An Existential Threat To America

Law, Politics & Current Events

Sometimes a judicial opinion buries the lede. Other times a court will signal how the case will go from the first sentence.

Let nobody say that Judge Bruce Selya, Circuit Judge of the United States Court of Appeal for the First Circuit, buried the lede in affirming the federal conviction of Tarek Mehanna:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

The conclusion flows ineluctably from that premise: Tarek Mehanna's conviction for providing material support to Al-Qaeda must be upheld. And so it was yesterday.

But is the premise correct? And for what purpose do courts and government actors bring it to bear?

The Prosecution of Tarek Mehanna

The United States convicted Tarek Mehanna of, among other things, conspiring to provide material support to Al-Qaeda, a designated terrorist group. He was convicted under Title 18, United States Code, Section 2339B:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

What does "material support" mean? It means all of this:

(1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

(2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and

(3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

This statute has been controversial for two reasons.

First, the United States' process for designating groups as "foreign terrorist organizations" is political, not principled. Last year I described how the United States, for political reasons, de-listed a group years after I convicted a man for aiding it. That issue is not present in this case; Al-Qaeda is a terrorist group by any definition.

Second, the statute has been controversial as applied to "material assistance" that takes the form of advocacy, advice, and other traditional First Amendment activity. A detailed discussion of the law is beyond the scope of this post. At the Volokh Conspiracy, Professor Eugene Volokh has thoroughly explored the implications of leading cases on the subject like Holder v. Humanitarian Law Project. His discussions on the issue are collected here. As he says in one representative post:

I’m still digesting the implications of the majority opinion, but it tentatively strikes me as somewhat troubling: It does allow a content-based restriction on speech by Americans, and while I think it can be limited to speech coordinated with designated foreign terrorist organizations — so that speech that’s independent of those organizations remains protected even if it ends up helping them — (1) that limitation is not as clearly set forth as I’d like, (2) the majority doesn’t say much to justify the constitutional significance of the distinction, and (3) I’m not positive that the distinction is sound (though I’m also not positive it’s unsound).

The government asserted that Tarek Mehanna traveled to Yemen to train to fight American soldiers in support of Al-Qaeda, and that his subsequent activities constituted anti-American and pro-Al-Qaeda propaganda coordinated with Al Qaeda, outside the protection of the First Amendment. You can read the government's version of events in the government's appellate brief, which I've uploaded here.

Mehanna's argument — among others — was that the government only showed that he "translated publicly available al Qaeda propaganda from Arabic to English and that he sought to persuade others to share his extreme ideology," that this activity was protected by the First Amendment, and that the trial court failed to instruct the jury properly about the line between protected speech and prohibited coordination with a terrorist organization. (Opening Brief at 2.) To learn more about his position you can read his opening brief or his reply brief. You could also look at the amicus briefs submitted on his behalf on the First Amendment issue by the ACLU, the Center for Constitutional Rights, or an an association of scholars, translators, and publishers.

How would that argument fare, measured against the an existential threat to America akin to the bubonic plague?

The First Circuit's Opinion Affirming The Conviction

Circuit Judge Selya and the First Circuit rejected Mehanna's First Amendment arguments in their opinion. Ultimately the court evaded the fundamental question of whether Mehanna's translation and advocacy was outside the protection of the First Amendment. See, the government also presented evidence that Mehanna went to Yemen to train up to help Al Qaeda, and that activity was sufficient to violate the statute. So even though the government decided to present extensive evidence about Mehanna's advocacy, and argue to the jury it constituted material assistance, the First Circuit decided it just didn't matter:

It is pointless to speak in the abstract of a verdict predicated on protected conduct. The Court of Appeals is not a sorting hat, divining which criminal defendants' stories fall into constitutionally protected and unprotected stacks. Cf. J.K. Rowling, Harry Potter and the Sorcerer's Stone 113-22 (1997).

Instead, an appellate court's role is to discern what, if any, errors marred the trial below. This inquiry requires us to focus on the relevant actors in the trial and not to engage in an untethered academic analysis of the verdict itself. Personification has its limits. Verdicts, not being sentient, cannot err on their own; rather, any errors in a verdict come from the actors who have contributed to it. For example, a trial judge can commit error by instructing the jury that it can convict a defendant for wholly legal conduct. See, e.g., United States v. Tobin, 480 F.3d 53, 56-58 (1st Cir. 2007). By the same
token, jurors can err by returning a guilty verdict that is unsupported by legally sufficient evidence. See, e.g., United States v. Valerio, 48 F.3d 58, 63-65 (1st Cir. 1995).

When it comes to the argument that the defendant makes here — that one of two possible grounds for the general verdict is suspect — the classification of the specific error makes all the difference. If "a mistake about the law" underlies the argument, reversal may be necessary. Griffin v. United States, 502 U.S. 46, 59 (1991); see Yates v. United States, 354 U.S. 298, 312 (1957); Stromberg v. California, 283 U.S. 359, 367-68 (1931). Such a "legal error" occurs, for instance, when "jurors have been left the option of relying upon a legally inadequate theory" by the trial court's charge. Griffin, 502 U.S. at 59. If, however, "a mistake concerning the weight or the factual import of the evidence" underlies the argument, the verdict must be upheld as long as the evidence is adequate to support one of the government's alternative theories of guilt. Id.

Put another way: it doesn't matter if Mehanna's advocacy was protected by the First Amendment, and it doesn't matter if the government cited and relied on that advocacy, because the government also presented evidence of a train-to-kill-Americans trip to Yemen, and that evidence was sufficient to show a violation of the statute as an alternative theory.

The court also rejected Mehanna's argument that the trial court didn't adequately explain the line between protected advocacy and prohibited coordination with terrorist groups:

In sum, the district court's instructions captured the essence of the controlling decision in HLP, where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is "in coordination with foreign groups that the speaker knows to be terrorist
organizations." Id. at 2723. If speech fits within this taxonomy, it is not protected. See id. at 2722-26. This means that "advocacy performed in coordination with, or at the direction of," an FTO is not shielded by the First Amendment. Id. at 2722. The district court's instructions tracked the contours of this legal framework.

Prof. Volokh ties this to his previous discussion of the "coordination" exception to the First Amendment.

Judge Selya's Frame, And The True Existential Threat To America

This is an important First Amendment decision — or, perhaps, an important refusal to decide — and it deserves a thorough and thoughtful First Amendment critique. But I'm not going to give it in this post. Instead, I'll return to the way Judge Selya chose to frame the case, from the very first sentence of his opinion:

Terrorism is the modern-day equivalent of the bubonic plague: it is an existential threat.

That frame determines the outcome of this or any other case; it renders any analysis I might offer irrelevant. It is a justification for any prosecution, any conviction, any infringement of speech, any interception of phone calls or emails, any warrantless search, any torture in a dank cement room.

But is it true?

No.

An existential threat is one that threatens our very existence as a nation. The bubonic plague, Judge Selya's reference point for the threat of terrorism, killed a third of the population of Europe.

Does terrorism threaten our existence? No. Terrorism threatens a horrific loss of life. But our nation endures it. The 9/11 attacks killed 3,000 people. Those deaths were tragic. But our nation endures — as surely as it endures with more than 30,000 traffic fatalities per year, or some vast number of smoking-related deaths per year, or more than 15,000 homicides per year. Traffic deaths and smoking deaths and murders don't get called "existential threats," don't get compared to the bubonic plague, and don't get cited in the lede of a case upholding a conviction premised in part on advocacy. Nor do, for instance, police shootings — even though you are eight times more likely to be killed by a cop than by a terrorist in America.

Is terrorism an economic threat to our nation? Sure. But not, by itself, an existential one. 9/11 cost us $3.3 trillion — but only about $200 billion of that was about the direct harm the terrorists did to us. The rest — the cost of war and policing ourselves — is about our reaction to terrorism, not terrorism itself.

America is not a set of currently living humans, or currently standing buildings, or currently peaceful patches of land. America is a set of ideas that inspire and unite us even through adversity and bitter disagreement. Those ideas include a voice in our governance, freedom of thought and worship and speech, the rule of law, and freedom from unreasonable and unrestricted government intrusion. Terrorists cannot themselves pose an existential threat to America because they cannot themselves alter those values. But we can abandon those values in response to the fear of terrorism. We can allow terrorism to become what I call an "airhorn issue" signalling an end to discussion or questioning of the government, or what another court called a "skeleton key": "However, we would work a great disservice by permitting the word “terrorism” (in the absence of any other information or circumstance) to act as a skeleton key to the liberties guaranteed under the Constitution." We can let the threat of terrorism — as we have too often let the threat of drugs — convince us to tolerate any indignity, any violation, any intrusion, any limitation upon us by our government. That would threaten the existence of America as we know it.

Terrorism is not an existential threat to America. Americans afraid of terrorism are. A judiciary that believes otherwise is suspect and cannot be counted upon to protect our rights.

Last 5 posts by Ken White

53 Comments

53 Comments

  1. Clark  •  Nov 14, 2013 @3:02 pm

    America is not a set of currently living humans, or currently standing buildings, or currently peaceful patches of land. America is a set of ideas that inspire and unite us even through adversity and bitter disagreement.

    Except for the fact that you used the present tense when the past tense is called for, we agree completely.

  2. shoirca  •  Nov 14, 2013 @3:04 pm

    Terrorism causes less deaths than deers or home appliances in America.

    http://www.foreignaffairs.com/articles/66186/john-mueller-and-mark-g-stewart/hardly-existential

  3. Lizard  •  Nov 14, 2013 @3:11 pm

    I would argue that the FEAR of terrorism is an existential threat to America.

  4. Craig  •  Nov 14, 2013 @3:15 pm

    Except for the fact that you used the present tense when the past tense is called for, we agree completely.

    Sad but true.

  5. Dave  •  Nov 14, 2013 @3:19 pm

    Love putting things into perspective: "eight times more likely to be killed by a cop than by a terrorist in America."

  6. Dion starfire  •  Nov 14, 2013 @3:23 pm

    Except for the fact that you used the present tense when the past tense is called for, we agree completely.

    I think you're mistaking acting on ideas with having ideas. Americans do share a common set of values that bring us together (we also have quite a few values that pull us apart, too), we're just not very good at acting to support those ideas.

  7. Stephen H  •  Nov 14, 2013 @4:14 pm

    I disagree with your analysis. Terrorism is an existential threat to the US and to democracy, but not in the way the judge means. Fear of terrorism has undermined centuries of hard-fought rights, made it easier for anyone to be punished for disagreeing with the government of the day, and led courts to hyperbolic rhetoric that overstates the problem and causes more reduction in liberties.

    So terrorism has become an existential threat, but only because our reaction to it has been so ridiculously over the top (something along the lines of "reds under the beds", but even worse).

    As a side note, I wonder if the judge immunises his children.

  8. Phalamir  •  Nov 14, 2013 @4:14 pm

    " killed a third of the population of Europe."

    Not that it was close to killing 3/3, but most recent research suggests the number is at least 1/2, and maybe as high as 2/3.

    And by the judge's logic the US is the biggest threat tot eh US, since we actually have enough nukes to existentially threaten ourselves.

  9. Mitch  •  Nov 14, 2013 @4:24 pm

    Ken – I respectfully disagree. Al Qaeda has not – to date – delivered an attack that threatens the existence of the United States. But, using the definition of threat that you have utilized in other First Amendment discussions – Al Qaeda has delivered an existential threat to the United States. Al Qaeda has repeatedly threatened to rain down destruction on the United States. It has repeatedly threatened to utilize nuclear, radioactive and biological weapons against the United States. And, those threats were subjectively and objectively intended to be received as "true threats."

    I, for one, do not doubt for a moment that if Al Qaeda could deliver a nuclear weapon to Times Square (where I sit), it would do so without compunction. Nor do I doubt that Al Qaeda assiduously seeks to inflict attacks broader in scope than the 9/11 hijackings on the United States. I doubt that you think otherwise. If you do, then we have an difference of opinion.

    I think our true difference is whether the threat of radioactive, biological and nuclear weapons being used in a single or series of attacks on the United States constitutes an "existential threat" to the United States. It is certainly true that even a decimation of the United States by coordinated attacks in all 50 states would not, in and of itself, make it impossible for life under the Constitution to continue. But I believe that in such a circumstance, it is virtually certain that the Constitution would be suspended and a form of military rule would take hold.

    So, I respectfully ask, "Is there anything short of an actual occupation of the United States by an invading power that you would consider an 'existential threat' to the United States?"

  10. cbcalvin  •  Nov 14, 2013 @4:31 pm

    Terrorists do not kill the most Americans. Crazy shooters do not kill the most Americans. Tobacco use kills the majority. Drunken drivers are way down the list. Texting drivers are moving up. What is there about this that is so hard to get? Oh. TV Rots Minds. Smoking, bad driving is not news. So Ordinary.

  11. AlanMorgan  •  Nov 14, 2013 @4:33 pm

    Mitch – I believe that the Soviet Union was an existential threat to the US (they might have been heavily armed in response to our being so heavily armed, but that's a different argument). They could have wiped us out. Al Qaida would *like* to, but they can't. They don't have a bomb and it would take more than one to do it. Just one would hurt us and infuriate us, but it wouldn't destroy us.

    Terrorism does probably pose an existential threat to Israel (mostly due to Israel's smaller size), but the US? Nah.

  12. Sami  •  Nov 14, 2013 @4:35 pm

    If I were American, I would be fucking offended by that opening by the judge, frankly.

    His contention, essentially, is that America, and Americans, are weak, fragile cowards, to be shattered where other nations have endured.

    Other countries have experienced terrorist campaigns that brought actual, regular, and constant attacks for years, even decades on end. They didn't stop existing.

    The only argument in support of his thesis is that, in the aftermath of 9/11 specifically, America has abandoned many of the principles for which it formerly stood, as if taking, "They hate our freedoms!" as a guide for correction and destroying those freedoms from within would cure all reason for hostility to America anywhere.

    However, in that case, as a reaction to that threat, this decision seems a bit counter-productive.

  13. Allen  •  Nov 14, 2013 @4:54 pm

    (3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

    They had better shut down the public database to the US Patent Office then. All manner of Witch's Brews may be found there. In fact, wouldn't the inventors and the US Patent Office itself be subject to this law? The inventor for disclosing the technical knowledge, and the USPTO for publishing it.

    Which would also include numerous journals, and publishers. I wasn't really aware of the scope of this law, but on it's face any author or publisher that provides useful information to a terrorist group would be open to prosecution. The word "knowingly" doesn't provide a get out of jail free card either. If one has done certain types of research and development, say on explosives, it is a given that it can be used for destructive purposes.

  14. The Man in the Mask  •  Nov 14, 2013 @5:07 pm

    It is also worth noting that Americans are as likely be to killed by their own furniture as by a terrorist:

    http://www.theatlantic.com/international/archive/2012/06/americans-are-as-likely-to-be-killed-by-their-own-furniture-as-by-terrorism/258156/

  15. Tarrou  •  Nov 14, 2013 @5:27 pm

    Ok, the judge's rhetoric was ludicrous. The underlying case is not contingent on the judge's idiotic flourish, however. The defendant was a member, employee and enthusiastic participator in an organization which has declared war on the US. They have made good their threats on multiple continents and we, collectively through our representatives, have declared war on them, through the silly euphemism of the "war on terror". The first Amendment covers a host of speech, and I admit few exceptions to it. It doesn't cover treason or true threats. Al Qaeda propaganda is both.

  16. Anon-UV-Squirrel  •  Nov 14, 2013 @5:38 pm

    eight times more likely to be killed by a cop than by a terrorist in America.

    For whom? The lower third of society or the upper third? The terrorists killed many from the latter, and likely seriously went over the number of them killed by cops. On the other hand, cops mostly end up killing people from the lower third of society.

  17. Dan T.  •  Nov 14, 2013 @5:40 pm

    How many court cases cite Harry Potter?

  18. glasnost  •  Nov 14, 2013 @5:51 pm

    The material support law is bullshit. It's unconstitutional and way overbroad. It's a treasure trove of putting people in jail for their political opinions waiting to happen. There's no complex assessment needed. Free speech and free association are not equivalent to plotting violence against the US or joining an organization that does the same. If someone is coordinating anything with Al-Queda, either they are an accessory to terrorism or they aren't. if they're not, speech is protected. It's that simple.

    This law was written to enable people to be prosecuted for talking to random people, or people they thought they knew, who in turn turn out to have 'affiliations' (ate in a restaurant with?) banned groups,.

  19. Mr. A  •  Nov 14, 2013 @6:12 pm

    That judge and the government that pays his salary are a bigger existential threat to the US than a bunch 3rd-world malcontents.

  20. PonyAdvocate  •  Nov 14, 2013 @6:25 pm

    Since shortly after 9/11/2001, I have thought frequently of what I once saw on a poster: words, attributed either to Joseph Goebbels or to Hermann Goering, along the lines of "In order to control the people, simply frighten them, tell them you'll protect them, and accuse anyone who opposes you of treason."

  21. Tarrou  •  Nov 14, 2013 @6:32 pm

    @PonyAdvocate,

    Not sure if that was aimed at me or the judge, but just because a bad man once advocated spurious use of the treason charge doesn't mean treason isn't a real thing. I'm pretty circumspect about the charge, but is it really outside the bounds of reasonable discourse to think that a guy with Mehanna's job description committed treason? So much so that it brings the comparison to Nazism? If only there were some sort of internet rule to deal with this situation.

  22. Parallax  •  Nov 14, 2013 @6:46 pm

    @Mitch asked:

    "Is there anything short of an actual occupation of the United States by an invading power that you would consider an 'existential threat' to the United States?"

    Complete disregard for the text of the Constitution comes to mind.

  23. Rob  •  Nov 14, 2013 @7:07 pm

    How would that argument fare, measured against the an existential threat to America akin to the bubonic plague?

    The bubonic plague isn't even an existential threat. We've been able to cure it completely since we developed antibiotics. While some rodent populations still harbor it and people occasionally still get it, large outbreaks akin to the Black Plague aren't something we need to worry about anymore.

  24. Rob  •  Nov 14, 2013 @7:08 pm

    Complete disregard for the text of the Constitution comes to mind.

    Bingo. And all of this paranoia is allowing power-hungry assholes to bring us closer and closer to that reality.

  25. Madison  •  Nov 14, 2013 @7:19 pm

    As a matter of recent history, 8x more Americans were killed by a police officer than a terrorist. But I do not think it is fair to extrapolate that going forward, Americans are 8x more likely to be killed by police than terrorists. And I believe that the level of US terrorists casualties depends on the level of vigilant disruption of terrorist threats.

    This does not mean that all deprivations of civil liberties should be accepted. It means the threat is real, persistent and limited only by our enemies opportunity to make use of the most lethal weapons imaginable.

  26. Dan  •  Nov 14, 2013 @7:41 pm

    Americans afraid of terrorism are.

    Anybody else read this in a Yoda voice? It took me a couple of reads to get what Ken was trying to say.

    (Also, just to throw in my two cents, I agree with Ken. Terrorism isn't the existential threat; our reaction to terrorism is.)

  27. Patterico  •  Nov 14, 2013 @7:42 pm

    I know it is fashionable these days to contend that terrorism does not pose much of a threat, but I would like to echo much of what Mitch said. If Al Qaeda or some other crazy group could explode a nuclear bomb in this country, or several, they would — and they are trying, and nobody can know with certainty whether they are close to succeeding or not.

    I agree that surrendering liberties is a danger as well, but I think that, just as the threat of terrorism can be overstated in the immediate aftermath of a large attack, it can also be understated as such attacks recede into the misty depths of memory. I suspect that, as time goes on, terrorists will be as likely as any other phenomenon to spell the end of civilization as we know it.

  28. PonyAdvocate  •  Nov 14, 2013 @7:44 pm

    @Tarrou

    My post was not aimed at anyone in particular. I was simply assenting to what I think is the substance of Mr. White's post: we in the US have allowed ourselves to be taken far, far away from our values by our leaders, who foolishly or malevolently have ginned up fear among us, instead of encouraging us to be strong and brave and true to our ideals.

    I don't know who, if anyone, actually said what I quoted. As I said, I saw the attribution on a poster, such as one might find on a dorm room wall. Whoever said it, or even it no one did, I think it legitimate and necessary to try to learn lessons from history, even if (or especially if) the history concerns evil.

  29. Patterico  •  Nov 14, 2013 @7:44 pm

    As for complete disregard for the text of the Constitution, that is a problem — but some seem more comfortable with certain portions being ignored as long as their pet phrases and provisions are kept mostly intact. (Everybody up for the President rewriting a statute on his own? We're watching it happen right before our eyes.)

  30. Mr. A  •  Nov 14, 2013 @8:24 pm

    @Patterico – I don't think anyone is saying that non-state actors, or on-the-sly state actors aren't a dangerous military threat (EDIT: or at least, they weren't when I last checked in on the comments here)… it's probably inevitable that nuclear devices of some sort will be detonated in western cities. The west is more likely to survive that than other forces that are corrosive of its culture, and the judge's have-to-destroy-the-village-in-order-to-save-it attitude is one of those forces. At least, IMO.

  31. TM  •  Nov 14, 2013 @8:35 pm

    Ignoring the rhetoric, perhaps a lawyerly person can chime in here. Is there any reason (other than expediency) where if a person appeals on the argument that certain evidence was introduced or used improperly, and the appellate court finds that the person could still have been convicted on other evidence why the trial isn't immediately sent back to lower courts to be retried without the evidence in question? After all, could doesn't mean would and there is no way for the appellate court to know which evidence or to what degree certain evidence influenced the jury. It seems only fair that if the person appealing is arguing that the evidence was improper, and the appellate court doesn't want to rule on that directly that it be sent back to the lower courts without the evidence in contention.

  32. G Joubert  •  Nov 15, 2013 @1:58 am

    The purpose of terror is to terrorize. Terrorize means make people very fearful. It is illogical to then try to separate out the cost of terrorist acts from the cost of our fearful reactions, especially since it's precisely one of the harms the terrorists intend to inflict. It should be included as part of the cost.

  33. Rich Rostrom  •  Nov 15, 2013 @2:41 am

    In 2011 and 2012, 696 Israelis were killed in traffic accidents. Only 14 (1/50 as many) were killed by terrorists.

    Does that mean terrorist attack is not an existential threat to Israel?

    History does not have to be fair. It may put us in situations we don't want to be in. There may come a time when we will have to choose between intrusive and often arbitrary protective measures and physical destruction.

    I don't think that time has come yet. But those who insist that terrorism can never be a really deadly threat are whistling past the graveyard.

  34. mcalex  •  Nov 15, 2013 @3:36 am

    Given recent posts, does anybody know how many more times are you likely to be raped by a cop than a terrorist?

  35. Joe Schmoe  •  Nov 15, 2013 @5:57 am

    If war is politics by other means, terrorism is war by other means. The "terrorists" would prefer to fight a conventional war against us, but they can't. They do what they can. Incidentally, we resort to "terrorism" whenever we also can't attack armies. For example: In World War 2 we gladly bombed civillians when we thought it was too difficult to attack armies otherwise.

    All nations resort to "terrorism" when it is the only way to fight a way.

    This terrorism labeling is driving me nuts. It's a war. What is the war about?

    What did Obama Bin Laden say that his goals were? You never hear about it but he was very clear. He had three demands:

    1. Remove US Troops from middle east.
    2. US stop propping up dictators who brutalize their citizens.
    3. US stop supporting Israel in their conflict.

    That's what this war is about

    Re-read those three points. Do any of you believe that we should be fighting a war over those three points?

    Points 1 and 2 I am against. On point 3, I don't give a shit, and I am not willing to fight a war over it.

    Let's end this war and we will end the "terrorism".

  36. ilepope  •  Nov 15, 2013 @6:11 am

    If I may, uninformed as I generally am…
    Much as I agree in substance, I have some problems with your description of what the threat of terrorism actually is, to stress the dissonance with the case at hand.

    I should perhaps point out that I live in a small corner of the world where we still have a lingering local terrorism problem (although thankfully with no overt actions for some time, since the local terrorist group has declared the suspension of its armed activity), and I have directly experienced its effects – not physically, though.

    Because of this, I would very much hesitate to describe the threat of terrorism as only being immediate physical threat. In my own case, my direct physical threat (other than the possibility of being at the target of an attack by mere chance, and that was a remote possibility) never amounted to more than the possibility that the support groups in the margins of the terrorists might burn my car or give me a thrashing in a dark corner.

    Nonetheless, my whole everyday life was tainted and tinged by this presence. What do you say to those normally very decent neighbours of yours that complain about the presence in the neighbourhood of a target of the terrorists? How do you manage to have a meeting with your boss when she has to change her routine every day to make her a more difficult target?

    What about those normally decent people that go out of their way to avoid making themselves a target, and thus are actually helping the objectives of the terrorists?

    I do not want to say that the terrorist threat in the States is comparable to what I am describing (which could be termed "Mafia-style" terrorism because of its seeping influence in society), but I think I will have succeeded in making the point that I am reluctant to restrict the threat of terrorism to direct physical threat.

  37. Sheriff Fathead  •  Nov 15, 2013 @6:38 am

    @Mitch

    "Is there anything short of an actual occupation of the United States by an invading power that you would consider an 'existential threat' to the United States?"

    At the risk of putting words into Ken's mouth, his post suggests at least two:

    1) A contagion on the scale of the bubonic plague in mediaeval Europe.

    2) A populist and popular authoritarian movement that seeks to use people's fears as a tool to subvert established political and legal structures (much as National Socialism proved to be an existential threat to the Weimar Republic).

    How many do you want? Existential threats tend to be rare, thankfully.

  38. Josh C  •  Nov 15, 2013 @7:12 am

    I don't think you have read Clausewitz with sufficient care.

  39. Sheriff Fathead  •  Nov 15, 2013 @7:32 am

    Of course, existentialist threats (that you will be bored to death by a moody and pretentious wannabe philosophe) are still relatively common, especially in student bars, but are declining as Sartre goes out of fashion.

  40. Gabriel  •  Nov 15, 2013 @7:36 am

    The rest — the cost of war and policing ourselves — is about our reaction to terrorism, not terrorism itself.

    Terrorism is a societal allergen.

    The correct response to an allergy attack is to suppress the immune response, not to encourage it.

  41. Joel  •  Nov 15, 2013 @7:39 am

    I don't think that time has come yet. But those who insist that terrorism can never be a really deadly threat are whistling past the graveyard.

    I don't think anyone is claiming terrorism can't be a deadly threat. They are claiming that our response to whatever the state decides to refer to as "terrorism" is vastly disproportionate to the true threat posed. This is not (well, should not be) a black and white case of either zero-threat or absolute-threat. The possibility of a generic "terror attack" is certainly not worth sacrificing personal liberties–that possibility will always exist and will continue to exist under the most iron of fists. When classifying a deadly threat, especially in regards to giving up freedoms, one should be subject to an incredible burden of proof, and not be able to simply skate by on buzzwords.

  42. Tarrou  •  Nov 15, 2013 @7:42 am

    @Joe Schmoe,

    There's two major problems with your read, one of which can be itemized to your complaints.

    First, you make the hilarious and ridiculous assumption that it was actually US troops/support for Israel etc. that motivated terrorism against the US. Sorry chum, don't know if you've been to the mid-east, but conspiracy theory and hatred of the West in general and the US in specific is endemic, and not attached to any policy of ours. Had Bin Laden not had those excuses, he would have used "cultural imperialism", corrupting their morals through music and TV, or any number of other reasons.

    As to the specific complaints:

    1: US troops weren't in the middle east until one middle east dictator went all nutso and another one asked us for help. This was supported by most of the middle eastern countries. We left a token force because they asked us to. And this whole operation throws a wrench into the second excuse:

    2: Supporting dictators. This gets confused with normal diplomacy all the time, as if we should not have any relations with any country without a democracy. Do we at times directly support unsavory guys? Sure. That's part of the international dance. But that word "support" can mean a lot of things. In most of the mideast, it means we buy their oil and shake their hands. This connection of the US to all the dictators is just BS conspiracy theory. The Shah was us. The rest are on the population of whatever country they live in.

    3: Here's that word again…."support". The US has never directly supported the Israelis in any conflict, ever. Not one US soldier has ever died fighting for Israel. A few died at Israeli hands while spying on their fight with the Egyptians, but that hardly counts. We did provide material support in the 1973 war, which was the first time the US had ever given the Israelis weapons. We only kept selling them weapons (planes mostly), as a part of their peace deal with Egypt. We sell Egypt weapons under the same deal. It's hardly supporting Israel, it's international diplomacy. We wanted to get both countries to stop fighting, and away from the Soviet Union. That's how we did it. And we were successful, they haven't fought since, and were on our side through the end of the Cold War.

    Lastly, there's the "worth going to war" bit. None of those may seem "worthwhile" to you, but the sovereign power of a nation to do as its citizens see fit is. Nations cannot be dictated to by private foreign nationals, and resist being dictated to. It's the ultimate heckler's veto. Shall we simply roll up any bit of international diplomacy because a religious whack job in some sandlot in the armpit of the world dislikes it, and is willing to kill some people over it? Ludicrous. No nation would submit voluntarily to such a system.

  43. Sheriff Fathead  •  Nov 15, 2013 @7:56 am

    What Joel said.

    Of course terrorism can be deadly (an "existential threat") to individuals; if you get caught in a bombing, your existence may well be terminated.

    But terrorism as an existential threat to a nation is a bit more of a stretch, especially when the nation is as large and powerful as the U.S.

    I can think of three semi-plausible scenarios:

    1) Biological terrorism (cf. Twelve Monkeys).
    2) Nuclear terrorism as a false-flag operation, designed to trigger a wider war (cf. The Sum of All Fears).
    3) A retreat into authoritarianism by a terrorized populace.

    Ironically, the last of these is only made more likely by loose talk of terrorism as an existential threat and the consequent need for exceptions to established liberties; in other words, if we treat terrorism as an existentialist threat, it's more likely to become one.

  44. Joe Blow  •  Nov 15, 2013 @8:32 am

    If terrorism is an existential threat, then for the most part it is only because terrorists are merely the vector, and judges and politicians get the disease, which causes them in turn to destroy our civil society.

  45. Nowan  •  Nov 15, 2013 @8:54 am

    However, Terrorism IS an existential threat to America, or at least the America that I grew up in, just not in the way the Judge means. The goal of the terrorists is to wreak havoc on our ability to function effectively as a society and disrupt our our way of life through fear and intimidation. The terrorists have largely succeeded in those goals by giving those in power the excuse to trample all over the very principles our country was founded on. Although a country of the same name may exist, it is not the same country it once was if those founding principles cease to exist and thus the country that once was no longer exists.

  46. Mike  •  Nov 15, 2013 @9:08 am

    Clark -

    America is not a set of currently living humans, or currently standing buildings, or currently peaceful patches of land. America is a set of ideas that inspire and unite us even through adversity and bitter disagreement.

    Except for the fact that you used the present tense when the past tense is called for, we agree completely.

    Really? So when would you say that was more true than today? Please explain why, and why that would hold true for more than just the straight white male population on the date you chose.

  47. Clark  •  Nov 15, 2013 @9:14 am

    Really? So when would you say that was more true than today?

    I am merely making a statement that I think "America is" is the wrong tense, and – as when referring to the Roman Republic – one should say "America was".

  48. Nowan  •  Nov 15, 2013 @9:18 am

    The problem I see with the statute is not so much in the definition of "material support" (which IS still a problem with regards to 1st Amendment conflicts especially since the determination from Citizens United that money is speech) but rather with the definition of a "terrorist organization" and how that is determined. It seems far too easy for the government to simply declare another group a terrorist organization just because they don't like what they stand for.

  49. Wes  •  Nov 15, 2013 @3:46 pm

    @ Phalamir
    "And by the judge's logic the US is the biggest threat to the US, since we actually have enough nukes to existentially threaten ourselves."

    You're onto something here. A 10 megaton device on Boston would surely have given those two terrorists the justice they so richly deserve.

  50. Hugo S. Cunningham  •  Nov 16, 2013 @12:07 am

    The "bubonic plague" phrase, like William O. Douglas's "penumbra" phrase, invites parody by opponents. Nevertheless, the judge decided the case correctly. The Founding Fathers specifically included "treason" as an exception to the First Amendment and other civil rights. For example, there is no First Amendment right to publish the sailing schedule of troop ships, or free-market right to supply explosives and shelter to enemy saboteurs.

    Foreseeing that charges of "treason" could be massively abused, the Constitution's framers carefully restricted it: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." The Constitution does not require that said "enemies" constitute an "existential threat." The definition is broad enough to include Tarek Mehanna's efforts, through propaganda and by bringing people to Yemen, to "raise armies" (another Constitutional phrase) for America's enemies, including the mosque-bombing and child-slaughtering insurgents in Iraq. The "inflammatory material" shown to Mehanna's jury was material he himself had selected to incite war against America.

    Maybe Mehanna was a dumb kid in over his head, deserving some mercy, but he didn't act like one. Instead he doubled down, lying to investigators (Yemen as a center of religious scholarship– give me a break!), and refusing to help roll up his plots before anyone got hurt. If he and his family want clemency in the future, they need to discard their current circle of anti-American friends, and show some contrition for his betrayal of the country he owed allegiance to.

  51. GuestPoster  •  Nov 16, 2013 @8:22 am

    You know… that statement makes it sound like the judge believes that we could end terrorism by breeding kittens. And really, that might just work – who in their right mind would bomb a bunch of kittens? They would have cured the plague – maybe they'd cure terrorism too!

  52. Anony Mouse  •  Nov 16, 2013 @7:42 pm

    Second, the statute has been controversial as applied to "material assistance" that takes the form of advocacy, advice, and other traditional First Amendment activity.

    Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

    Adhering to Enemies or giving the Aid and Comfort could be considered free association. Therefore Article 3 Section 3 of the Constitution violates the First Amendment!

    Sorry, long day at work and I'm making stupid semantic points. I'll shut up now.

  53. AlphaCentauri  •  Nov 17, 2013 @11:10 pm

    Terrorists are terrorists because they themselves aren't capable of actually threatening the existence of the US. They have to use absolutely random attacks to frighten far more people than are actually in danger, so we actually threaten our own existence. If they really were capable of doing us damage, they would be capable of taking control of the government of some other sovereign nation and threatening us with outright war. They are like mosquitoes biting an elephant, and the elephant is only in danger when it starts ramming its head into trees trying to kill the mosquitoes.