How Easy It Is For Peaceful People to Violate the Patriot Act and Face 15 Years in Jail

Give some advice to Hamas or al Qaeda about how they can peacefully achieve their objectives -- and the Supreme Court might call it material aid.
By Joshua Holland, AlterNet
Posted on July 10, 2010, Printed on July 10, 2010

Last month, the Supreme Court exposed Americans to jail sentences of up to 15 years just for giving advice to groups the U.S. government considers untouchable. In Holder v. Humanitarian Law Project, the court ruled that the USA Patriot Act's expanded definition of “material support” for “foreign terrorist organizations” passes Constitutional muster. The broad wording of the statute not only makes it a crime to support violent activities, but also prohibits Americans from offering "services" or "training, expert advice or assistance" to any entity designated as a terrorist group.

Providing weapons, materials or know-how that might help terrorists commit violent acts has long been a crime, but it was only with the rushed passage of the Patriot Act just weeks following the 9/11 attacks that “expert advice or assistance” was added to the definition of “material support.”

The Constitution offers Americans the freedom of speech and association. There are only a few exceptions -- you don’t have a right to associate with people conducting a criminal act, and your freedom of speech doesn’t extend to "fighting words," inciting a riot or other forms of speech that might lead to violence.

In criminalizing non-violent speech, the ruling is anathema to our system of constitutional government. In this article I’ll demonstrate just how easy it is to violate the Patriot Act by giving some peaceful advice to a few of the 45 groups the State Department has designated as foreign terrorist organizations.

To Hezbollah: Domestic politics aside, the legitimacy of your organization rests on its ability to provide social services and its participation in Lebanese politics, not from your paramilitary wing’s clashes with the Israeli Defense Forces. Lay down your arms and consolidate your political strength.

To the Revolutionary Armed Forces of Colombia (FARC): Consider re-establishing the Guerrilla Coordinating Board you joined in order to negotiate with the Colombian government. Re-establish prisoner exchanges with Bogotá as a confidence builder, and stop the policy of assassinating indigenous peoples who oppose your agenda.

To the Real Irish Republican Army (IRA): Given the history and reality on the ground, it’s virtually impossible to achieve independence and unification of Ireland by force. Disband your military organization and join the 10-year-old peace process. And engage with the government in Northern Ireland, which has attained political legitimacy along the way.

The Supreme Court has ruled that if I leave it at that -- expressing my own views without being in contact with any group designated as a terrorist organization -- I’m fine. But if I send this column to an official of Hezbollah or FARC -- if I communicate with them directly -- I’ll be committing a serious crime.

When the “material support” statute was first enacted in the 1990s, a person didn’t need to know that a group they supported was listed as a terrorist organization in order to run afoul of the law. But after a district court agreed to hear a challenge to the provision, Congress modified the law so that people who, for example, unwittingly sent a few bucks to a charity that turned out to be associated with terrorism would be in the clear. However, in places like Gaza, where Hamas controls a lot of ground, it’s virtually impossible to deliver humanitarian relief without talking to members of a “terrorist” organization.

Since 2001, Islamic charities have struggled to deal with the uncertainty caused by the material support provision. According to the Bill of Rights Defense Committee, “Muslims fulfilling their obligation to contribute to [charity]…risk inadvertently supporting a current or future [Foreign Terrorist Organization]. In 2004, in order to avoid this, Muslim leaders asked the DOJ for a list of acceptable charities. The DOJ responded that their request was ‘impossible to fulfill’ and that it was ‘not in a position to put out lists of any kind, particularly of any organizations that are good or bad.’" Several people have already been jailed in the United States for their charitable activities in the Islamic world.

Holder v. Humanitarian Law Project

The court handed down its decision in a case brought by the Humanitarian Law Project, an NGO that sought to advise the Kurdistan Worker’s Party (PKK) -- which the U.S. considers a terrorist organization -- on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government. In its 6-3 decision, the supremes ruled that the statute didn’t trample the organization’s members’ rights to free speech and free assembly as long as they had no direct contact with the PKK. Ironically, in theory that means members of the Humanitarian Law Project can publicly urge the PKK to carry out deadly acts of terrorism without running afoul of the law, but they can’t work with the group in an effort to stop the violence.

The decision casts the court’s rightward balance in sharp relief. Just months ago, the same court ruled in the Citizens United case that the government doesn’t have a sufficiently compelling interest in limiting political campaign dollars to infringe on the free speech rights of corporations -- “artificial persons.” But the court, dismissing the admonition that those who would give up essential liberties for some temporary security deserve neither, was quick to accept the Justice Department’s claim that fighting terrorism trumps the rights of the Humanitarian Law Project. Writing for the majority, Chief Justice John Roberts cited the Federalist Papers, which held that "security against foreign danger" is an "avowed and essential object" of the U.S. government.

Opening the Door for (More) Political Prosecutions

Arguably, the most fundamental flaw in the statute is that there is no apolitical and universally accepted definition of “terrorism.” The United Nations has wrangled with the issue for years, and the major obstacle is simple to understand: everyone wants to define it as political violence in furtherance of a goal with which they disagree.

By criminalizing even a tenuous association with groups the U.S. government lists as terrorist organizations, the statute opens the door to prosecuting people for taking unpopular sides in remote conflicts.

Sometimes, however, history proves those people were on the “right” side. Perhaps the most obvious example is the African National Congress (ANC), which the United States designated as a terrorist organization during the 1980s. If the Patriot Act had been in effect at the time, any U.S. citizen who communicated with the ANC while organizing opposition to South Africa’s racist system would have been eligible for a lengthy prison term. Now, it's the ruling party in today’s post-apartheid South Africa.

The ANC isn’t the only example. In the early 1990s, Robert Gelbard, Bill Clinton's special envoy to the Balkans, described the Kosovo Liberation Army as, "without any questions, a terrorist group." As journalist Michael Moran noted, by the end of the decade, “the United States had embraced the KLA's cause,” and, “after the war, the KLA was transformed into the Kosovo Protection Corps, which now works alongside NATO forces patrolling the province.”

An American may have sided with the Serbs or with the KLA, but if the Patriot Act had been in effect, engaging the latter would have constituted a serious crime. Other groups once designated as terrorist organizations that have either laid down their arms or joined the political process include the Irish Republican Army and the Palestine Liberation Organization.

At the same time, some organizations that commit terrible crimes against civilians never make the list because their goals dovetail with our own. Sometimes we even support them. During the 1980s, the Nicaraguan contras were known to torture, rape and kill innocent civilians sympathetic to the Sandinistas, but Ronald Reagan praised the group as heroic “freedom fighters.” In Iran, the Mujahedin-e Kalq (MEK) is universally condemned as a terrorist organization, and the United States government has listed it as one. But that didn’t stop former Colorado Rep. Tom Tancredo from saying, “We should be aiding them, instead of restricting their activities. We can use the MEK; they are in fact warriors. Where we need to use that kind of force, we can use them."

It’s worth noting that Islamic groups lead the list of designated terrorist organizations, followed by communists and nationalists. Groups like the Gush Emunim Underground -- a radical Israeli settler group that was responsible for a series of attacks against Palestinian civilians -- don’t make the cut. It’s a clear signal that the State Department’s list is highly politicized.

Making matters worse is the fact that some organizations that have committed acts of terrorism also have legitimate political arms with which humanitarian aid organizations must communicate in order to do their work. In Lebanon, Hezbollah is both a paramilitary group and a major player in the country’s political scene. It provides social services -- operating schools and hospitals -- but is designated a terrorist organization by the United States. As a result, American aid workers won’t be able to operate in much of Lebanon without risking criminal prosecution.

Criminalizing Peacemaking

As journalist Courtney Martin noted, “the definition of material support includes everything from providing aid to distributing literature to political advocacy,” adding that it’s “a step in the wrong direction for the post-September 11 world.”

The law essentially criminalizes promoting dialogue in conflict zones and undermines efforts to provide nonviolent solutions to previously violent groups, equating such actions with trafficking weapons. In a world that demands precise, strategic interventions to prevent and curb terrorism, this law is like a blunt object. We're not promoting peace; we're advocating the equivalent of the silent treatment.

In the 1980s, a concept known as “multi-track diplomacy” emerged. Traditional negotiations between states -- known as “track one” diplomacy -- had had limited success, in part because states couldn’t always negotiate with non-state actors like rebel groups. Experts in conflict resolution began to see how non-state actors -- professional conflict negotiators, institutions like the UN, international businesses, religious organizations and other members of civil society -- could play a great role in bringing long-standing, seemingly intractable conflicts to an end. “Track two” diplomacy (some academics further divide track two into various other tracks) was crucial in bringing peace to Northern Ireland. In Mozambique, a bloody 17-year civil war ended when the Order of Sant' Egidio, an Italian NGO, mediated peace talks between the various parties to the conflict.

The group, which believes that “war is the mother of all poverty,” continues its peacemaking efforts in the Congo and the Balkans. An American NGO that tried to emulate its success would be violating the Patriot Act, exposing its members to harsh criminal penalties.

Writing for the majority, Chief Justice Roberts claimed that direct contact of any kind with Americans “also importantly helps lend legitimacy to foreign terrorist groups -- legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds -- all of which facilitate more terrorist attacks."

It’s an ironic statement in a ruling that prohibits Americans from acting as peacemakers or aiding people in crisis. There’s broad agreement that winning the “war on terror” requires isolating extremists, and winning the hearts and minds of the populations of the countries in which they operate. The rest of the world will continue to see complex conflicts as just that -- complex. In its decision, the court codified a dangerous tendency to see them in black and white, one that has prevailed in the U.S. since the attacks of 9/11.

The rest of the world will continue to see multi-track diplomacy as an example of best practices for resolving deeply entrenched conflicts. It will continue to see humanitarian relief and the engagement of civil society as crucially important to winning the battle of ideas and marginalizing violent actors.

But with the threat of a criminal rap, there won’t be many Americans involved in those efforts. In its fear-based logic, the court sought to isolate violent extremists, but its decision will only end up isolating the United States.

The Worst Supreme Court Decision of the Term

Echoes of Lawfare
By JOANNE MARINER

What was the worst ruling of the Supreme Court term that just ended? Citizens United v. Federal Election Commission, the corporate campaign spending decision that President Obama criticized in January, could make a strong claim to that title, but defenders of the First Amendment would point to the Court's ruling two weeks ago in Holder v. Humanitarian Law Project.

The Humanitarian Law Project case involved peace and human rights activists who sought an injunction that would allow them to advise and train militant groups to use lawful means to achieve political ends. Specifically, the plaintiffs wanted to train Kurdish nationalists in Turkey on how to use international law to resolve disputes peacefully, and how to petition 'representative bodies such as the United Nations" for relief. They also wanted to engage in political advocacy on behalf of the Kurds in Turkey and the Tamil Tigers in Sri Lanka.

Both of the groups with which the plaintiffs sought to communicate had been deemed 'foreign terrorist organizations" under US law. Because of this designation, the plaintiffs' proposed speech was arguably barred by a federal law that criminalizes the provision of 'material support" to terrorist organizations, including support in the form of training, expert advice, personnel, and services.

The Court acknowledged that the case involved content-based restrictions on speech, normally an area in which the First Amendment requires the judiciary to enforce stringent protections against government overreaching. Yet in a 6-3 decision, the Court's conservative majority, joined by departing Justice John Paul Stevens, rejected the plaintiffs' claims. The Court found that the government's compelling interest in preventing terrorism outweighed the plaintiffs' free speech rights.

Indeed, it reached this conclusion without even asking the government to provide empirical evidence to show that the goal of preventing terrorism would actually be served by the speech restrictions at issue.

Heavy Sentences for Negotiating Peace

Human Rights Watch, together with the Carter Center, the International Crisis Group, and several other peace, human rights, and humanitarian aid groups, filed an amicus brief in support of the plaintiffs in Humanitarian Law Project. Noting that the challenged statute imposes sentences of up to 15 years in prison for the crime of providing advice and training to a designated 'foreign terrorist organization," the groups explained how their own activities might potentially expose them to such penalties.

The groups were unanimous in their condemnation of terrorism and terrorist methods. But as they told the Court, 'peace-making, conflict resolution, human rights advocacy, and the provision of aid to needy civilians sometimes requires direct engagement with groups and individuals that resort to or support violence," including those that have been designated as terrorist.

The Carter Center, for example, said that in the course of trying to address bloody conflicts in places like Uganda, Nepal and Gaza, its representatives might meet with members of armed factions to seek to mediate peaceful solutions. Human Rights Watch offered concrete examples of meeting with designated terrorist groups like the FARC, the ELN, and the LTTE (also known as the Tamil Tigers), in order to confront them with evidence of human rights violations and advise them of their obligation to respect international law.

The human rights and humanitarian aid groups explained their logical understanding of the First Amendment's reach. 'If a U.S. human rights organization issues a report that documents the LTTE's use of child soldiers, condemns the practice, lists a set of concrete recommendations it believes the LTTE should adopt to cease the abuse, and provides specific advice as to how the LTTE should implement the recommendations in practice, there is surely no doubt that this activity is fully protected by the First Amendment," their brief argued. 'The mere fact that it is communicated to the LTTE (an entity engaged in some illegal conduct) rather than The New York Times editorial board cannot remove this kind of peaceful speech and advocacy from constitutional protection."

Echoes of Lawfare

The Court's opinion in Humanitarian Law Project backed away from decades of First Amendment caselaw, including landmark rulings from the Cold War era. It deferred to the government's argument that national security interests justified restrictions on plaintiffs' speech, even though the claim lacked empirical support, stating that where national security is concerned, conclusions can 'be based on informed judgment rather than concrete evidence."

In speculating about how designated terrorist groups might gain dangerous benefit from skills imparted by the plaintiffs, the Court's tone was especially harsh. Echoing right-wing critics of 'lawfare," the Court mused that a terrorist group that was familiar with the international legal system might use this expertise "to threaten, manipulate, and disrupt." Its portrayal of international law as a tool in the hands of terrorists was reminiscent of hardline ideologues from the Bush Administration.

But unfortunately, although the Bush Administration litigated the Humanitarian Law Project case up through the courts, the final Supreme Court judgment belongs to President Obama. It was appropriate, in fact, that the decision in Humanitarian Law Project was issued just before the beginning of confirmation hearings for Obama's latest Supreme Court nominee, Elena Kagan. Kagan, during her time as Solicitor General, argued the government's appeal of the case before the Supreme Court; her aggressive advocacy is reflected in the opinion.

Scotus ruling makes ‘it a crime to work for peace and human rights’

Published on 06-24-2010

Group: Former President Carter could be prosecuted for monitoring fair elections in Lebanon

The US Supreme Court endorsed Monday a broad reading of the law criminalizing "material support" to terrorism, a statute that critics argue targets legitimate free speech.

In a six to three vote, the highest US court sided with the government and found that an NGO could face prosecution for providing non-terror-related support, including rights training, to US-designated terror groups.

The case involved the Humanitarian Law Project, a human rights group, which the court ruled could face prosecution under the material support statute for providing human rights or conflict resolution training to groups including the Kurdish PKK or the Tamil Tigers.

"The material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue," the court ruling said.

In a press release sent to RAW STORY, the Center for Constitutional Rights argues that the ruling "criminalizes" free speech, and that even former President Jimmy Carter could face potential prosecution.

Today, the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v. Humanitarian Law Project, the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims. Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon. President Carter submitted an amicus brief in the case.

Chief Justice Roberts wrote for the majority, affirming in part, reversing in part, and remanding the case back to the lower court for review; Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.

Created in 1996, the "material support" language was strengthened under the Patriot Act, which Congress passed in the aftermath of the September 11, 2001 attacks and reauthorized with some changes in 2004.

It has usually been used to prosecute individuals who have helped organize or finance terrorist attacks.

The law has become a popular tool for prosecutors, who have prosecuted some 150 people under the statute in the United States, obtaining convictions in around 60 cases, and sentences ranging up to life in prison.

The Associated Press adds,

In his dissent, Breyer recognized the importance of denying money and other resources to terror groups. "I do not dispute the importance of this interest," he said. "But I do dispute whether the interest can justify the statute's criminal prohibition."

Breyer said the aid groups' mission is entirely peaceful and consists only of political speech, including how to petition the U.N.

"Not even the 'serious and deadly problem' of international terrorism can require automatic forfeiture of First Amendment rights," he said.

The CCR statement adds:

Said CCR Cooperating Attorney David Cole, “We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong.”

Originally brought in 1998, the case challenges the constitutionality of laws that make it a crime to provide “material support” to groups the administration has designated as “terrorist.” CCR’s clients sought to engage in speech advocating only nonviolent, lawful ends, but the government took the position that any such speech, including even filing an amicus brief in the U.S. Supreme Court, would be a crime if done in support of a designated “terrorist group.”

Said CCR Senior Attorney Shayana Kadidal, “The Court’s decision confirms the extraordinary scope of the material support statute’s criminalization of speech. But it also notes that the scope of the prohibitions may not be clear in every application, and that remains the case for the many difficult questions raised at argument but dodged by today’s opinion, including whether publishing an op-ed or submitting an amicus brief in court arguing that a group does not belong on the list is a criminal act. The onus is now on Congress and the Obama administration to ensure that humanitarian groups may engage in human rights advocacy, training in non-violent conflict resolution, and humanitarian assistance in crisis zones without fearing criminal prosecution.”

The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive. Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny. This is one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.

The Constitution Project also blasted the court's decision in a press release sent to RAW STORY:

Today, the Supreme Court, in Holder v. Humanitarian Law Project, upheld the extremely broad application of federal laws that prohibit material support for designated terrorist groups. The lawsuit challenged the application of the "material support" laws to organizations and individuals who seek to provide peacebuilding and human rights training to groups designated as terrorist organizations. Writing for a total of six justices, Chief Justice Roberts today rejected this challenge, finding that the application of the material support statutes to punish these groups' pure speech that seeks to further lawful, non-violent ends does not run afoul of the Constitution. Although the Court agreed that the statute's regulation of speech must be subject to a demanding level of scrutiny, the Court found that these sweeping restrictions were justified by the Government's interests in combating terrorism.

"The Constitution Project is thoroughly dismayed by today's Supreme Court's decision, which will allow for the prosecution of individuals for constitutionally protected, peaceful, speech and association activities," said Sharon Bradford Franklin, Constitution Project Senior Counsel. "As much as our government must have the tools needed to punish those who work to enable acts of terrorism, it is essential that these laws respect constitutional freedoms. We regret that the Court refused to rein in the overbroad sweep of the material support statutes to ensure that terrorist activities are prohibited but that free speech and association are still safeguarded by the First Amendment. Training groups to pursue peaceful resolution of their disputes should be encouraged, not made criminal."

Last November, the Constitution Project, together with The Rutherford Institute, filed an amicus brief in the case, urging the Supreme Court to strike down the provisions of the material support laws that conflict with First Amendment protections for free speech and freedom of association. Also in November, the Constitution Project's Liberty and Security Committee released Reforming the Material Support Laws: Constitutional Concerns Presented by Prohibitions on Material Support to "Terrorist Organizations," which proposed eight reforms to remedy serious First, Fourth and Fifth Amendment concerns created by existing material support laws.

To view the Constitution Project's amicus brief in Holder v. Humanitarian Law Project, go to: http://www.constitutionproject.org/manage/file/357.pdf.

A statement sent to RAW STORY by the ACLU adds,

The following can be attributed to former President Jimmy Carter, founder of the Carter Center:

"We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."

The following can be attributed to Melissa Goodman, staff attorney with the ACLU National Security Project:

"Today's decision is disappointing and inconsistent with our First Amendment position. The government should not be in the business of criminalizing speech meant to promote peace and human rights."