Taking Liberties: The War on Terror and the Erosion of American Democracy (9 page)

By this time, the Obama Administration had taken over. But that did not change the government’s stance in this case, any more than it had in the
al-Kidd
case. The new administration asked the Supreme Court to review the Court of Appeals decision in the case, now retitled
Holder v. Humanitarian Law Project
.
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The Supreme Court, which had been resolutely refusing to review all other decisions about the impact of antiterrorism
measures on our constitutional rights (as will be explained in
chapter 11
), agreed to hear this one. At the argument, Obama’s then-Solicitor General, Elena Kagan, reiterated arguments that her Bush-era predecessors had made in the courts below. Yes, the government needs a dragnet this broad, she argued. Activities like Ralph Fertig’s—teaching terrorists how to stop being terrorists—are not distinguishable from activities like Roya Rahmani’s—contributing money to a branch of a designated group—because the benign intent of a person providing any form of “material support” doesn’t matter. “Expert advice” does include counseling on how to use dispute resolution methods because familiarity with these methods is a form of expertise. And the law makes no exceptions for peacemakers—or even for lawyers who associate themselves with a designated group. In response to questions from several Justices, Kagan said that the expanded material support law could indeed be used to prosecute lawyers for filing a brief on behalf of a “foreign terrorist organization.”
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The Supreme Court, disagreeing with the Court of Appeals, thought the material support law’s provisions left no doubt about whether the Humanitarian Law Project’s activities were covered—they were, said the Court, because the group’s members contributed valuable specialized knowledge about dispute resolution and lobbying methods. The Court recognized that applying the statute in these circumstances would ban speech: “Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under [the material support law] depends on what they say.”
¹⁵
A majority of the Court, in an opinion written by Chief Justice John Roberts, ruled against the plaintiffs’ First Amendment claim, however, deciding that prosecuting HLP for its speech would not violate the Constitution. In reaching this conclusion, Roberts relied on two government arguments, neither of which had much empirical support. First, the Court was willing to apply the “money is fungible” theory to this very different form of “contribution.” If the PKK accepts a contribution of training in lobbying skills, the Court reasoned, that group could then spend its financial resources elsewhere. Furthermore, the Court said, the PKK could abuse the skills in question to promote terrorist goals—by cynically engaging in peaceful negotiations in order to buy time to regroup and lull their opponents into complacency, for example.
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The second argument the Court accepted was even more all-encompassing, although equally unsupported by actual evidence: HLP’s working with a terrorist group in this manner could lend the group legitimacy and thus help it to gain support for its illicit purposes.

These arguments are not wholly implausible, but they do not satisfy the traditional heavy burden the government is required to shoulder in order to restrict speech. Under previously established First Amendment law, the government was supposed to have the burden of showing that this prohibition of speech was necessary to serve the compelling purpose of preventing terrorism. It is certainly highly debatable whether the strategy of making a group like PKK radioactive is “necessary” to prevent terrorism, or indeed whether it is effective. Author and antiterrorism expert Jessica Stern, a member of the Council on Foreign Relations, has advanced terrorism studies enormously by talking with Christian, Jewish, and Muslim terrorists to try to understand them instead of trying to guess what makes them tick from afar.
¹⁷
And Ralph Fertig believed, certainly not unreasonably, that it would reduce the evil of terrorism if terrorists could be dissuaded from violence. The First Amendment is supposed to put a heavy thumb on the scale, allowing Americans to speak unless it is not reasonably debatable that our speech will cause imminent harm. But six Justices, professing the judiciary’s incompetence to choose among strategies for fighting terrorism, announced that they were going to defer to the judgment of the political branches. The majority said, “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive.”
¹⁸

The whole point of the First Amendment is that Americans are entitled to disagree with Congress as well as the Executive when it comes to speech. As Justice Stephen Breyer pointed out in his dissent, it is not at all clear that Congress actually was as dismissive of free speech values in this instance as the Court was. The legislative history the majority interpreted as showing that Congress intended the material support law to go this far dated from 1996—before some of the current expansions—and quite clearly referred only to harmful or truly fungible contributions like weapons or money.
¹⁹
And Congress included a provision in its otherwise sweeping law saying, “Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.”
²⁰
So Congress tried to defer to the First Amendment, but the Court, instead of exercising independent judgment to give the First Amendment breathing space, reduced that breathing space by deferring to the executive branch’s broad interpretation of the statute. The Court justified its deference by noting that the Justices do not begin each day with terrorism briefings.
²¹
But that is exactly why the Constitution created a politically insulated judiciary that could maintain an independent point of view in applying First
Amendment principles. The Supreme Court played that role of objective arbiter in the Guantánamo cases, but not here.

In deciding to just trust Congress instead of the Constitution, the Court stifled the Humanitarian Law Project as well as many others who now must fear prosecution and think hard about whether to abandon all kinds of work involving communication with people who might belong to designated groups. For one thing, it is difficult to tell what might count as a contribution of expertise. At the oral argument, Justice Sonia Sotomayor called attention to the breadth of this concept by inquiring whether it would violate the material support law to teach a member of a “foreign terrorist organization” to play the harmonica.
²²
David Cole, HLP’s lawyer, asked rhetorically if the
New York Times
could be prosecuted under this statute for accepting, editing, and publishing an op-ed by Hamas leaders, as it has done.
²³
Among the organizations and people who took this case so personally that they joined amicus briefs urging the Court to uphold our First Amendment traditions was former President Jimmy Carter, whose Carter Center works with insurgent groups whose participation is essential in trying to ensure fair elections in places like Lebanon. Carter told the Court that this statute threatens his mission. To further the goal of promoting peace in the Middle East, the Carter Center had planned a student parliament on peaceful conflict resolution for Palestinians and Israelis that would entail working with members of Hamas, a designated organization, for example.
²⁴
Does the Carter Center now have to compromise its effectiveness by trimming its sails to stay far away from any designated group? Human Rights Watch, which investigates human rights abuses, including abuses by insurgent groups, joined the Carter Center and an organization called Christian Peacemaker Teams in the ACLU’s amicus brief. Would it now be a crime for investigators to do anything more than listen to tales of human rights abuses? May they not try, for example, to persuade a terrorist group not to impress children into its ranks, or simply share educational information about human rights norms?
²⁵
Even if “expert” investigators are scrupulous in trying to toe the spot where they think the line is, might they find themselves visited by the FBI—perhaps under a future administration? Academic researchers and journalists, who might also risk being seen as contributing “specialized knowledge” in conversations with terrorist groups, signed onto an amicus brief filed by the Brennan Center for Justice. One anthropologist, for example, studies the effectiveness of peacekeeping missions and, as part of this research, speaks with insurgent groups and presents their views (among others) in the resulting studies.
²⁶
These scholars’ work, like Jessica Stern’s, will become impossible if all potential members of designated terrorist groups must be treated as radioactive, at the risk of federal prosecution. Dozens of victims or family members of victims of McCarthy-era blacklists, like the Hollywood Ten, also filed an amicus brief to tell the Court that in the current blacklist attempt to force all Americans to shun certain ideas and all people related to those ideas, they see a shameful part of our history repeating itself.
²⁷

Even before the Supreme Court’s decision in
Humanitarian Law Project
, the U.N. Special Rapporteur on Human Rights While Countering Terrorism had criticized the breadth of American material support laws.
²⁸
But Congress has resisted adding an intent requirement or restoring the exception for humanitarian aid to these laws. The only current exception allows provision of religious materials or medicine.
²⁹
Doctors must now question whether they can safely provide medical care, as opposed to merely medicine, to members of groups like the LTTE,
³⁰
or offer them advice about how to contain the spread of contagious diseases. People and organizations—including the International Red Cross—place themselves at risk of prosecution if they provide any kind of humanitarian aid (except the permitted religious materials or medicine) in conflict-torn parts of the world where designated groups may be in control of schools, orphanages, hospitals, and refugee camps. The LTTE, the insurgent Sri Lankan group HLP’s co-plaintiff wanted to influence, controlled one-fifth of Sri Lanka when a devastating tsunami hit in 2004.
³¹
For the half million people living in those areas, the LTTE was effectively the government and so offering any meaningful humanitarian aid had to entail collaborating with this designated terrorist group.
³²
As Ahilan Arulanantham, an American lawyer visiting relatives in Sri Lanka when the tsunami struck, observed: “Unlike our material support laws, the tsunami did not differentiate between areas under the LTTE’s control and those controlled by the Sri Lankan government.”

We have no way of knowing if counting humanitarian aid as material support has actually helped to prevent any terrorist acts, but it is clear that the threat of prosecution can do immeasurable damage to altruistic Americans—and to millions of other needy people around the world. And if American humanitarians have to steer clear of all areas of the world where designated groups operate, including the Middle East or Pakistan, the results may actually be counterproductive to our ultimate desire to disempower and discredit terrorist groups, which will be left to take credit for providing disaster relief or other forms of aid.

The Obama Administration would doubtless protest that it has no intention of prosecuting the Red Cross or Jimmy Carter. If people do trust this Administration, they may indeed be less likely to be deterred from humanitarian work by what may seem like a mere hypothetical threat of prosecution. But Congress has provided a very generous statute of limitations for prosecuting material support offenses. Instead of the usual five years, prosecutors are given eight years to start a material support prosecution and are relieved of all time limits if the offense involves a foreseeable risk of death or serious bodily injury to another person.
³³
Unless Congress amends the dragnet material support law to exclude humanitarians like Ralph Fertig and supporters of democracy like Roya Rahmani, these statutes will continue to be easy trigger weapons ready to be used at will by future administrations—even against people who make decisions to act today.

3.
Charity at Home

America’s relationship with the Muslim community, the Muslim world, cannot, and will not, just be based upon opposition to terrorism.
—President Barack Obama, remarks to the Turkish Parliament (2009)
¹

[Terrorism financing investigations of Muslim charities] can undermine support in the very communities where the government needs it most.
—9/11 Commission Staff Report (2004)
²

I don’t have any religious rights anymore; I ask, am I living in America?
—Sharif B., a Muslim resident of Richardson, Texas (2008)
³

T
HE REACH OF
the Patriot Act–enhanced material support laws can be breathtaking, especially when combined with other aggressive post-9/11 strategies. One Bush Administration Department of Justice lawyer, for example, announced to a court that a “little old lady in Switzerland” who contributed to a charity because she intended to support an Afghani orphanage could be held in Guantánamo as an “enemy combatant”—indefinitely and without due process—if her money was passed along to Al Qaeda.
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But President Bush decided to open an additional front in the war on terrorism financing by enlisting the International Emergency Economic Powers Act (IEEPA), a law that had been designed to clarify and limit the power of presidents to impose blockades or economic sanctions on hostile foreign nations—like Iran, Myanmar, or Libya—in emergency situations.
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Using this statute against private American organizations or individuals was a stretch, but Bush had a surprising precedent: in 1996, Bill Clinton had branded a U.S. citizen named Muhammad Salah a “specially designated terrorist” without any hearing, notice, or trial because he was believed to be a supporter of Hamas. This declaration made it a crime for anyone in the United States to give Salah a job or sell him a sandwich—a kind of economic quarantine.
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