September 17, 2010 is the 223rd anniversary of the adoption of the United States Constitution. Many events are highlighting threats to our constitutional system and the liberties its Bill of Rights established. National security laws that infringe on our personal liberties and right to privacy, such as broad surveillance powers and growing government secrecy, have all been the subject of protest and advocacy for reform.
But it is not just our personal liberties that are threatened. Our democratic society depends on an open and active civil society to hold government accountable and to provide the space from which people can exercise their First Amendment rights of speech, assembly and petitioning the government for redress of grievances. All kinds of groups make up this civil society, including charities, religious congregations, educational institutions, advocacy groups and peacebuilding programs. U.S. security laws and overly broad counterterrorism policies increasingly restrict these groups and create barriers to their legitimate operations.
This is counterproductive in that it limits the ability of civil society groups to address root causes of violent extremism. The people that operate aid, development, peace and other programs in hot spots in the world are front line fighters against terrorism. And the sharp increase of attacks on aid workers in the past few years shows that terrorist groups understand this very well: they don't want alternative visions to their terrorist narrative, and they don't want strong civil society organizations in their own countries to compete with them for hearts and minds.
The U.S. court system has sent mixed signals about how far government can go in limiting the Constitutional rights of American civil society organizations. In its now notorious June 2010 ruling in Holder v. Humanitarian Law Project the Supreme Court said a law criminalizing programs that seek to turn terrorists away from violence through conflict resolution and human rights training programs does not violate the First Amendment. But in two other cases, lower federal courts have held that the Department of Treasury's procedures for shutting down U.S. charities accused of supporting terrorism violate the Fourth and Fifth Amendments by seizing assets without a warrant and failing to provide due process for charities to defend themselves. (See more on the KindHearts and Al-Haramain decisions.)
The Humanitarian Law Project decision, coupled with the Obama administration's slow progress in addressing these problems, has generated a lot of frustration. But there are reasons to be optimistic about the prospects for reform. The widespread public criticism of the Humanitarian Law Project decision points to increasing public understanding that we have a problem that must be addressed.
But this problem won't fix itself. It will take patience, hard work, and consensus building. As labor leader Joe Hill said, "Don't Mourn, Organize!"