The centerpiece of the government’s case against Mr. Mehanna’s speech activities was a translation of a text titled “39 Ways to Serve and Participate in Jihad.” The government described this text, written by a late pro-jihad Saudi religious scholar, as a “training manual for terrorism.” It is nothing of the sort. It is a fairly routine exercise of Islamic jurisprudence explaining to pious Muslims how they can discharge what many of them believe to be a duty to contribute to wars of self-defense.
This text does explain that in Islamic law a Muslim may “go for jihad” or “collect funds for the mujahidin.” But it also explains that, in place of fighting or sending money, a Muslim can assuage his conscience and take care of widows and children, praise fighters, pray for fighters, become physically fit, learn first aid, learn the Islamic rules of war, have feelings of enmity for one’s enemies, spread news about captives and abandon luxury.
The act of translating this text is far from incitement to violent action. The text in fact shows Muslims numerous ways to help fellow Muslims suffering in their own lands, without engaging in violence. Instead of this common-sense reading, however, the government did something extraordinary. It used this text of Islamic law to help define for us what should count as a violation of our own material support law.
Everything Mr. Mehanna did, from hiking to praying, was given a number in the indictment based on this text as an act of material support for jihad. For example, his online discussion with a friend about working out and exercising should, in the government’s words, be “placed next to the directives in 39 Ways (Step 25: ‘Become Physically Fit’).” Federal prosecutors, in effect, used a Saudi religious scholar to tell us what our “material support” statute means.
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