In our last newsletter we featured a link to a New York Times op-ed by Georgetown University Law Center’s Prof. David Cole that used the example of four former Republican officials’ advocacy for removing the Mujahedin e Khalq (MEK) from the State Department’s list of Foreign Terrorist Organizations to show the absurdity of our current laws defining material support of terrorism.
The op-ed provoked a spirited response in the National Review from the four officials – Michael Mukasey, U.S. Attorney under President George W. Bush from 2007-2009, Tom Ridge, Bush’s homeland security advisor form 2001-2003 and Secretary of the Homeland Security Department from 2003 – 2005, former New York City mayor Rudolph Giuliani and Bush homeland security advisor Frances Townsend – who said the material support statute does not need revision, but that enforcement should only apply to “accurately designated organizations, of which MEK is not one.”
The problem they, and anyone who disagrees with a terrorist listing, face, is that the law does not allow private citizens to unilaterally ignore a terrorist listing because it is flawed, whether based on the facts, the lack of due process, or both. In a responsive Huffington Post blog, Cole points out that “the material support statute expressly provides that one cannot defend one’s support of a designated group by challenging the propriety of the designation in court.” It goes on to note that the Bush administration defended this provision successfully in a case involving the MEK, U.S. v. Afshari, 427 F.3d 646 (9th Cir. 2005).
The four MEK advocates’ National Review op-ed argues that they did not act under the direction or control of MEK, and therefore cannot be considered to have provided MEK with “personnel.” If only it were that simple! The CBSNews Political Hotsheet notes the flaw in this analysis, saying,
“Yet it’s not clear that the efforts of the Giuliani and the others constituted acting ‘entirely independently,’ particularly since, as Gawker notes, the Supreme Court has deemed ‘advocacy performed in coordination with, or at the direction of, a foreign terrorist organization’ a crime. Seeing as Giuliani and the others were speaking at French Committee for a Democratic Iran, which was reportedly formed to support the MEK, the case could be made that they were acting ‘in coordination with’ the group.”
Up until June 2010 reasonable minds could differ about what the material support law meant. But after the Supreme Court ruling in the Humanitarian Law Project case upheld its application to peacebuilding activities, there is no doubt. As salon.com commentator Glen Greenwald noted in a post on this topic, “There are people sitting in prison right now with extremely long prison sentences for so-called “material support for terrorism” who did little different than what these right-wing advocates just did.”
The four conservative MEK supporters are right to be concerned about flaws in the listing and de-listing process. U.S. nonprofit organizations have been struggling with these issues for years. Listings made without adequate due process or chance to appeal, based on secret or questionable evidence, do not engender public trust in the process. When they include groups that, like the MEK, have been cleared in other countries, the credibility of the process is further undermined. (For another example see case of the UK based Interpal.)
The National Review posting complains that Prof. Cole is engaged in “rhetorical jujitsu designed to enlist us in his campaign to change the federal statute that bars such assistance.” This debate over the meaning of the law is a good indication that some fixes, or at least clarifications, are in order. Mukasey, Giuliani, Ridge and Townsend are all welcome to a discussion of how to make sure the law protects their advocacy, as well as that of other Americans.