Can speech constitute terrorism?

Shayana Kadidal, a senior managing attorney at the Center for Constitutional Rights, lays out the issues in fron of the Supreme Court today in a case that asks whether political speech – writing an op-ed for, or teaching nonviolent conflict resolution to a group on the government’s blacklists – can constitute a crime of terrorism carrying a fifteen year prison sentence.

The law at issue is the “material support” statute. Created in 1996 and modified several times by Congress (including in the Patriot Act) after parts of it were struck down by earlier rounds of this lawsuit, the statute allows the State Department to create a blacklist of “foreign terrorist organizations” – defined very broadly to include groups that engage in violence against property that hurts U.S. economic interests. Once a group is on the blacklist, virtually any form of association with the group becomes a crime.

Once obscure, the law is becoming more familiar as it is invoked in almost every terrorism prosecution brought since 9/11. People hear the term “material support” and, because the word “material” connotes “tangible,” assume it must mean things akin to weapons or money. But in fact the statute specifically says that various intangibles – “training,” “expert advice or assistance,” “personnel” or “services” – all are included within the ban.

Our plaintiffs are a variety of U.S.-based humanitarian activists. Humanitarian Law Project and its founder Ralph Fertig seek to work with members of one of the blacklisted groups, the Kurdistan Workers Party (PKK), teaching them how to monitor human rights abuses against the Kurds, bring human rights complaints to the UN, and encourage the PKK – which like many separatist groups has engaged in both peaceful advocacy and violence – to solve their disputes through nonviolent conflict resolution. The other plaintiffs are Tamil-American groups that sought to send humanitarian aid – money, relief supplies, and their own members (doctors, lawyers and engineers) – to do medical relief and help rebuild the parts of Sri Lanka devastated by the civil war between the government and a rebel group on the list, the Tamil Tigers (LTTE). Because the LTTE served as the functioning government in the area prior to 2009, any aid workers there would have to have dealt with the group in the course of carrying out their humanitarian missions. After the December 26, 2004 Indian Ocean Tsunami, those same LTTE controlled-parts of Sri Lanka already devastated by the civil war were further ravaged. Yet the prohibitions prevented Tamil-Americans from traveling there to help deal with one of the ten greatest natural disasters in recorded history.

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