In a highly-anticipated decision yesterday, the Supreme Court in a 6-3 vote affirmed the constitutionality of provisions in federal law criminalizing the provision of "material support" to foreign designated terrorist organizations (FTO), even in circumstances where that support is non-lethal and consists solely of speech–at least if that speech is coordinated with the designated FTO. This will have significant ramifications for US policy in the Middle East, where many of the groups designated as FTOs operate.
While the relevant statute defines "material support" to include a long list of items that are clearly connected to the violent activities of terrorists, it also includes more ambiguous terms such as "any…service,…training, expert advice or assistance." The principle plaintiffs in this case, The Humanitarian Law Project (HLP), wished to provide training to the Kurdistan Workers’ Party (PKK) in the use of "humanitarian and international law to peacefully resolve disputes"; "engage in political advocacy on behalf of the Kurds who live in Turkey"; and "teach PKK members how to petition various representative bodies such as the United Nations for relief." The PKK, however, has been designated a "foreign terrorist organization" pursuant to the federal statute that criminalizes the provision of "material support" to such groups. Accordingly, the HLP brought this suit to obtain a judgment that provision of support of the kind which they intended–non-lethal tools to further political advocacy and peace-building–could not be legitimately criminalized under the US constitution.
And although it seems like attempts to convince terrorist groups to use non-lethal methods to pursue their political agenda would be a no-brainer, the US Supreme Court concluded otherwise. How could this be? According to the Supreme Court, an FTO such as the PKK could misuse such training to feign an interest in peace while in the meantime it builds up its strength as it awaits a more opportune time to resume terrorism. In addition, it could use its newly-gained knowledge of international law to subvert the legal system by manipulating it to prevent successful campaigns against terrorism. Finally, when an FTO such as the PKK learns skills such as peaceful political advocacy and the norms of international law and international humanitarian and human rights law, there is the substantial risk that it will obtain greater legitimacy, thereby making it harder to defeat them.
Essentially, the Supreme Court based its holding not on First Amendment principles, but rather on the principle of judicial deference to the Executive and Congress in the context of foreign relations. The Supreme Court repeatedly emphasized that the Congress, when it passed the statute proscribing material support, found that designated FTOs "are so tainted by their criminal conduct that any contribution to such an organization facilitates that [criminal] conduct." Accordingly, Chief Justice Roberts wrote that "[a]t bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive Branch that providing material support to a designated foreign terrorist organization–even seemingly benign support–bolsters the terrorist activities of that organization." Because of the connection with national security, the Court thus concludes that it is permissible to criminalize otherwise legitimate political dissent, at least if that political dissent is somehow "coordinated" with the designated FTO.
But fear not, civil libertarians! The Supreme Court maintained that individuals are still free to advocate for the PKK or other designated FTOs, on condition that such advocacy is completely "independent" and not subject to the control of the relevant FTO or was not undertaken in concert with it. Of course, it’s hard to imagine effective advocacy if you are not permitted to talk to the very group on whose behalf you wish to advocate.
Indeed, one of the most important purposes of coordinating with despised groups such as designated FTOs is to express one’s disagreement with the Congressional finding that there is nothing redeemable in these organizations. Public coordination with a despised group in connection with its nonlethal activities provides a very public and powerful message that this group deserves our sympathies as well–something that cannot be as effectively communicated in an op-ed, for example. And it is when viewed from this perspective that the irony of the Supreme Court’s reasoning becomes so palpable. It is Congress’ finding that such groups lack any redeeming features that justifies the complete ban on supporting them; yet, it is the risk that others may disagree with that factual assessment that justifies criminalizing those who challenge that finding, because by challenging that finding, they may very well succeed in changing people’s minds about that organization.
The fact that the Supreme Court recognizes the risk of "legitimization" that could result from the activities proposed by the HLP, but then permits the criminalization of the very means that could bring about that result–peaceful advocacy–shows how far the material support provision is from basic first amendment principles that good ideas do not need the coercive power of the state to succeed. The Supreme Court’s unwillingness to challenge the authoritarian regulation of dissent to American foreign policy certainly bodes ill not only for those elements in the foreign policy community who dissent from US policy, but also for the possibility of developing a more rational and humane US foreign policy in the future.
Mohammad Fadel is Assistant Professor of Law on the University of Toronto Faculty of Law