21 June 2010

Holder v. Humanitarian Law Project

One of the implications of the government's power to designate foreign political factions as "terrorist" groups is the assumed right to regulate and criminalize American citizens' involvement with such groups. The scope of that right was clarified today when the Supreme Court ruled 6-3 in favor of the Obama administration's reading of a ban on "material support" for such groups. In Holder v Humanitarian Law Project the government was challenged by a plaintiff that wished to teach the Kurdish separatist group PKK and the Tamil Tigers of Sri Lanka how to use non-violent means to get claims heard by international human-rights bodies. The HLP felt entitled to do this despite the existing law because they didn't propose to provide these groups with any means to help them wage war or perpetrate terrorist attacks. They also worried that a broad interpretation of the law violated their First Amendment right to advocate for the two organizations. The majority, speaking through Chief Justice Roberts, ruled that the plaintiffs retained their fundamental right to speak out or publish in the groups' interests, which were not constrained by the law, but that providing the groups even the sort of legal-service aid proposed would violate the ban on material support. The Chief Justice explains that providing such services could free up resources that the PKK or Tamil Tigers could then divert to terrorism.

While both groups have reportedly killed Americans in the past, neither is an essentially anti-American organization to my knowledge. Neither is "at war" with the United States. Each claims to represent a minority that wants independence from the majority regimes in their respective countries. From Roberts's opinion it becomes clear that they're on the U.S. terrorist list, and are denied material support from American citizens, not so much because of an objective repudiation of terrorism around the world but as a matter of maintaining good relations with the governments of Turkey and Sri Lanka. The Court calls on Americans to defer to the President and Congress's understanding, based on superior access to intelligence, that these groups are unworthy of individual American aid.

The dissenters, led by Justice Breyer, find a direct violation of the First Amendment and a slippery-slope threat to Americans' right even to sympathize publicly with "terrorist" groups not "at war" with the U.S. In closing, Breyer writes that Americans need to "consider how to apply the First Amendment when national security interests are at stake." Whether national security and diplomacy are one and the same, given that the latter seems really at stake here, is not considered here, but Breyer insists that deference to the other branches' expertise or authority on national security "do not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals." Also unaddressed is the fundamental question of Americans' right, relative to their own government, to intervene even nonviolently in the affairs of other countries. It's each individual's prerogative to decide for himself that the Kurds or the Tamils are getting raw deals from their governments. It's obviously the individual's right to say so in the American media, as the majority affirmed. Given the existence of an international human-rights community of concerned individuals who investigate rights violations around the world, have Americans a right to participate in that community. Conversely, has the U.S. government a right to constrain such activity on national-security or other grounds? The Court says yes today, but the dissenters say that the government can't impose such limits without potentially threatening the more essential right to dissent from American foreign policy. The Obama administration and the conservative majority of the Roberts Court are on the same side this time. Does that prove that nonpartisan objectivity and dispassionate justice prevailed, or that bipartisan power upheld its own prerogatives at the expense of individual liberty? Figure it out for yourselves.

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