On June 21st, 2010, the United States Supreme Court in the decision Holder v. Humanitarian Law Project upheld in a 6 to 3 decision federal statute 18 USC § 2339B(a)(1) that criminalizes “material assistance and resources” to groups considered to be terrorist organizations. “Material assistance and resources,” as understood by the federal statute, is defined in 18 USC § 2339A as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (emphasis is mine)
Presented that way, there’s nothing that seems abnormal, in particular from an American point of view in the context of the “War on Terror.” I should also note for the sake of thoroughness that, by federal statute, it is up to the State Department to decide which group is or is not a terrorist organization, and that such a decision is open to judicial review.
The problem in the Holder decision is that the Supreme Court considers that teaching terrorist groups about international law and means to resolve conflicts in a non-violent manner can be considered as “material assistance,” as it amounts to “training” and “expert advice or assistance.”
The Humanitarian Law Project, supported by the American Civil Liberties Union (ACLU) and the Rutherford Institute, had pleaded that the federal statute was too vague and that it infringed on its First Amendment rights, to no avail. The majority opinion, written by Chief Justice John Roberts, considers in its conclusion (p. 35-36) that:
The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to “provide for the common defence.” As Madison explained, “[s]ecurity against foreign danger is . . . an avowed and essential object of the American Union.” The Federalist No. 41, p. 269 (J. Cooke ed. 1961). We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terror ist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.
For Jurist.org’s summary of the decision, see here.
This decision poses several problems to NGOs and individuals who enter in contact with groups that are considered to be terrorist organizations in attempts to resolve peacefully conflicts. A particularly interesting Op-Ed piece was published in the New York Times yesterday, written by two academics, Scott Atran and Robert Axelrod, which discusses past experiences, some of them their own, in talking and exchanging with terrorist groups in hope of advancing towards peace, and how that has known some failures, but also some successes. I found their conclusion to be particularly interesting:
It’s an uncomfortable truth, but direct interaction with terrorist groups is sometimes indispensable. And even if it turns out that negotiation gets us nowhere with a particular group, talking and listening can help us to better understand why the group wants to fight us, so that we may better fight it. Congress should clarify its counterterrorism laws with an understanding that hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.
Talking to terrorist organizations is – as the Supreme Court majority opinion and dissenting opinion, as well as Scott Atran and Robert Axelrod’s account prove – open to debate, but in certain cases, it is necessary. Terrorism, whether domestic or international, is for the majority of people not an end in itself. Terrorism thrives on poverty, frustration, hopelessness and despair. Refusing to talk at least to the most moderate members of such groups in the hope of bringing them into peace discussions, and criminalizing the teaching of international law and peaceful dispute resolution to such members, seems completely absurd, not to mention counter-productive.