United States more loudly and effectively than Mr. Ghaith. Al-Awlaki's offenses, as revealed by the Official Narrative, also seem to be examples of Bad Speech which fall short of true threats. Al-Awlaki was targeted as an Al Qaeda spokesman, and his English-language anti-U.S. sermons, widely available on the Internet, have been linked to a number of attacks, including 9/11 and the Fort Hood shootings. His charismatic and colloquial rantings against his own government have been cited by a number of other suspected terrorists as stepping-stones to their own radicalization.
There have been hints that Awlaki wasn't purely a propagandist, that he may actually have supervised attacks. This could all possibly have been proven beyond a reasonable doubt in a trial in the United States. But it wasn't as we took the simple expedient of killing him extrajudicially with a drone.
If I can make a statement safely in Times Square, is it really OK for the government to kill me if, an American citizen, I make it in Paris instead (or am I only at risk in violent and vulnerable third world countries)? This is not an essay about drone warfare (that will be for another time), but (slippery slope continues) doesn't the precedent of rocketing an American overseas, apparently for his speech, suggest that some day we may do so for the same speech uttered within the U.S.? If they can convict Abu Ghaith at trial for talking trash, can't they convict me someday for talking Constitutionally-protected trash too?
"The government would never do that" is the least convincing argument against slippery slopes, because it really means "Trust us blindly". I am proud to have filed an amicus brief in the Jose Padilla case in 2004 arguing that the Framers never intended for us blindly to trust the government. Padilla was an American citizen who was "disappeared" into a Navy brig as an "enemy combatant". My fear (and my argument as to why I had standing) was, if it can happen to Padilla, why couldn't it happen to me? And the Bush administration's only answer was "Trust us, we wouldn't treat you like that", while wanting to keep the evidence against Padilla secret and deny him the right to seek a writ of habeas corpus. So if they ever did come for me, you would just assume they had good reasons.
My amicus brief actually brings us close to the bottom of the slope. After I filed it, I was astonished to read that Solicitor General Elena Kagan, soon to be appointed to the Supreme Court, had argued in the case of Holder v. Humanitarian Law Project that even filing an amicus brief could be deemed to violate a federal law against giving "material support" to an enemy:
JUSTICE KENNEDY: Do you stick with the argument made below that its unlawful to file an amicus brief?.....
KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that thats the amicus party, then that indeed would be prohibited.http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-1498.pdf at p. 47
Let's parse that. Kagan wasn't actually saying, as I first understood, that I had already committed a crime by filing my brief in the Padilla case. She was saying that as long as I was filing it on my own behalf, and not on behalf of......But when you get to that point in the sentence, you run into trouble.
Could she have meant that I would have been forbidden if Padilla was my client? No, because Padilla himself was the appellant, very ably represented by someone much more experienced than me. A party to the appeal doesn't file an amicus brief; these are filed by a non-party, who believes she has a theory or some information which may enlighten the court and assist it in making a decision.
In addition to representing myself, I listed another client, a friend who had been approached for questioning by the NYPD because of her projects promoting Arab and American friendship and her travel to the Middle East. If she was in fact deemed an enemy (which I wouldn't necessarily know) would that be enough to make me a criminal? In that scenario, Kagan seems to be envisioning a progression in which first my amicus client vanishes into custody, and then I am arrested for having provided her with material support.
Suppose Abu Ghaith, seeing a case on the horizon which could affect his own appeal of his conviction, asked me to write an amicus brief in that other case? Am I a criminal then? If the answer is yes--and that is clearly what Kagan intended-- then we have a moment of supreme illogic. The attorney representing Abu Ghaith in his own appeal is NOT a criminal, but I am for filing an amicus for Abu Ghaith in another case? How do you make that make any sense? Answer: its an intermediate illogical result in a step to an outcome which is perfectly consistent but violent, immoral and undemocratic.
Here is the progression. First, we frighten lawyers so they won't represent anyone they think is a Really Bad Political Criminal. If we play our cards right, we can achieve a Soviet style system, where the supposed advocate, in his summation, indignantly repudiates her client and calls for the client's execution. Then we can ask ourselves why we need to continue having even the appearance of a fair trial for these people? Its expensive, and if we reach a point where nobody in the rest of the world believes its fair, why bother? We may as well just put them into the hands of a military commission. But that too is expensive, and Guantanamo is crumbling and will cost millions of dollars to repair, and....so let's just rocket them with drones. Make sense?
The result is two narratives canceling each other out. The Official Narrative is that even Al Qaeda terrorists can get a fair trial in this country. Peeking through some illogical chinks in the Official Narrative is a really frightening Counter-narrative: that we reserve the right to try, convict and imprison people for their upsetting First Amendment-protected speech. Or even kill them, if its easier. That is all.