The U.S. Supreme Court hears arguments Tuesday in a case that pits an individual's right of free speech and association against a federal law aimed at combating terrorism. At issue is part of the Patriot Act that makes it a crime for an American citizen to engage in peaceful, lawful activity on behalf of any group designated as a terrorist organization.
Federal law makes it a crime to provide material support to any organization designated as a terrorist group by the secretary of state. But the definition of material support includes not just providing weapons, money or bomb-making skills; it includes providing any sort of expert advice, training or personnel — including advice on how to resolve disputes peaceably or training on how to make human rights claims before the United Nations.
The nonprofit Humanitarian Law Project has a long history of engaging in such activity, mediating international conflicts and promoting human rights. But it has stopped doing some of its work for fear of being prosecuted under the material support provision.
"My speech is particularly nonviolent," says Ralph Fertig, president of the organization. "I've gone to jail in the United States for my advocacy for peace."
The federal government, he maintains, cannot constitutionally make it a crime to help others advocate lawful, peaceful solutions to international conflicts. In particular, Fertig and his organization have helped the Kurdistan Workers Party, known as the PKK, make human rights claims before international bodies. They have trained Kurdish leaders in peacemaking negotiations and have brought them to Washington to lobby. But when the PKK was designated an international terrorist organization under the Patriot Act, that all stopped, and the Humanitarian Law Project went to court.
The government, arguing that the PKK had engaged in terrorist activities that have cost some 22,000 lives, said it was justified in making the organization a pariah. Thus, the government contended, even filing a legal brief on behalf of the PKK in an American court would be a crime. Here is an exchange in 2007 between Judge Sidney Thomas and Justice Department lawyer Douglas Letter:
"If they file, for example, an amicus brief here, that would be a criminal act?"
"Yes, because Congress wants these organizations to be radioactive."
The 9th Circuit Court of Appeals ruled that as applied in this case, the law is unconstitutional.
In the Supreme Court on Tuesday, lawyer David Cole, representing Fertig and the Humanitarian Law Project, will tell the justices that the government's "radioactive" argument flies in the face of the Constitution.
"The interest in stopping even pure speech, furthering no illegal ends, simply because you don't like an organization because you decided to make an organization 'radioactive,' is impermissible under our First Amendment," Cole said.
Juan Zarate, who served as President George W. Bush's deputy national security adviser for counterterrorism, counters that argument this way:
"I don't think anybody would say that we should allow somebody to go meet with Osama bin Laden or Mullah Omar to help provide them with some PR training to make their case more effectively."
But al-Qaida is different from the PKK, Cole responds. Congress designated al-Qaida as our enemy after Sept. 11, 2001.
"Because we are at war with al-Qaida, the government has a much broader range of conduct that it can prohibit in terms of aiding the enemy than it does with respect to a group like the Kurdistan Workers Party, with which we're not in any kind of a military conflict."
The Carter Center and other human rights organizations are supporting the Humanitarian Law Project. In a statement, former President Carter said the material support law actually hinders peaceful resolution of violent conflicts. "Our work to end violence sometimes requires interacting directly with groups that have engaged in it," he said, as a way to get them to give up violence. It was precisely such contact with the IRA in Ireland and the African National Congress in South Africa that led to peaceful resolution of those conflicts.
But Zarate, the Bush administration and the Obama administration say the U.S. government has every right to delegitimize terrorist organizations.
"If you're training them on how to make their case before a U.N. tribunal, what you're doing is giving them the skills, the ability to legitimate their cause to advocate their position, and from a U.S. government standpoint, that's dangerous," Zarate says.
Cole notes, however, that the State Department designates organizations as terrorist groups without review. Thus, for example, the PKK is designated a terrorist organization, but the Palestine Liberation Organization is not.
"The danger there is that it creates the possibility for the government to make it a crime to speak with any group that the government doesn't like that distorts public debate on issues of foreign policy, which should be just as free, unfettered as public debate on any other political issue," Cole says.
Zarate observes, however, that resources are fungible in terrorist organizations.
"Part of the issue here is that we are dealing with multiple terrorist organizations around the world that are complex organizations. In many respects, they are not just militant organizations, they have charitable wings, they have political arms, and so the application of the statute runs into complications because there may be cases in which it appears legitimate to deal with these organizations from a political or humanitarian standpoint."
Still, the way the U.S. government interprets this law is itself so complicated that the courts have said, so far, that an average person would have a hard time knowing for sure what is a crime. For example, the government says teaching geography is not giving expert advice, but teaching political geography is. Zarate and Cole agree that under the statute as interpreted by the government, a U.S. citizen like Fertig could write an op-ed piece on behalf of the Kurdish cause, but he could go to prison if he consulted the PKK leadership about what he would say. Zarate concedes that the distinction may be difficult to comprehend.
"It's hard to put your arms around it sometimes because it may appear to be a distinction without a difference. But I think in terms of the law, it's actually a very important distinction, one in which the U.S. government is saying, 'This group, these groups listed by the secretary of state, are off limits to U.S. citizens.' "
Cole sees it differently. An op-ed piece can't be illegal, he argues, even if it is written in conjunction with a foreign organization like the PKK.
"The only difference is that our clients want to do it with a group that our government, through an unreviewable determination, has put on a black list — that's guilt by association."
Now these questions are up to the Supreme Court.