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Sudbury terror suspect asks court to toss his online files

By John M. Guilfoil
Globe Staff / October 5, 2011

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Lawyers for a Sudbury man accused of aiding terrorism are seeking to toss out many of the files found on his computer, including online chats and a controversial video showing dead American soldiers.

In two motions filed Monday, the team representing Tarek Mehanna specifically seeks to exclude video of the mutilation of American servicemen in Iraq, instant message transcripts of Mehanna discussing the videos, and any other computer files that the government cannot prove were intentionally downloaded.

Mehanna, 28, a US citizen, was arrested in 2008 and charged with lying to an FBI investigator.

He was indicted on new charges in 2009, accused of providing material support to terrorist groups and conspiracy to kill in a foreign country.

The first motion seeks to suppress video found of men in Fallujah, Iraq, with the severed head of an American soldier and the mutilated body of a second soldier. The video contains a voiceover track of Osama bin Laden and Abu Musab al-Zarqawi, with bin Laden praising the militants for killing the Americans, according to court documents.

Mehanna’s lawyers believe that the video, while disturbing, is not evidence that Mehanna is a terrorist. They also say that showing the video to a jury would be unfairly prejudicial.

His lawyers also want to exclude instant message comments Mehanna made about the video in 2006.

According to the court documents, Mehanna spoke favorably about the soldiers being mutilated because he was angry that US servicemen raped a teenage Iraqi girl named Abeer Qassim and killed her family a few months earlier.

“The defendant was commenting on a specific incident, in which US servicemen planned and executed the gang rape, murder, and burning of Abeer Qassim, and the murder of Abeer’s entire family,’’ Mehanna’s team argued. “We may not like the defendant’s reaction to this type of revenge, but we must acknowledge that this is a normal, human response.’’

The lawyers threatened to introduce evidence of the girl’s rape and murder to provide graphic context to the dead soldiers in the video.

J.W. Carney of Boston, one of Mehanna’s lawyers, declined to comment on the first motion, beyond the court documents.

In the second motion, Mehanna’s legal team seeks to exclude all computer files that have not been authenticated as Mehanna’s own files that he purposefully downloaded.

As an example, the defense team argues that a photo of the beheading of businessman Nick Berg, found on Mehanna’s computer, was downloaded while Mehanna was visiting a website, and it was automatically cached on the computer.

The court documents also say that Mehanna never actively saved the files on his computer, and that they should not be used as evidence against him.