May 28, 2015

How the war on ISIS is also a war on the First Amendment

Neeraja Viswanathan, Alternet - It’s estimated that about 150 Americans have gone to fight in Syria, but only 12 Americans have actually been confirmed as joining ISIS there. Numerous Americans have been charged with providing “material support” to a terrorist organization, usually ISIS or Al-Qaeda, under 18 U.S.C. § 2339B, which makes it a crime (punishable by up to 10 years in prison) to provide “material support” to any foreign organization the Secretary of State has designated as terrorist. What constitutes material support is loosely categorized as “training,” “expert advice,” “service” or “personnel.” Clearly, Americans who travel to Syria to join ISIS fall pretty much into that category.

Ascertaining what constitutes “material support” from here in America, however, is far less clear. Thanks to a 2010 Supreme Court ruling, “material support” can include activities such as distributing literature, participating in peaceful political advocacy, human rights training, donating funds for nonviolent assistance, and providing medical care or peacekeeping activities. It could even include filing an amicus brief on behalf of the designated organization.

In fact, in Holder v. Humanitarian Legal Project, the Supreme Court made it clear that “material support” could mean virtually any assistance or aid. The Humanitarian Legal Project had previously reached out to organizations in Kurdistan and Sri Lanka to teach peaceful conflict resolution—until one of the organizations was designated a terrorist organization. The HLP filed suit to support its continuing work, but the government disagreed, arguing that the assistance, even if humanitarian or peaceful, constituted “material support” under 2339B and was therefore prohibited. The Supreme Court agreed with the government.

David Cole, now a professor at Georgetown School of Law, represented HLP in the Supreme Court. “This was a straightforward First Amendment challenge. The Supreme Court said, yes, this penalizes speech, yes, all you’re trying to do is speak in favor of human rights and peace, but in this area of foreign relations, we have to be deferential to the government.” Never mind that the “dangers” were largely speculations on the part of the Justices, providing hypothetical scenarios where humanitarian assistance or peacekeeping advice might eventually “legitimize” the terrorist organization. The fear was real, and basic freedoms, sacrificed.

The ruling also flies in the face of basic criminal law standards. “Even if you advocate criminal activity, you usually can’t be prosecuted for that unless you can show that it is both intended and likely that there would be imminent lawless activity, “ says Cole. “But in Holder, the court held that when it comes to terrorist activity, you don’t have to show the same level of intent.” Even more aggressively, the court stated that there was no need to prove any intent to promote terrorist activity for the action to be considered “material support,” and the support did not actually have to reach the organization for a crime to occur.

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