A War Like No Other (27 page)

One peculiarity of
Humanitarian Law Project
is that, although the statute under scrutiny in the case can correctly be viewed as
an outgrowth of the War on Terror, the case itself concerned advocacy on behalf of two organizations—separatist groups in Turkey and Sri Lanka—with no meaningful connection to al-Qaeda or to any other entity connected to the September 11 attacks or at war with the United States. The decision thus enables us to see that, in the long run, disregard for constitutional principles during wartime has grave consequences not only for the nation’s enemies but for the people as a whole.

Chapter 8

CRIMINALIZING POLITICAL ADVOCACY

I
n the years following the September 11, 2001, attacks, combating terrorism became a matter of great public urgency, and as part of that endeavor we adopted a number of policies that have compromised important constitutional principles. Many of these policies pertain to the treatment of suspected terrorists who were captured as part of the War on Terror. Some of these prisoners have been subjected to interrogation techniques that might properly be considered torture. Some are being tried by military commissions. Still others are being held for prolonged, indefinite periods of time without being charged with a crime or allowed the writ of habeas corpus or any other means to test the legality of their imprisonment.

The challenge to our constitutional order has not been confined to the policies governing suspected terrorists in our custody. In the immediate wake of the September 11 attacks, President Bush authorized the National Security Agency (NSA) to use wiretaps without seeking court authorization.
¹
These taps were used to monitor calls made by Americans to persons abroad suspected
of having ties to al-Qaeda. The existence of this program was disclosed in December 2005 and soon became the subject of great public controversy and a number of lawsuits. In January 2007, President Bush discontinued this program as a matter of policy. Later that year and again in 2008, President Bush obtained congressional authorization for such warrantless wiretaps, embraced the law as constitutional, and declared that warrantless wiretaps are an essential tool in the fight against terrorism.

The 2008 congressional grant of authority removed the conflict between the executive’s action and the Foreign Intelligence Surveillance Act (FISA) of 1978. It did not, however, overcome the objection to the NSA program based on the Fourth Amendment, which requires that, as a general matter, wiretaps need to be authorized by a court and based on probable cause. The warrant requirement seeks to curb arbitrary action of the executive and thereby protect the privacy and communicative freedom of all Americans, most immediately journalists, who often develop their stories through telephone calls to a large network of persons in the Middle East—some of whom may be thought to have ties to al-Qaeda.

This essay focuses on a related threat to our constitutional order—the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s 2010 decision in
Holder v. Humanitarian Law Project,
²
which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy—for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause—poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution is likely to stop it altogether.

A focus on the
Humanitarian Law Project
decision will also
enable us to assign responsibility more accurately for the debasement of the Constitution in the post–9/11 era. We will be able to see more clearly than we could through an analysis of the policies governing the treatment of prisoners, or even the NSA wiretapping program, that the threat to our liberty derives not just from President Bush’s unilateral excesses, but also from policies that have been defended and perpetuated by President Obama and embraced by the other branches of government, including the Supreme Court.
³
All three branches share responsibility for the abuses of the Constitution that we now confront.

The Statute

Terrorism—acts of violence in the pursuit of some political goal—is the subject of a vast panoply of criminal statutes. Killing civilians or high-level government officials is always illegal. Congress decided, however, that such statutes were not sufficient, and a strategy was devised—first enacted in 1994, and later amended in 2001 and again in 2004—to combat organizations that nourish, support, and direct terrorist activities.
⁴
Congress hoped that isolating and starving these organizations would lessen the risk of terrorism.

The statute at issue in
Humanitarian Law Project
applies only to foreign, as opposed to domestic, terrorist organizations. The statute does not define the word “foreign,” but presumably it requires that the organization be based abroad and that its membership be largely constituted of foreign nationals. Some organizations that meet this requirement, such as al-Qaeda, may pose threats to targets within the United States, as manifested by the attacks of 9/11. But others, such as the PKK (Kurdistan Workers Party) in Turkey or the Tamil Tigers in Sri Lanka—the specific organizations involved in
Humanitarian Law Project
—are not likely to pose such a threat because their acts of violence are confined to
the territories in which they are based. Congress’s interest in regulating such organizations may stem from a desire to protect individual American citizens traveling abroad who might become victims of the terrorist activities of these organizations. Or Congress may have sought to further foreign policy objectives of the United States by helping allies—such as Turkey or Sri Lanka—in their effort to combat terrorism occurring within their borders.

In pursuit of these aims, Congress established a procedure in the executive branch for designating certain organizations “foreign terrorist organizations.”
⁵
The power to make this designation is vested in the secretary of state, who is to make his or her decision on the basis of an administrative record. This record essentially consists of a compilation of information prepared by a special office within the Department of State. The secretary of state is required to consult with the secretary of the treasury and the attorney general, and the administrative record may include information from their departments. The alleged terrorist organization and its members are not given any notice of this proceeding and thus do not have an opportunity to participate in the proceeding in any way.

Seven days before announcing a decision, the secretary of state must advise a select group of congressional leaders of the intention to designate a group a foreign terrorist organization. The secretary must then publish the designation in the Federal Register, at which time the designation takes effect. An organization designated a foreign terrorist organization can seek judicial review of the secretary’s determination in the Court of Appeals for the District of Columbia Circuit, but that review is limited to determining, on the basis of the administrative record, whether the secretary’s action is arbitrary and capricious or otherwise exceeds his or her authority. The secretary may supplement the administrative record by submitting to the Court of Appeals classified information, which can be examined
in chambers and out of view of the attorneys for the designated organization. Otherwise, there is no evidentiary hearing in the Court of Appeals and no opportunity for the designated organization to supplement the administrative record in any way.

The designation procedure established by Congress is the prelude to the key operative provision of the statute.
⁶
This provision bans “material support” to a designated foreign terrorist organization and subjects those who violate the ban to up to fifteen years in prison. Here, it is important to note an ambiguity in the word “material.” It may mean “tangible” and thus include the provision of physical objects such as computers or mobile phones or guns or even funds. “Material” also means “important” or “significant,” and it is this meaning of the word that enables the statute to reach political advocacy.

The statute lists the various ways support might be given to a designated organization, and in 2004 the statute was amended to include the provision of “services” on that list.
⁷
In
Humanitarian Law Project,
the government contended that political advocacy—for example, a speech by an American citizen to a group of American citizens defending the goals of the organization—should be considered a service. The Court, in an opinion by Chief Justice Roberts, agreed with this reading of the statute.
⁸

Some, but not all, organizations that engage in violent terrorism also provide a wide range of peaceful or humanitarian services. Although members of such organizations may kill civilians or high-level government officials, they may also distribute food to the needy. This duality of function does not appear to be true of al-Qaeda, the principal focus of the United States’ War on Terror. It is true, however, of Hamas, Hezbollah, and the two organizations that were the specific subjects in
Humanitarian Law Project
—the PKK in Turkey, seeking autonomy and cultural rights for the Kurds, and the Tamil Tigers in Sri Lanka,
recently annihilated by the Sri Lankan government but which had for decades sought autonomy for Tamils on the island.
⁹

A question therefore arose before the Court as to whether it should make any difference if the defendants provided material support to the peaceful or humanitarian—as opposed to the violent—activities of the organization. Roberts read the statute as containing a universal ban on support, making no difference whatsoever whether the support, worldly or otherwise, is given to the organization to further its peaceful or humanitarian as opposed to its violent activities.
¹⁰
All support is criminally proscribed.

When the material support consists of money, one can well understand Congress’s insistence on a universal ban. Money is fungible. Money given for humanitarian purposes, such as for buying food, might well be used to purchase arms. Even if the money is used for buying food, it would free up financial resources that might then be used for the violent activities of the organization. However, a policy of compartmentalization is far more plausible when the support consists of political advocacy that benefits the organization. Congress might well have been concerned with the speech that extolled the violent activities of the group but not the humanitarian.

In a crucial turn of the argument, the chief justice refused to read the statute in such a way as to allow any compartmentalization, even in the context of advocacy.
¹¹
A speech extolling only the humanitarian projects of the organization or defending the justness of the organization’s goals, Roberts reasoned, might lend legitimacy to the organization and thereby help it solicit funds or recruit members that might then be used to further the organization’s violent activities. Roberts also maintained that Congress might have feared that exempting any speech from the criminal ban of the statute would jeopardize our relations with the foreign nation trying to suppress the organization, even if it
is assumed that the support entailed in the speech was a benefit only to the organization’s humanitarian activities. For example, at one point Turkey was at war with, and determined thoroughly to defeat, the PKK and the achievement of its separatist goals, and in that spirit may have tried to deny any support to any of the PKK’s activities, even those that are wholly peaceful. And, according to Roberts, Congress, anxious to foster international cooperation with an ally such as Turkey, may have authorized the secretary of state, through the exercise of the power to designate the PKK a foreign terrorist organization, to support that endeavor.

Although Roberts read the statute in such a way as to deny the compartmentalization of the violent and humanitarian activities of a designated organization, he did, in fact, recognize one limitation in the material-support statute as it applies to political advocacy. This limitation—so central to Roberts’s opinion—is premised on the distinction between independent and coordinated advocacy. Coordinated advocacy consists of advocacy that occurs in coordination with, or at the direction of, a designated terrorist organization, while independent advocacy remains a residual category—all advocacy that is not directed by, or coordinated with, a designated terrorist organization. Roberts read the statute to cover only coordinated advocacy. He insisted, “Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and [the Tamil Tigers], the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations.”
¹²
The catch, however, is that in Roberts’s opinion the statute allows individuals to engage in such advocacy only if it is independent, as opposed to coordinated, advocacy.

Roberts maintained that the distinction between independent and coordinated speech is implicit in the term “services”—the
category of material support that brings political advocacy within the reach of the statute. I am doubtful of this reading. According to Roberts, a service to an organization is an activity done for the benefit of the organization. Yet independent advocacy extolling the justness of an organization’s claim can be as much a service to the organization—a benefit done for, or conferred on, the organization—as coordinated advocacy. What moved Roberts to make the distinction between independent and coordinated advocacy, to my mind, is not the word “services” but a view of the Constitution—a view that remains to be examined. This view holds that coordinated advocacy on behalf of a foreign terrorist organization is not protected by the First Amendment.