The fight for hearts and minds in the global struggle against terrorism may not yet be over, but the Supreme Court has thrust a white flag into the hands of one faction in that effort. It is now illegal to try to win our "enemies" over with appeals to reason, humanity or self-preservation. Apparently, the only way to legally engage designated terrorist organizations is to kill them--anything else may be "material support," and land you in prison.
The Supreme Court's June 21 decision in Holder v. Humanitarian Law Project held conflict mediation, human rights training and peace-building efforts aimed at turning terrorist groups away from violence can be criminalized, punishable by 15+ years in prison and seizure of assets. These are some of the activities that could be characterized as "knowingly provid[ing] material support or resources to a foreign terrorist organization," a vaguely worded catch-all provision of the anti-terrorism laws passed in the wake of 9/11.
That vagueness has left legitimate charitable groups of peace activists, humanitarian aid workers and medical service providers under a dark cloud of fear and suspicion- unable to provide their services to victims of natural disasters and political violence because those victims might be under the thumb of violent political factions on the US State Department's terrorist watch list. It also prevents them from trying to talk those violent factions into laying down their weapons and seeking peaceful resolution to their disputes.
The chilling impact this decision will have on efforts to forge peace and protect human rights will mean more suffering for innocent bystanders in political struggles and lost opportunities for peace.
The case involved the federal law that sanctions anyone who provides "expert advice," "training," "personnel" and "service," to a foreign terrorist organization (FTO), as designated by the U.S. government. The Humanitarian Law Project ("HLP") sought to provide assistance for human rights advocacy and peace-making to a designated terrorist organization, but feared facing criminal charges for providing those groups with "material support." After multiple lower court rulings had found the statute unconstitutionally vague, the Department of Justice asked the Supreme Court to review the case.
The Court ruled that even though pure speech is entitled to a high level of constitutional scrutiny, it would forgo such scrutiny and defer to Congress and the executive branch, which asserted unsupported, theoretical findings that support aimed at countering violence can somehow indirectly support violence. The Court's reasoning was that the matter involves national security.
With its overly deferential approach, the Court failed to fulfill its responsibilities in the checks-and-balances system that keeps our democracy healthy. If it had looked behind the broad generalizations cited by the government, it would have seen there are no facts either in the Congressional Record or elsewhere that support the Congressional or State Department "findings." And even if there are some circumstances where conflict mediation and human rights training can be co-opted to support violence, it is not inevitable that it will happen in all cases.
For an obvious example of the fault in the findings, one need look no further than the Good Friday Accords that brought a lasting peace to Northern Ireland for the first time in more than eight centuries. For years, non-governmental organizations (NGOs) had worked to bring violent factions of Catholics and Protestants to the bargaining table. Their work behind the scenes was instrumental in persuading those groups--"terrorists" in the eyes of most of their captive civilian populations, as well as the governments seeking to disarm them--to put down their weapons and negotiate a peaceful resolution to 850 years of violence.
If the "material support" law had been in place, as authorized by the Supreme Court today, those organizations would have been criminals. And the people of Northern Ireland would likely still be victims of sectarian violence that only a very few supported.
"Orwellian" doesn't begin to describe a law that makes it a crime to promote peaceful conflict resolution. While nobody would argue that Congress and the executive shouldn't take all necessary and justifiable steps to prevent terrorism and protect the nation from violent extremists, what rational person would argue that turning extremists away from violence runs contrary to that goal?
Such an obviously misguided law cannot be allowed to stand. Since the Supreme Court has chosen to hold the Constitution hostage to the fear of terrorism, Congress must step up and do its duty to craft a law that recognizes the peaceful paths to fighting terrorism and helping the innocent civilians who are every bit as victimized by extremists in their midst as the extremists' supposed enemies.
In the meantime, Secretary of State Hillary Clinton should use her authority under the existing law to carve out exceptions for organizations that work through peaceful means toward peaceful ends. Additionally, the administration can issue standards for enforcement that gives NGOs a clear explanation of the difference between legal and criminal conduct in their charitable work.
Unless and until that happens, the groups that are fighting the War on Terror with words instead of guns would be wise to stand down.