In the fight against terrorism, not everything is about violence. That is the general idea behind material support provisions included in anti-terrorist legislation, first introduced in 1996 and strengthened in the US PATRIOT Act. Such provisions prohibit providing any support to groups designated as terrorist organizations by the Secretary of State, regardless of whether the support is designed to further violence or humanitarian goals. “Material support” itself is a broad concept, treated almost as a catch-all for support ranging from tangible support in the form of goods and money to services such as training and expert advice. True, this can be beneficial in cutting off terrorist groups from the means to further their violent agenda, but the broadness of the concept has long troubled many. Yesterday, the US Supreme Court heard arguments why.
The case in front of the court, Holder v. Humanitarian Law Project, specifically concerned the issue of speech as material support. The central defendants in the case are The Humanitarian Law Project, a human rights organization dedicated to non-violence, and its president, Ralph Fertig, a professor with the University of Southern California that has advocated non-violent protest as a means of bring about change with the Kurdistan Workers Party (PKK) in Turkey. Unfortunately for Mr. Fertig, the PKK is a group designated as a terrorist organization by the State Department. Though Fertig has never been arrested for his work with the PKK, the broad definition of material support means that his advice in implementing non-violent resistance to the political oppression that many Turkish Kurds face could land him in jail for supporting terrorism.
Regardless of where you may fall on the political spectrum, it’s clear that there is something a bit odd about that situation. After all, while opinions may vary on the validity of their political opinions, the repugnant part of terrorist organizations is the violent methods they use. Therefore, why should attempts to get them to give up these methods for lawful non-violent ones get a person in the same amount of trouble as financially funding a suicide bomber? The issue is compounded in the US where the First Amendment provides some of the broadest protections of free speech available in the world.
The court appeared to be just as perplexed by the possible ramifications. Justice Kennedy noted that speech can make an organization stronger by legitimizing and encouraging it, but nonetheless prohibiting US citizens from pursuing otherwise lawful and peaceful activities on behalf of a designated group seemed excessive. Other members of the court appeared to agree, including Chief Justice Roberts and Justice Alito. But speech can be a powerful tool, and it can be used to do harm. Carving out a free speech exception to current material support provisions may strengthen terrorist groups and weaken our ability to prosecute such supporters for their actions. Since September 11, there have been numerous convictions in US courts for providing material support, although a quick review of the cases revealed that it was often for crimes such as money laundering and financial fraud rather than for legal or peaceful advocacy. Nonetheless, the US Government’s stance remains that supporting terrorist organizations is an all or nothing proposition, with no acceptable gray area in between.
It is unclear at this point how the court will rule in this case, but it raises a significant issue as to where we expect change to happen when it comes to terrorist organizations. One point that I have not seen raised is that with no internationally agree upon definition of terrorism, the designation of who is and isn’t a terrorist is largely a political decision. It is easy to see organizations such as Al Qaeda or the Taliban as serving no positive social purpose, but there are other organizations such as the PKK whose general methods may be objectionable but underlying political message may be valid. Things are complicated even more when an organization is represented as both a legitimate political party and as a militant group, which is the case with both Hezbollah in Lebanon and Hamas in the Palestinian Territories.
This was also the situation with the ANC in South Africa prior to the end of apartheid. Designated as a terrorist group for their attacks on military and occasionally civilian targets, they nonetheless had a significant political agenda to end the systematic discrimination against non-Whites that apartheid enshrined. However in that case, being able to work with the ANC allowed South Africa to end apartheid peacefully and through political rather than militant means. Since 1994, the ANC has been the party in power of a peaceful, pluralist, democratic South Africa. It is a fairytale ending that should never be expected with all militant groups, but is also an ending that the current provisions against material support make increasingly difficult to pursue.
If it is the methods of terrorism that we are so against, than efforts to get terrorist organizations to disarm and pursue their agendas politically should be encouraged. If the pen is to be mightier than the sword, then we must preserve a place for people to talk. Failing to do so only isolates terrorist organizations and encourages the violent acts we abhor, and in that situation, no one stands to win. But with the ability to communicate, consult, and advocate for other means, it is possible that who we now deem as terrorist organizations can find peaceful ways to achieve what they currently seek with violence. Speech is a powerful tool, and while that can be bad it can also be very good. At the very least, that recognition should be preserved and protected under any law that purports to aid in the fight against terrorism.
