The Middle East Channel

The Supreme Court and material support for terrorist organizations

While the ordinary U.S. Supreme Court case doesn't grab the attention of foreign policy specialists, Holder v. The Humanitarian Law Project, argued Feb. 23, 2010, is one of those rare exceptions. Depending on how the Supreme Court rules, it could be making a decision with major ramifications (even personal ones) for foreign policy specialists. At issue is the constitutionality of the United States government's interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of "material support" to foreign terrorist organizations. This provision is the government's most used law in prosecuting those suspected of terrorism, largely because of the law's breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing "training," "personnel," "expert advice or assistance," or "service" to such a group, even when such services are completely unrelated to terrorist violence.

In this case the petitioners, the Humanitarian Law Project, a nonprofit legal organization that specializes in working in conflict areas with the goal of promoting human rights, wanted to train members of the Kurdistan Worker's Party - a group that had been designated as a terrorist organization under the law and involved in an armed insurgency inside Turkey - to instead use the tools of human rights law to achieve their goals. Surprisingly, the U.S. government, at least in its position before the courts, has taken the view that such an activity would violate the statute. As one government attorney put it, the goal of the statute is to make designated terrorist groups "radioactive." Assisting them to advocate their views in political forums such as the U.N., or to file a brief with a court, or to publish an article in a newspaper or make a presentation to a television station would effectively render such groups less "radioactive," and thus run afoul of the law's purpose.

The government claims that the statute does not violate the First Amendment because it does not prohibit speech as such, but only coordination of speech between an individual and a terrorist. Accordingly, while it would be legal to write an op-ed calling on Hamas, for example, to renounce suicide bombing, it would be illegal to meet with Hamas and assist them in drafting a new use of force policy that renounces suicide bombing, at least until such time as the State Department removes Hamas's designation as a foreign terrorist organization. One reason for this according to Elena Kagan, the US Solicitor General who argued the case, is that learning advocacy and other communication skills is itself very valuable, something a terrorist organization then could use later for other, nefarious purposes.

Presumably, however, it is the goal of U.S. policy to induce terrorist organizations to abandon terrorism as a method to advance their political grievances. Direct communication with such groups would seem to be a reasonable, even necessary, means to achieve that result. One of the ways to convince terrorist organizations to abandon terrorism is to convince them that they can achieve their legitimate political goals without resorting to terrorism. Yet, the government's refusal to limit the reach of the "material support" statute to lethal support threatens to criminalize the ordinary work of many civil society groups that work to convince terrorist groups of precisely that. It also threatens to freeze in place certain policies by preventing those who are best positioned to change views - foreign policy specialists who are free from restrictions of government service - from acting as practical intermediaries between the U.S. government and terrorist organizations during any kind of interim period when a terrorist organization might evolve into a legitimate political interlocutor. As former U.S. President Jimmy Carter put it, "Our work to end violence sometimes requires interacting directly with groups that have engaged in it."

The good news is that the Supreme Court exhibited some scepticism regarding the government's theory of the scope of the statute, leaving some reasonable hope that it will find that the government's interpretation of the "material support" provisions violates free speech. The final decision, however, will not be released for some weeks, perhaps even months. Stay tuned.

Mohammad Fadel is the Canada Research Chair for the Law and Economics of Islamic Law and Assistant Professor at the University of Toronto Faculty of Law.


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Marc Lynch

Going after Jordan's Al Capone?

It's hard to avoid the subject of corruption when you talk to people in Jordan. During my last few visits there, no matter how much I tried to talk about the Muslim Brotherhood or the Parliament or constitutional reform, talk would always eventually come around to dark whispers about the rising tide of corruption at the highest levels. When King Abdullah disbanded Parliament, his new Prime Minister Samir Rifa'i had made battling corruption a top priority, though there was skepticism given that he had himself been reportedly forced out as Minister of Court for abusing his position. So most everyone was stunned last week by the arrest of four high-level officials at the heart of the regime over allegations of corruption in the contracting of Jordan's petroleum refinery. What's going on?

Corruption is hardly novel in Jordan, but this kind of major case is pretty rare. When Jordanians get caught up in corruption investigations, it's usually because they fell out with the Palace or else because they got caught up in the Kingdom's always-tense Jordanian-Palestinian divide. The current  round is different. At least 24 people are reportedly targets of the investigation, in addition to the prominent figures arrested: former Finance Minister Adel al-Qadah, wealthy businessman Khaled Shaheen, the Prime Minister's economic adviser Mohammed al-Rawashdeh, and former Petroleum official Ahmed al-Rifa'i. These are well-connected people, many from Transjordanian rather than Palestinian origins.   

The government has banned the publication of any details about the corruption cases in the local media without its prior approval -- an unfortunate decision which is depressingly consistent with its increasingly harsh line on media and public freedoms. But the way information travels in Jordan, it hardly needs to be in the media for the message to get out -- and Jordanians are buzzing about it (one blogger called it "the Jordanian equivalent of putting Al Capone on trial"). Why the ban on media coverage when the government appears to be doing something genuinely popular and fulfilling a major promise of its platform in the face of extreme skepticism?  

The answer to that depends on the real reasons for the arrests.  One theory is that the Palace finally realized that the growing public whispers about corruption were becoming too damaging to regime legitimacy, and that this was a move to restore public confidence. But then why ban coverage in the local media?  A second theory making the rounds is that in fact it was a signal not so much to the general public as to the elite, that certain lines should not be crossed -- for which the mass media would not be needed. Adherents of this view ask why there was a major corruption investigation in this case and not in a wide range of other well-known, or at least widely rumored, cases.   

A third  possibility is that it may also be a signal to the international community by the cash-strapped and aid-dependent Kingdom. Only weeks ago, Jordan had been embarrassed by its showing in the 2009 report by Global Integrity, which gave its anti-corruption efforts a rating of 55/100 (Very Weak):

A number of key agencies contributing to Jordan's national anti-corruption framework have been redesigned during the past few years with mixed results. For example, an ombudsman's office was established in 2008; however, it has only taken on low-level cases to date. Fearful of political interference after the head of the Audit Bureau was recently removed from office, the newly created anti-corruption commission has been slow to act or issue reports. Meanwhile, the Jordanian Foundation for Investment, the agency responsible for oversight of state-owned enterprises, was abolished in favor of ministerial-level monitoring with less transparent oversight practices.

King Abdullah cares about Jordan's international image, and may have felt the need to reassure international investors and the international community that anti-corruption efforts will be taken more seriously.  And again, having it in the local media would accomplish little for this goal. 

Whatever the case -- and there's plenty we don't know yet -- it's somewhat heartening to see a rare serious anti-corruption move in Jordan. But I would be more heartened if the move was not accompanied by a state security ban on local media coverage, if it extended to a wider range of cases and not just one seemingly isolated incident, if it were accompanied by a rapid move towards passing the progressive legislation which Parliament was supposedly dissolved in order to push through, and if there were clear signs of a rapid move towards elections for a new Parliament under a reformed electoral law.  

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