“That this speech and association for political purposes is the kind of activity to which the First Amendment ordinarily offers its strongest protection is elementary,” Justice Stephen Breyer wrote in his dissent in Holder v Humanitarian Law Project (2010). The “speech and association” to which he referred were those of peacebuilding groups seeking to teach designated terrorist groups how to pursue their aims through non-violent political channels instead of through violent means. The Court’s majority, however, disagreed: in the Humanitarian Law Project case, six of the justices joined in an opinion that held that this type of activity could be criminally prosecuted under the “material support” laws. Last month marked the third anniversary of the Court’s decision upholding this broad interpretation of the material support laws, and it is time for the administration to act to roll back the barriers to peacebuilding work that the decision created.
Peacebuilding organizations are a critical part of the tradition of “Track II diplomacy.” In a 2011 Foreign Policy article, Charles Homans described Track II diplomacy as “the brainchild of a handful of academics, free-thinking State Department bureaucrats, and public intellectuals in the 1970s,” which he says “grew out of the observation that private individuals, meeting unofficially, can find their way to common ground that official negotiators can’t.” Because they are independent from government—and therefore from the many political factors that limit government officials—peacebuilders working all over the world are often uniquely positioned to engage with parties to end violent conflict. In recent years, however, peacebuilders have had to limit their work for fear of criminal prosecution. The source of their fears lies in the material support statute: in the eyes of the law, they might as well be giving guns to al Qaeda.
In 1996, President Clinton signed the Antiterrorism and Effective Death Penalty Act into law. Among the many sections and provisions of the bill was the material support prohibition, which made it illegal to provide material support to members of a group on the State Department’s list of foreign terrorist organizations—an act the statute made punishable by up to 10 years in prison. The 1996 law’s definition of material support included “training” and “personnel”; in the wake of September 11, the USA Patriot Act increased the maximum sentence for material support, and amended its definition, adding “expert advice or assistance.” In 2004, the Intelligence Reform and Terrorism Prevention Act further amended the definition of material support, explicitly including “intangible” property and “service.” After decades of successful peacemaking missions, Americans who engage in Track II diplomacy can now go to jail for facilitating peace talks, offering training in conflict resolution, or teaching a course on humanitarian law if any of the participants are members of designated groups.
The case considered by the Supreme Court involved several plaintiffs, including the Humanitarian Law Project (HLP). Like many of its peer organizations, HLP refrained from peacebuilding efforts out of fear that it would be charged with providing material support as defined by the statute. HLP is a non-profit organization that works to protect human rights and promote peaceful resolution of conflict; the Project told the Court that the statute prohibited them from engaging in activities such as teaching members of the PKK (a designated terrorist group) to petition the United Nations and other bodies for relief, and training PKK members in the uses of international law for peaceful conflict resolution.
Like all other peacebuilding groups affected by the material support laws, HLP found itself in an ironic position: the organization’s efforts to guide members of an armed group to pursue lawful and legitimate avenues to address their grievances would place the organization itself outside the law, and delegitimize its work. As the Court confirmed, HLP’s fears were well-grounded. The Court rejected the plaintiffs’ claim that the definition of material support was in violation of their First and Fifth Amendment rights. Despite the fact that some of the activities they hoped to engage in were pure speech acts, promoting wholly lawful and peaceful activities, the Court denied them the fundamental protections of the First Amendment.
The concerns here are not merely theoretical. The material support laws have had a dramatic chilling effect on peacebuilding activities, resulting in countless lost opportunities for progress toward peace and security. The Charity & Security Network, which works extensively on these issues, details a number of examples of the negative impacts of the material support laws on their website.
The Constitution Project has worked to reform the law and to raise awareness of the dangerous implications and threats to constitutional rights posed by this expansive definition of material support. “In their current form,” TCP’s 2009 report warned, “these laws raise serious concerns under the First and Fifth Amendments, because they define ‘material support’ so expansively and vaguely as to criminalize pure speech furthering only lawful, nonviolent ends.” Although the Supreme Court rejected this constitutional challenge in the Humanitarian Law Project decision, the Court simply said that the broad interpretation of the law was constitutionally permissible; it did not say it was constitutionally necessary. Instead, it deferred to Congress and the executive branch to make further judgments about the scope of the statute.
In the three years since the Humanitarian Law Project decision, advocates (including TCP) have zeroed in on a promising possibility for reform. The material support statute itself gives the Secretary of State the authority to suspend the material support prohibition to allow certain engagement with designated terrorist groups, so long as it does not further any terrorist activity. Just last month, prominent former government officials, including President Jimmy Carter, as well as Ambassadors Nancy Soderberg and Thomas Pickering, both members of The Constitution Project’s Liberty and Security Committee sent a petition asking Secretary of State John Kerry to use this authority and exempt peacebuilding activities from criminalization under the prohibition. The petition also had broad-based coalition support from peacebuilders, academics, foreign policy experts, religious leaders, and civil liberties groups, including TCP. In 2011, TCP supported a similar request to then Secretary of State Hilary Clinton.
In the upcoming months, TCP and its allies will continue to push the State Department to recognize that the goals of peacebuilding groups are far from opposed to the government’s—in fact, they are quite the same.
The views expressed in this blog post are not necessarily those of TCP, its committees, or boards.