Ac­cused Is­lamic State plot­ter makes free-speech de­fense

Har­ford Co. man pledged al­le­giance to group, FBI says

Baltimore Sun - - FRONT PAGE - By Ian Dun­can

Lawyers for a Har­ford County man who has been ac­cused of pro­vid­ing ma­te­rial sup­port to the self-de­clared Is­lamic State are ask­ing a judge to throw the case out on free-speech grounds.

Fed­eral prose­cu­tors say Mo­hamed El­shi­nawy pledged al­le­giance to the ter­ror group and re­ceived thou­sands of dol­lars from over­seas to carry out an at­tack in the United States.

El­shi­nawy’s at­tor­neys dis­pute the al­le­ga­tions about the money. And if the Edge­wood man did ex­press ad­mi­ra­tion for the Is­lamic State, they say, that’s no crime.

“While Mr. El­shi­nawy’s al­leged pledge and con­ver­sa­tions may be con­sid­ered by some to be hate­ful and vile, such speech is nev­er­the­less pro­tected un­der the First Amend­ment,” the lawyers wrote in a court fil­ing. “And the fact that such speech re­flects the goals and ide­ol­ogy of a ter­ror­ist or­ga­ni­za­tion re­spon­si­ble for horrific acts makes it no less pro­tected un­der our Con­sti­tu­tion.”

The case high­lights the some­times blurry lines be­tween the United States’ ro­bust free speech guar­an­tees and laws against pro­vid­ing sup­port for ter­ror­ism.

Those bound­aries have be­come es­pe­cially tricky to draw as the Is­lamic State has turned to so­cial me­dia to spread its mes­sage. The group has used Face­book,

Twit­ter and other plat­forms to re­cruit mem­bers, spread pro­pa­ganda and dis­trib­ute lists of tar­gets to be killed.

A fed­eral judge held a hear­ing on the ar­gu­ments in Baltimore last week. It is not clear when she might rule.

Au­thor­i­ties say they are care­ful to re­spect the First Amend­ment, and that the ac­tions of sus­pects who end up be­ing charged goes be­yond what the Con­sti­tu­tion al­lows.

But some say the gov­ern­ment has gone too far in its quest to round up ter­ror­ism sus­pects.

Brendan McGuire, who served as the head of the ter­ror­ism unit at the U.S. at­tor­ney’s of­fice in Man­hat­tan un­til this sum­mer, said prose­cu­tors face dif­fi­cul­ties as an in­creas­ing num­ber of cases re­volve around on­line com­mu­ni­ca­tions.

But the law is de­signed around pun­ish­ing con­duct, he said, not speech.

“As a re­sult, the fo­cus of a ma­te­rial sup­port pros­e­cu­tion is typ­i­cally on what you do, not what you say,” said McGuire.

Sea­mus Hughes, a re­searcher at Ge­orge Wash­ing­ton Univer­sity who stud­ies ter­ror­ism prosecutions, said free speech de­fenses have not been suc­cess­ful in ter­ror­ism cases, but El­shi­nawy’s lawyers have of­fered the “most cre­ative ar­gu­ment I’ve seen in a while.”

It’s against the law to pro­vide ma­te­rial sup­port to a for­eign ter­ror or­ga­ni­za­tion. Such sup­port can in­clude vol­un­teer­ing, re­cruit­ing mem­bers, or send­ing money or equip­ment.

The Supreme Court ex­am­ined the law in 2010. The jus­tices heard a case in­volv­ing sev­eral or­ga­ni­za­tions that wanted to pro­vide po­lit­i­cal aid to State Depart­ment­des­ig­nated ter­ror groups.

The court ruled that Congress could out­law such com­mu­ni­ca­tion with­out run­ning afoul of the First Amend­ment — but left open the pos­si­bil­ity that it might rule dif­fer­ently in other cir­cum­stances.

El­shi­nawy drew the at­ten­tion of the FBI last year when he re­ceived a wire trans­fer from Egypt. Prose­cu­tors say El­shi­nawy re­ceived sev­eral trans­fers to­tal­ing $8,700. They say he told in­ves­ti­ga­tors he un­der­stood the money to be for “op­er­a­tional purposes.”

At the same time, prose­cu­tors say, El­shi­nawy was en­gag­ing in ex­ten­sive on­line chats with a child­hood friend who had joined the Is­lamic State, and pledged al­le­giance to the group through him.

When FBI agents con­fronted El­shi­nawy, prose­cu­tors say, he told them he was try­ing to scam mem­bers of the Is­lamic State into send­ing him money.

Prose­cu­tors say he was “en­gaged not in ‘mere mem­ber­ship’ in an or­ga­ni­za­tion but rather in ac­tive con­duct at the di­rec­tion of, and in co­or­di­na­tion with his [Is­lamic State] co­con­spir­a­tors.”

El­shi­nawy’s lawyers have stressed in court pa­pers that his case is un­usual among the dozens of ter­ror­ism prosecutions filed since the at­tacks of Septem­ber 11, 2001. They say au­thor­i­ties have not ac­cused him of buy­ing any weapons or plan­ning an at­tack.

“The only ter­ror­ist at­tack de­scribed in the in­dict­ment is one that Mr. El­shi­nawy ex­pe­ri­enced in a dream,” the lawyers wrote.

They also call into ques­tion whether the money El­shi­nawy is ac­cused of re­ceiv­ing came from the Is­lamic State — his lawyers say he fell on hard times and got fi­nan­cial help from his parents in Egypt.

De­fense lawyers have raised free speech con­cerns in sev­eral cases in re­cent year.

Hughes says prose­cu­tors, try- ing to move more quickly to take sus­pects into cus­tody and stop plots slip­ping through the cracks, have been mov­ing to file cases ear­lier, and are some­times try­ing out new le­gal ideas that could be chal­lenged in court.

A case in Mis­souri poses the ques­tion of whether a per­son can be charged for a retweet.

Prose­cu­tors say Safya Yassin, who lived in a small town 200 miles south­west of St. Louis, re­posted the per­sonal in­for­ma­tion of an FBI agent along with the words, “wanted to kill.” Her lawyers are seek­ing to have the charges thrown out on free speech grounds.

The courts gen­er­ally have taken prose­cu­tors’ side, Hughes said. But that could change.

“I imag­ine at some point they’re go­ing to get a not fa­vor­able judge who pushes back,” he said.

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