Material Support Court Ruling: More background and Free Speech Issue

By Michael B. Kraft

The Supreme Court’s 6-3 decision today upholding the 1996 law that makes it illegal for American citizens and residents to knowingly provide material support to designated Foreign Terrorist Organizations helps maintain a major tool to curb terrorist fund raising.

Here is some additional background on the case and the free speech issues raised in the court case. This piece supplements and emphasizes different aspects of the ruling than the excellent and more comprehensive blog item just filed by the Investigative Project on Terrorism, written by Stephen Landman.

The material support statute, signed into law in April 1996 by President Clinton and also used by the Bush and Obama administrations, is one of the U.S. Government most important tools against terrorism fundraising. Justice Department officials say it has been used more than 150 times since Sept. 11, resulting in 75 convictions. Additionally, there also have been plea bargaining and confessions by persons charged with violating the provision that makes it illegal for persons to knowingly provide funds, services, training, weapons or other forms of material support to groups designated by the Secretary of State as a Foreign Terrorist Organization (FTO.)

I won’t repeat the full legal text of the material definition contained in the 4th paragraph of Landman’s article, but note that most of those cases, especially relating to Al Qaeda and Hamas, involved money and other tangible support for terrorist groups.

The law has been challenged over the years in lower courts by groups that said they wanted to provide non-violent training to a Kurdish group, the PKK and a Sri Lanka group, the Liberation Tigers of Tamil Eelam Tamil Tigers (LTTE), on how to lobby the United Nations, Congress and conduct peaceful negotiations.

The Associated Press and other media quoted David Cole, a Georgetown law professor who represented the plaintiffs in the Supreme Court, as saying that the Supreme Court essentially ruled that "the First Amendment permits the government to make human rights advocacy and peacemaking a crime."

This is typical of the exaggerated assertions he has made during his long history of opposing the material support provisions 18 U.S.C.Section 2339B of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104-132, 110 Stat. 121). In a lower court case he claimed that the law imposed guilt by association.

Former President Jimmy Carter, who has met with officials of Hamas –a designated terrorist organization-- was quoted as saying “The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”

These claims are nonsense. The law does not prevent persons from making speeches or writing articles or taking out newspaper ads to express support for groups in question. Indeed, supporters of the Iranian opposition group MEK, which was designated in 1996 because of its attacks on Iranian court houses and other civilian targets, have done exactly that. There is a difference, however, between people doing this on their own or in conjunction with or consultation with a designated Foreign Terrorist Organization.

The text of today’s Supreme Court ruling said “Independently advocating for a cause is different from the prohibited act of providing a service ‘to a foreign terrorist organization (section 23339B (a)(1).” The majority opinion then went on to say that “Thus, any independent advocacy in which plaintiffs wish to engage is not prohibited by Section 2339B.” (Page 3)

A few paragraphs later, the opinion specifically stated that “As applied to the plaintiffs, the Material-support statute does not violate the freedom of speech guaranteed by the first amendment….Plaintiffs claim that Congress had banned their pure political speech. That claim is unfounded…. Section 2339B does not prohibit independent advocacy or membership in the PKK and LTTE … the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”

I cite these excerpts because so much of the press reporting so far just quotes Professor Cole’s assertions without noting what the ruling actually says.

By way of additional background: when the legislation was introduced in early 1995 and worked its way through Congress following a series of terrorist attacks overseas and the Oklahoma City bombing, provisions were incorporated to allow groups to challenge their designations in the U.S. Court of Appeals for the District of Colombia. Indeed, the designations can be made by the Secretary only on the basis of a detailed administrative record that also has to be approved by the Justice and Treasury Departments.

The intent of the legislation was to try to deter terrorism by taking the offensive to curb their funding and other forms of material support. During the drafting process, nobody in the Justice, State or Congress imagined that anyone would conceive of trying to train terrorist groups how to lobby the United Nations or how to negotiate. If a terrorist group wanted to enter negotiations with the government it was attacking, it did not need outsiders to tell them how to stop conducting terrorist actions. I was the State Department Counterterrorism Office legislative official involved in drafting and negotiating the legislation with the Justice Department and Congress and took part in most of the discussions.

In effect, Congress said that money and material support is fungible. Congress inserted Section 301 (7) which states that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct.”

Chief Justice John Roberts said in his majority opinion for the Supreme Court that material support intended even for benign purposes can help a terrorist group in other ways. "Such support frees up other resources within the organization that may be put to violent ends," he said.

The 1996 law is similar in concept to earlier legislation, dating back to the 1979, cutting off U.S. foreign assistance for terrorist-supporting states, such as Iran and Syria, even though they build schools and roads and perform other “humanitarian” functions. In short, if a country or group supports or is involved in terrorism, The U.S. has a series of laws authorizing various economic sanctions, including a ban on financial transactions.

There is an irony in the timing of today’s decision. The PKK has been conducting terrorist attacks in Turkey for years and the court’s decision should be welcome in Turkey. In addition, over the years the U.S. has provided the Turkish government with millions of dollars worth of antiterrorism training to help it cope with the PKK. Yet, in recent statements made following the clash aboard a Turkish ship trying to break the Israeli blockade of Hamas forces in Gaza, Turkish Prime Minister Erdogan says he does not consider Hamas a terrorist group. Yet, Hamas in many ways is more extreme than the PKK, having fired thousands of rockets and missiles toward Israeli civilians and conducting other terrorist attacks against Israelis and also against fellow Palestinians.