Audio Transcript:

Marco Werman: I'm Marco Werman, this is The World. Guilty on all counts -- that was the verdict today from a jury in the terrorism case of Tarek Mehanna. The jury in Boston convicted him of conspiring to help al-Qaeda and plotting to kill US soldiers in Iraq. After today's verdict, the 29-year-old defendant could be sentenced to life in prison. As we reported yesterday, Tarek Mehanna was born in the US and raised in a Boston suburb. Prosecutors said he traveled to Yemen to attend a terrorist training camp. His defense lawyer said it was to study Islam. Both sides agree that after returning to the US Mehanna began translating al-Qaeda documents and distributing them on the internet. David Cole is a law professor at Georgetown University. So the verdict of guilty came in part as we said as a result of Mehanna's translating documents, and the prosecution said that was material support of terrorism. What's your reaction to that?

David Cole: Well, the statute under which he was prosecuted, the material support statute, is remarkably broad and defines material support to terrorist organizations to include not just the provision of arms and the provision of money, or the provision of any kind of tangible aid, but also through speech. So, under the statute you can be convicted and thrown in jail for merely engaging in speech that is provided to or done in coordination with a terrorist organization. It's a very, very sweeping statute.

Werman: So legally what are the implications for free speech in this country if translating documents can be interpreted as support for terrorism?

Cole: Well, it's very concerning. I mean there are many news organizations that have for example, put up links to some of Osama Bin Laden's statements. Are they providing material support to al-Qaeda by doing so? We in this country have seen the dangers of government prosecuting people for speech. The history of the First Amendment is sort of built on a series of cases in which the government prosecuted people for advocating crime, but in fact what they did was criminalize descent. Prosecuted people who spoke out against WWI for example, prosecuted people in the McCarthy era for advocating communist ideas, and ultimately the Supreme Court recognized the danger of this sort of criminalization of descent by saying you've gotta prove when you're prosecuting someone for their speech that their speech was intended and likely to produce eminent lawless action -- very, very tough standard to meet. But the reason that that standard is tough is because of the danger of criminalizing descent. And in this case by using the material support statute the government avoided that test altogether. There's no showing that any of his internet activity was intended or likely to produce any eminent action or ever lead to any illegal action whatsoever.

Werman: The jury in the case deliberated pretty quickly and came back with the verdict of guilty. What does the speed of the verdict indicate to you, if anything?

Cole: Well, I mean again, this is the danger. When you criminalize speech, that permits the government to put on all kinds of evidence about people's political views and inclinations. And if those inclinations are ones that we the majority don't like, there's a real risk that juries will convict them not for engaging in or actually furthering any kind of violence, but for engaging in speech that we find profoundly troubling. And that's what the First Amendment is designed to protect, but in this case doesn't see to have done that work.

Werman: So, David Cole, how significant is this as a legal precedent?

Cole: As you may know, the Supreme Court took up a case involving the material support statute just a year and a half ago. In fact, I argued on behalf of a human rights group in the case. And the Supreme Court said there's no First Amendment problem with prosecuting people for engaging in speech with or on behalf of a group that's been labeled terrorists, even if that speech advocates nothing but peace and human rights. So...

Werman: What was their justification?

Cole: Their justification was that anything you say on behalf of a group might sort of burnish its legitimacy and it can then use that legitimacy to go out and raise other support. Then it could use that support to engage in criminal activity. I mean it's a very attenuated chain of causation, not the kind of causation that the Supreme Court at least in the past has said is required when you make speech a crime. So we've now come to the point where we're making pure speech a crime regardless of its actual connection to any concrete criminal conduct, and that's a very, very dangerous place to be.

Werman: Law professor David Cole at Georgetown University, thank you very much.

Cole: Thanks for having me.