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​Don’t Prosecute the Peacemakers 

2/24/2010

4 Comments

 
The U.S. Supreme Court soon will decide whether peacemakers can be sent to jail for trying to end civil wars and promote human rights.  The central issue in Holder v. Humanitarian Law Project, which comes before the court today, is whether conflict resolution professionals and human rights advocates are providing “material support” to terrorist organizations when they attempt to persuade members of violent resistance movements to comply with international law, teach them how to pursue their causes through the legal system, and include them in talks designed to end hostilities.   The lower courts essentially held that training, advocacy, facilitation and similar forms of assistance intended to end violence and promote the rule of law are not prohibited under the anti-terrorism statute the government seeks to apply to these activities.   The Supreme Court should affirm and expand the lower courts’ decisions.

Groups that use violence against noncombatants are deemed terrorist organizations under U.S. law. This characterization is premised on the belief, which I share, that violence against innocents is reprehensible and far exceeds the bounds of fair play, no matter how legitimate a group’s desire for political recognition or independence.   Talk and nonviolent forms of advocacy are how politics should be played.

How ironic, then, that U.S. law could be interpreted to prohibit NGOs from helping representatives of foreign governments and members of opposition groups talk with one another; teaching opposition leaders how to use national and international legal processes, rather than weapons, to register their grievances; and training combatants how to comply with the Geneva Conventions while violence persists.  Prohibiting material support that furthers violence makes good sense, and the statute at issue in the case does indeed explicitly ban provision of weapons, lethal substances, money, and similar items.  However, the statute also contains vague prohibitions on “training,” “expert advice or assistance” and “services” that encompass forms of political expression designed to reduce violence, as well as activities that promote or enable violence.

My organization, the Peace Appeal Foundation, whose founders include five Nobel Peace Laureates, helps construct and facilitate peace processes upon invitation from parties to a conflict.  Why is the Obama administration, like the Clinton and Bush administrations before it, arguing that U.S. law should be interpreted to preclude the peace and human rights promoting work of our organization, the Carter Center, Human Rights Watch, and other NGOs represented in the case?  It argues that Congress intended to preclude on national security grounds all forms of support to groups designated as terrorist organizations.  The record of Congress’ deliberations is far from clear on this point, however, and the statute itself explicitly exempts some forms of support to designated terrorist organizations.

No doubt the real reason successive administrations have attempted to apply the law to activities designed to reduce violence and increase human rights compliance is a desire to determine who engages with groups they have chosen to designate as terrorist organizations, as well as the terms of engagement.  This rationale, if true, should inspire both sympathy and concern.

It should inspire our sympathy because NGOs have come to play an increasingly significant role in international affairs over the past several decades, making invaluable contributions, but sometimes also complicating the work of diplomats and other officials.  To be sure, it also is true that some groups use legitimate activities as fronts for weapons trafficking, money laundering, and providing training in combat techniques to designated terrorist groups.

Nonetheless, a law banning activities intended to reduce violence and promote human rights is cause for serious concern for a several reasons: 
  •  First and foremost, if we truly want disputes to be resolved nonviolently, we should create and enhance opportunities for this to happen.  A law that discourages effective political engagement by opposition groups is a law that contributes to violence and human rights abuses.
  •  These activities are themselves important forms of constitutionally protected political expression and association. 
  •  It is an open secret within the diplomatic community, and among international human rights and conflict resolution professionals, that governments generally want all-party talks to occur, even when they make tough pronouncements against negotiating with terrorists until violence is renounced.   Indeed, the earliest back-channel efforts to resolve the Israeli-Palestinian conflict were tacitly permitted to occur at a time when the laws of each nation made talking to a member of the other nation a capital offense.
  •  Under current law, the government can grant exemptions from the material support legislation, but the process can be long and outcomes arbitrary.   The United Nations and other governments often stand ready to fund work by U.S.-based groups and individuals that can be impeded by interminable administrative delays.  Indeed, the designation of groups as terrorist organizations is itself a highly politicized – and, some might say, arbitrary – process.  For example, the PLO and IRA have never been designated as terrorist organizations, despite their use of violence against noncombatants.
  •  Neither the U.S., nor any other single government, can possibly determine who helps designated terrorist organizations engage in dialogue and judicial processes, and how they do so.  There are simply too many actors who are not subject to U.S. jurisdiction.  Furthermore, in any major conflict, multiple actors and streams of activity contribute to any eventual resolution.  While some level of coordination among actors is desirable, it is impossible for any single actor to dictate the terms of the process, and efforts to do so are counterproductive.  Preventing groups and individuals resident in the U.S. from engaging in peacemaking and human rights work in conflicts where one of the parties has been designated a terrorist organization simply ensures that they cannot contribute to advances toward the cessation of violence and respect for the rule of law, without any counterbalancing positive effects.

As applied to peacemaking activities and human rights work, these concerns undercut the logic of any
law or policy that subjects political expression intended to reduce violence and promote the rule of law to prior, and potentially arbitrary, government restraint.

The administration’s security concerns are real and significant, yet they can be addressed in ways that impinge less on other national interests and the civil rights of advocates for peace and the rule of law. For example, Congress could amend the statute to require U.S.-based groups and individuals doing conflict resolution and human rights work to provide the government with notice of the fact that they are interacting with members of designated terrorist organizations.  Wherever our organization is active, we go out of our way, with the knowledge of the national stakeholders, to inform the U.S. and other foreign governments of our activities and create opportunities for them to participate in appropriate elements of the process.   Our experience in numerous conflict zones, including Nepal, where we helped end a decades-long civil war between the former monarch and a group designated by the U.S. government as a terrorist organization, confirms that conflicts are seldom resolved without the active involvement and support of the international community.

Another reason successive administrations have attempted to enforce the material support statute against peacemakers may be a belief that the best way to deal with resistance movements that have resorted to violence is to attempt to discredit and isolate them.  If true, this rationale is misguided.  These groups often have legitimate grievances that fall on deaf ears within governments that may be
oppressive or corrupt.  In many of the conflicts in which members of our organization have been active, including South Africa, Sri Lanka and Nepal, resistance groups advocated nonviolently for recognition and rights for years before the hawkish elements within them turned to violence.

As the Clinton administration’s experience in Northern Ireland demonstrates, peace does not break out spontaneously.  Parties must talk, and the legitimate grievances and political representatives of resistance groups must be recognized as such, even as violent conduct is legitimately condemned.
Obama campaigned on the premise that talk matters in international relations, and that talk can work.
Let’s not punish the peacemakers as they attempt to affirm that principle.

Jeff Seul is chairman of the Peace Appeal Foundation.
4 Comments
Hannes Siebert link
12/28/2015 07:16:34 am

Case Summary and Outcome

The Humanitarian Law Project sought to help Turkey’s Kurdistan Worker’s Party (PKK) and Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE) with peaceful conflict resolution. The Supreme Court upheld a federal law banning “material support” to “foreign terrorist organizations” and refused to apply the strict scrutiny standard required in content-based regulations. The Court deferred to the arguments based on national security and foreign relations, finding that assisting a terrorist organization could help “legitimate” the terrorist organization and free up its resources for terrorist activities.

Facts

This case involves the constitutionality of a statute that forbids knowingly providing support to a terrorist organization which includes “training, expert advice or assistance, personnel, and service.” The plaintiffs (which included two U.S. citizens and six domestic organizations) challenged the statute because they wanted to provide aid to the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam, which are both defined as terrorist organizations by the United States. The form of support the plaintiffs wished to provide included: “(1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes’; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey’; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief’; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka’.”

The plaintiffs in this case moved for a preliminary injunction which was granted by the District Court, holding that the statute was constitutional but may be unconstitutional as applied to the plaintiffs in this case. The Court of Appeals affirmed. The case then went back to the District Court who issued a permanent injunction “against applying to [the] plaintiffs the bans on ‘personnel’ and ‘training’ support.” The Court of Appeals again affirmed. Thereafter, Congress amended the statute to add “expert advice or assistance” as constituting support to terrorist organizations. The plaintiffs again brought suit ruling this unconstitutional as applied to them. The District Court held that this new provision was unconstitutionally vague. The parties cross appealed and Congress again amended the statute, this time significantly. The Court of Appeals rejected the first amendment claims and again remanded to the District Court, who granted partial summary judgment on the vagueness issue. The Court of Appeals affirmed, ruling that the statute was impermissibly vague. The government then appealed to the U.S. Supreme Court.

Decision Overview

The majority concluded that the statute involved in the case was constitutional as applied to these particular plaintiffs, but neglected to answer the more convoluted question of whether the statute would be constitutional in other cases. The plaintiffs advanced three arguments on the basis of constitutional law: (1) that the statute as applied to them was unconstitutionally vague, (2) that it violated their freedom of speech rights, and (3) that it violated their freedom of association rights. First, the Court ruled that the statute was not vague because, as applied to plaintiffs, the statutory terms were clear as to the plaintiffs’ proposed conduct. Second, the plaintiffs argued that the statute prohibits them from engaging in any political speech. However, on the contrary, the Court ruled that the statute does not prohibit speech at all as the plaintiffs may say whatever they want about the organization –they just cannot provide support to the organization. In coming to this conclusion the Court utilized intermediate scrutiny, “under which a content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.” The Court found that the government interest in national security to met this standard. Finally, plaintiffs argued that this statute violated their freedom of association by criminalizing the mere act of associating with these terrorist organizations. The Court blatantly rejected this contention, ruling that the statute does not prohibit the mere act of association, but rather providing aid or support. Therefore, the majority ruled that the statute, as applied to plaintiffs, was constitutional.

The dissent agreed with the majority opinion in that the statute was not vague on its face. However, the dissent argued that the participation in lawful activities such as teaching and advocacy is not overridden by the government’s interest in controlling te

Reply
Hannes Siebert link
12/28/2015 07:26:10 am

June 21, 2010
Court Upholds Broad Interpretation Of Anti-Terrorism Law That Inhibits Work Of Humanitarian Groups

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

NEW YORK – The United States Supreme Court today upheld the broad application of a federal law that hinders the ability of human rights and humanitarian aid organizations to do their work by making it a crime to provide "material support" to designated "foreign terrorist organizations" (FTOs). The ruling thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups, said the American Civil Liberties Union. The ACLU filed a friend-of-the-court brief in the case, Holder v. Humanitarian Law Project, on behalf of the Carter Center and several other organizations known for their work to promote peace, further human rights and alleviate human suffering around the world.

Under the law, individuals face up to 15 years in prison for providing "material support" to FTOs, even if their work is intended to promote peaceful, lawful objectives. "Material support" is defined to include any "service," "training," "expert advice or assistance" or "personnel."

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."

Organizations that signed onto the ACLU's brief are the Carter Center, Christian Peacemaker Teams, Grassroots International, Human Rights Watch, International Crisis Group, the Institute for Conflict Analysis and Resolution at George Mason University, the Kroc Institute for International Peace Studies at Notre Dame University, Operation USA and the Peace Appeal Foundation.

The ACLU's brief is available online at: www.aclu.org/national-security/amicus-brief-carter-center-and-other-humanitarian-groups-support-humanitarian-law-

Reply
Hannes Siebert link
12/28/2015 07:22:23 am

Court Affirms Ban on Aiding Groups Tied to Terror

WASHINGTON — In a case pitting free speech against national security, the Supreme Court on Monday upheld a federal law that makes it a crime to provide “material support” to foreign terrorist organizations, even if the help takes the form of training for peacefully resolving conflicts.

Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.

The decision was the court’s first ruling on the free speech and associations rights of Americans in the context of terrorism since the Sept. 11 attacks. The law has been an important tool for prosecutors: Since 2001, the government says, it has charged about 150 defendants for violating the material-support provision, obtaining about 75 convictions.

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RELATED COVERAGE

Before the Supreme Court, First Amendment and Aid to TerroristsFEB. 23, 2010
Ralph D. Fertig, a civil rights lawyer, is challenging a law that bans even benign assistance to groups said to engage in terrorism.Ralph Fertig’s Case Pits Free Speech Against Terror FightFEB. 10, 2010
The court’s majority said deference to the other branches was called for, given the threat posed by terrorism.

“At bottom,” Chief Justice Roberts wrote, “plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization.”

Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. joined the majority decision.

The material-support law bars not only contributions of cash, weapons and other tangible aid but also “training,” “personnel” “service” and “expert advice or assistance.”

Justice Stephen G. Breyer took the unusual step of summarizing his dissent from the bench. He said the majority had drawn a false analogy between the two kinds of assistance.

“Money given for a charitable purpose might free up other money used to buy arms,” Justice Breyer said from the bench. But the same cannot be said, he continued, “where teaching human rights law is involved.”

The decision was a victory for Solicitor General Elena Kagan, who argued the case in February and whose confirmation hearings for a seat on the court are scheduled to start next week. But Chief Justice Roberts said the government had advanced a position that was too extreme and did not take adequate account of the free-speech interests at stake.

“The government is wrong,” the chief justice wrote, “that the only thing actually at issue in this litigation is conduct” and not speech protected by the First Amendment. But he went on to say that the government’s interest in combating terrorism was enough to overcome that protection.

In his written dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer said the majority had been too credulous in accepting the government’s argument that national security concerns required restrictions on the challengers’ speech and had “failed to insist upon specific evidence, rather than general assertion.”

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The law was challenged by, among others, Ralph D. Fertig, a civil rights activist who has said he wanted to help the Kurdistan Workers’ Party in Turkey find peaceful ways to achieve its goals.

On Monday, Mr. Fertig said the decision, which effectively ended 12 years of litigation, was a grave disappointment. “This is a very dark day in the history of the human rights struggle to assist groups overseas that are being oppressed,” he said.

The other plaintiffs were a doctor and six domestic organizations. Some of them said they had sought to help the Liberation Tigers of Tamil Eelam, a group that seeks to create an independent Tamil state in Sri Lanka.

Both groups, along with Hamas, Hezbollah, the Khmer Rouge and some 30 others, were designated as terrorist organizations by the State Department. The United States says the Kurdish group, sometimes called the P.K.K., has engaged in widespread terrorist activities, including bombings and kidnappings. The Tamil group, the government said, was responsible for a 1996 bombing that killed 100 people and injured more than 1,400.

The plaintiffs said they had sought to aid only the two groups’ nonviolent activities. For instance, they said, they wanted to offer training in how to use international law to resolve disputes peacefully and “

Reply
Hannes Siebert link
12/28/2015 07:37:03 am

President Jimmy Carter, founder of the Carter Center, commented on the ruling: "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."

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