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Accused Harford County Islamic State plotter makes free speech defense

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.

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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."

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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.

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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, who is now in private practice.

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 Department-designated 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, trying 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 south west 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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