The Feds say Mehanna and two of his buddies traveled to Yemen in February 2004 to seek terrorist training — Mehanna maintains it was for religious studies — but were told by a man there that "all that stuff is gone ever since the plans hit the Twin Towers."
As for the alleged shopping-mall attack outlined in Loucks's press conference? The plan was ultimately abandoned, the affidavit says, because Mehanna couldn't get the guns.
"Does it not seem ridiculous to say they didn't go through with this plot because they couldn't obtain the firearms?" asks Tamer Mehanna. "Who the hell can't get guns? You're gonna tell me that the most sophisticated plot my brother could cook up was to get guns, walk into a random mall, and start shooting?"
THE SECRET PROSECUTION
Whatever the Feds are sitting on, it "contains sensitive and classified information concerning United States intelligence sources and methods and other information related to efforts of the United States to conduct counterterrorism investigations, including the manner and means by which those investigations are conducted," according to a memo filed by the Attorney General's Office in July. "As a result, the unauthorized disclosure of the information could harm the national-security interests of the United States."
Mehanna's legal team is left defending him against the portion of the FBI's case that isn't classified. They have argued that, in the instant messages harvested by the FBI, Mehanna voices his opposition to the war in Iraq and his admiration toward Osama bin Laden and other fundamentalist fighters — protected free speech, even if it is subversive and anti-American.
As for the evidence of providing material support by translating documents and viewing "jihadi" material, Carney remains adamant that such actions are not jailable offenses. Viewing jihadi propaganda and discussing the United States military actions overseas is "core political speech protected by the First Amendment," Carney says. "Protesting the Iraq and Afghanistan wars is no different than Vietnam protest in the 1960s."
Even when it comes to the basic mechanics of discovery — the prosecution's obligation to provide the defense with the materials it will use in its case — the government has been slippery. Wednesday, September 7, was supposed to be the final hearing before Mehanna's trial, like a weigh-in before a heavyweight fight. As it turned out, the prosecution finally produced a preview of its case — in the form of 17,000 pages of evidence, some of it in English, some in Arabic. The defense team quickly asked the judge to push back the trial, on the grounds that it didn't have enough time to absorb the sudden influx of documents. O'Toole reluctantly agreed — taking the extraordinary step of postponing the long-scheduled trial date for another three weeks.
On October 24, Tarek Mehanna will walk into federal court accused of terrorism, not knowing much of the evidence against him, and unable to confront the confidential informants who are responsible for the bulk of the government's case against him.
Anyone who saw the 2009 press conference where Michael Loucks described machine-gun-wielding terrorists and a bloody assault on a mall might be surprised to learn that the US government's case against Mehanna now revolves around computer files, phone calls, and Arabic-to-English translations.