The Middle East Channel

The Supreme Court's troubling decision on 'material support'

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

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The Middle East Channel

Gaza’s humanitarian crisis is not a surprise--it’s what we wanted

This weekend Israel, under growing pressure from Washington, announced a change in the siege strategy toward the Palestinian population of the Gaza Strip. Up until now, Israel's strategy has been to deny entry of almost all goods, except the most basic supplies it alone deems necessary to prevent a humanitarian catastrophe. The list of goods that Israel has allowed into Gaza has changed, sometimes daily, as the Israeli government has sought to maintain its absolute, arbitary control. Gazans, faced with the engineered shortages of everything from diapers to coriander, have imported all manner of goods through an underground tunnel system linking Gaza with Egypt. As a result of the attempt of the "freedom flotilla" to break the siege and the resulting international outrage led by Turkey against Israeli actions on May 31, the Israeli government has promised to modify its draconian policies. Yet the debate over what kind of siege to place on the Gaza Strip and its 1.5 million trapped Palestinian inhabitants avoids the critical point.

Instead of playing the game according to rules set by Israel, the international community must focus on creating an entirely new border regime on Gaza's land borders and sea and air corridors; a regime that removes Israel from its commanding role as gatekeeper, encourages Egypt to establish economic links with its Palestinian neighbor, that establishes land and sea corridors that operate according to internationally accepted standards, and that restores to Palestinians a system to import and export goods and services according to their abilities and preferences--not those of their enemies.

The failure of the international community to confront Israel's decision to isolate Gaza from Israel and the West Bank is at the root of the web of crises centered on Gaza today. However understandable the international focus on Gaza's humanitarian emergency, what is at issue is the fact that Gaza's current nightmare is the consequence of Israel's continuing effort to separate the political, economic, and security destiny of the West Bank from that of the Gaza Strip--an objective that the international community has tacitly supported because of opposition to Hamas' rule in Gaza (for more on this, see Tony Karon's piece in Time magazine and Marc Lynch's Middle East Channel post).

Framing Gaza's problem as a humanitarian issue represents a victory for the view of those intent upon tinkering at the margins of the ongoing crisis. Continuing to view the unconscionable humanitarian consequences of the embargo on Gaza that has increased incrementally over most of the last decade as simply the result of security or logistical shortcomings (a view that continues to be the case today), condemns the people of Gaza, more than half of whom are under the age of 18, to unending misery at the hands of a policy that has destroyed the economic fabric of Palestinian society.

Despite the recent show of concern for the Palestinians of Gaza, the international community (led by the United States), has been an active accomplice in the current crisis, focused on softening the hard edges of Israel's draconian policies in a manner that leaves the essence of the policy intact and which acquiesces in, rather than challenges, Gaza's engineered descent into penury. International inaction is almost solely the result of opposition to Hamas--arising from a fear that any amelioration of the Gaza status quo favors Hamas to the disadvantage of the "Ramallah model" represented by Palestinian Authority President Mahmoud Abbas and Prime Minister Salaam Fayyad.

"This is a moment of clarity for all Palestinians, and now comes a moment of choice," President Bush noted in July 2007, shortly after Fateh's expulsion from Gaza. "The alternatives before the Palestinian people are stark. There is the vision of Hamas, which the world saw in Gaza--with murderers in black masks, and summary executions, and men thrown to their death from rooftops. By following this path, the Palestinian people would guarantee chaos, and suffering, and the endless perpetuation of grievance. They would surrender their future to Hamas's foreign sponsors in Syria and Iran. And they would crush the possibility of a Palestinian state." The widespread adoption of Bush's narrative guaranteed the "chaos, suffering, and endless perpetuation of grievance" that he promised.

That said, the economic strangulation of Gaza actually preceded Hamas' election victory in January 2006 and Fateh's bloody expulsion from Gaza in June 2007. It is rooted in Israel's 2004 decision to "disengage" from Gaza. This policy resulted in an end to Israel's permanent security and settlement deployment in Gaza, but also to a marked a change in its economic, trade, and labor relationship with the territory. An Israeli policy of economic estrangement along the Israel-Gaza frontier aimed at minimizing the transit of Palestinians, Palestinian labor, and economic trade across the Gaza Strip-Israel border and forcing Egypt to re-assume the economic and security role it played in Gaza before Israel's June 1967 occupation. This latter policy represented a reversal of Israeli policies pursued from the inception of occupation in June 1967, and it enjoys broad popular support in Israel.

Draconian restrictions on the entry of Palestinian labor to Israel, the failure to establish a reliable export/import regime through Karni and other crossings, and the stillborn safe passage route linking Gaza with the West Bank--all signature elements of policy before June 2007 and indeed before Hamas' parliamentary victory in January 2006--are the product of this strategic re-evaluation of Israeli interests. As such, the policies that have so stirred the international community in recent weeks are not incidental byproducts that can be solved by technical fixes of the kind now being proposed, but rather are integral to Israel's strategy. Even before June 2007, this system resulted in the creation of a "soft quarantine" that created substantial economic dislocation in Gaza and led to widespread flight of Gaza's manufacturing base.

Hamas's rout of Fateh in June 2007 only confirmed Israel's policy of keeping Gaza on what Israeli official Dov Weissglass once cynically referred to as a "diet" (first announced in the wake of the Hamas January 2006 victory), and created an opportunity to gain international support for implementing it more broadly--by suspending indefinitely Gaza's normal trade with Israel and lowering the bar to permit limited "humanitarian" imports, narrowly understood. It's not as if the international community didn't notice. Within weeks of the intensified Israeli embargo, the World Bank offered a critical view of the new status quo:

[T]he entry of humanitarian goods is a necessary but insufficient condition for the survival of the Gazan economy, which is already in dire straits after almost two years of restrictions. A sustainable solution must allow for imports and exports at the very least at levels similar to those pre-crisis which were already deemed insufficient and not meeting the minimum targets set in the AMA...the current restrictions on the entry of goods and services in and out of Gaza is not unique to July 2007. It has been underway since disengagement, and the Bank and others have quantified the impacts. As such, the pillars of Gaza's economy have weakened over the years. Now, with a sustained closure on this current scale, they would be at risk of virtually irreversible collapse.

Limited and basic border operations enabling the transfer of goods from Israel to Hamas-controlled Gaza were functioning within days of the Hamas takeover. Three years on, these operations remain elementary, informal, unwritten, impermanent, and non- transparent. The official transit of goods exempted from the general ban--whether imports from abroad or from Israel/West Bank--is impossible, unless individual exceptions are granted by Israel.

Permitted goods enter Gaza in an environment that meets the minimum security and operational standards acceptable to the parties involved. This fact needs to be highlighted. Security issues related to the operation of Israel's border with Gaza have been solved by Israel and Hamas. This limited and elementary system--in its security and operational dimensions, is working according to the standards set for it (primarily Israel) and it is evidence of the modus vivendi established between the interested parties, principally Israel and Hamas' security forces in control in Gaza.

This "system" has met the security and operational conditions established by Israel for the successful provision of basic humanitarian goods. To the extent that Israel is a party to practical cooperation with Hamas to ensure minimal border functionality, Israeli officials are adamant that this is a function of operational cooperation only and does not reflect any political reconsideration about the need to destroy Hamas. Hamas is prepared to cooperate in this effort--to demonstrate to Israel (and others) that it is the responsible security address in Gaza and to provide for its people. Ironically, the government in Gaza is the most ardent champion today of a liberal trade regime with Israel (and Egypt) and the party most interested to restore a variation of the status quo ante at both Karni and Rafah.

Israel has chosen to lower the bar that defines its responsibilities for the welfare of Palestinians in the Gaza Strip under the Fourth Geneva Convention, responsibilities which Israel's own foreign ministry acknowledges that it retains despite disengagement. It treats Gaza as an "enemy state," imposing pressures on Gaza which, had they been visited on the people of New York or Paris, would long ago have resulted in endemic anarchy and mayhem. That Gaza continues to function today is a testament not to Israel's or the international community's humanitarian impulses, but to the remarkable social cohesion of Palestinian society and, let us acknowledge the fact--to Hamas's governing skills.

The United States needs to begin showing far greater creativity and boldness in breaking with the tactics of the Bush administration. President Obama will find it difficult if not impossible to achieve his stated goal, of two states equally free and equally secure, by continuing the failed policies that have led to the disaster of the Gaza Strip.

Geoffrey Aronson is the Director of Research and Publications at the Foundation for Middle East Peace and editor of the Foundation's report on Israeli Settlement Activities in the Occupied Territories. He is a consultant to the EUPOLCOPPS security mission in the West Bank and was a member of the World Bank team during Israel's disengagement from the Gaza Strip in 2004-2005.

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