Is the US flexing its metaphorical muscle in the realm of international affairs and the ‘Global War on Terror’ once again?  In a move that could be viewed as the reassertion of the state’s authority over an increasingly globalized arena and international commons that has more recently allowed in the last decades for the emergence of a more active and contributing civil society to take the reins (or fill the vacuum), the Supreme Court’s ruling in Holder vs. Humanitarian Law Project has seemingly put the choke hold on civil society’s foreign aid activities.  The Supreme Court ruled 6-3 on June 21, 2010, that “a law prohibiting “material support” of foreign terrorist organizations can be used against people who claim to be providing only peaceful, humanitarian assistance,” (Bob Egelko, San Fransisco Chronicle, June 22, 2010).  Chief Justice John Roberts representing the majority opinion, including Justices Stevens, Scalia, Kennedy, Thomas, and Alito, stated that any tangible support, “helps lend legitimacy to foreign terrorist groups…which facilitate more terrorist attacks,” (Egelko, The Chronicle).  On the other hand, you have the dissenting opinion as presented by Justice Stephen Breyer, joined by Justices Ginsbury and Sotomayor, which counters that this ruling would, “deny First Amendment protection to the peaceful teaching of international human rights law,” and would when applied broadly (beyond the intentional aiders of terrorism who he claimed should be prosecuted), can and would violate free speech, (Egelko, The Chronicle).

According to David Cole, a lawyer for the organizations and individuals who challenged the law, the Court’s decision allowed for, “human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists,” (Egelko, The Chronicle).

Background:

The Supreme Court’s June ruling was an extension of already existing bans on “material support” for foreign terrorists that began under Clinton in 1996 and was expanded by Bush in 2001 with the USA Patriot Act.  The parties in this specific case were HOLDER, ATTORNEY GENERAL, ET AL. v. HUMANITARIAN LAW PROJECT ET AL., with the plaintiffs case reading as follows:

As the litigation now stands, plaintiffs challenge §2339B’s prohibition on providing four types of material support—“training,” “expert advice or assistance,” “service,” and “personnel”—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.

Two sides to every story:

On one side we have those who rebuke the Court’s ruling and fear its negative repercussions, such as former US President Jimmy Carter, whose own organization that has had to interact with US designated terrorist group Hamas in its Mideast diplomatic efforts, could come into question.  Carter has commented that the ruling, “threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence,” (Egelko, The Chronicle).

On the other side we have those who take the more pragmatic perspective and see the Court’s ruling as positive in the way of shutting off channels of support, whether explicit or implicit and intentional or not, to terrorists.  Putting a burden of proof on NGOs and civil society actors to prove or ensure where and how their aid is being utilized in an attempt to proactively negate negative consequences of any kind of aid to these groups.  Annemarie McAvoy, a Fordham law professor and former federal prosecuter, articulated this point of view when she stated that, “by helping the terrorists, even tangentially, they’re freeing up the terrorists to focus on other things, such as violent attacks,” (Egelko, The Chronicle)  This sentiment was mirrored in the stance and comments of Solicitor General Elena Kagan (Obama’s current nominee to the court) that, “what congress decided is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs,” (Egelko, The Chronicle).

Discussion:

Is the world so black and white?  Does civil society participation and assistance towards advocacy and training in the use of international law to resolve disputes peacefully and non-violently, the peaceful teaching of international human rights law, and advising on petitioning to the United Nations and other representative bodies for relief, really amount to “material support” of terrorists?

When our class, Peacemaking and Peacebuilding, discussed this issue one of the comments made by a student during the discussion was that, when has ignoring a group or non-engagement with a group, terrorist or not, solved anything, besides cutting off dialogue?

Some of my own questions and those raised by other students in dialogue with our professor regarded:

The creation and expansion of “the other”—are we in the US making all other, the other?

Ghosts of McCarthyism—is the US defining a narrow black and white in global politics and affairs, in humanitarian assistance, and in peacemaking and peacebuilding?

Who can and does define “terrorism” and “terrorists”—is systemic and structurally entrenched monoculturalism at play in the Global War on Terror and its subsequent policies?

When all else fails—is this further security measure necessary to put the burden on organizations and individuals to prove the authenticity, legality, and constructiveness of their work, in order to take the world one step closer to safety from terrorists?

The question lurking in my mind regarding the Court’s ruling is, will these restrictions on “material support” via organizations and private individuals be applied equitably?  Or, will only the grassroots organizations and projects attempting to give legitimate aid suffer, while those with a recognizable name and friend on Capitol Hill find the convenient loopholes to slip through?

Furthermore, when this discussion came up in our class, October 26th, our professor couldn’t help asking us why when he first introduced this Supreme Court case and ruling to us the week prior, none of us had even heard of it?  Why had we, as global affairs students studying and keeping on the verge of international news, failed to notice this issue that occurred over the summer, which is significant to activities and participation in our field?  It is apparent that the Supreme Court’s ruling in Holder vs. Humanitarian Law Project has struck a chord of fear with NGOs and civil society who engage in peacemaking, peacebuilding, and conflict resolution, management and transformation, but what could the broader implications of such restrictions be?

Will Big Brother bully out those truly interested in helping make the world a more peaceful place, or will civil society rally and enlighten the powers that be regarding the futility of estranging constructive peace efforts?

For further information regarding this Supreme Court case and the debate it has sparked please take a look at:

“The Supreme Court goes too far in the name of fighting terrorism.”  The Washington Post © 1996-2010.  22 June 2010.  http://www.washingtonpost.com/wp-dyn/content/article/2010/06/21/AR2010062104267.html.

Price, Michael.  “National Security Watch: Mens Rea and Material Support of Terrorism.”  The Champion Magazine; The National Association of Criminal Defense Lawyers (NACDL).  August 2010.  http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/ae3a72c354740766852577c100550278?OpenDocument.

The Humanitarian Law Project,  http://hlp.home.igc.org/ .  (Related headlines and articles).

By Jessica Fowler

Photo attributed to: Owngchu1

Written by Jessica Fowler