June 21, 2011: One year ago today the Supreme Court ruled that the law prohibiting material support of terrorism can be applied to training programs and advice by peacebuilding groups aimed solely at turning terrorists away from violence. The ruling, in Holder v. Humanitarian Law Project, was widely criticized as an unjustified intrusion on First Amendment rights based on questionable national security considerations. (see the New York Times, Washington Post, USA  Today and the Lexington (KY) Herald Leader.) 

The Court effectively abdicated its responsibility to protect First Amendment rights the Congress and executive branch. Now, one year later, it is past time for the Secretary of State Hillary Clinton to use her statutory powers to ensure the material support law is applied in a way that enhances security and First Amendment rights.

In the case of peacebuilding activities, there is a win-win solution. When Congress passed the material support law it gave the Secretary of State the power to grant exemptions for activity involving training, expert and advice and assistance and personnel. (18 USC 2339(B)(j))  A May 12 letter from a bipartisan group of 18 organizations and 27 peacebuilding and foreign policy experts to Secretary of State asked her to use the exemption power to make conflict resolution and other peacebuilding activities legal.
The letter notes the importance of multi-track diplomacy, saying,  “For many years, U.S. organizations and private individuals have paved the way for peace by helping to bring fighting factions together and providing alternatives to violence as a means of redressing grievances. We know that these initiatives can be the key to success in resolving conflicts.” The letter includes an attachment with examples of lost opportunities for pursuing peace caused by the overly broad application of the material support prohibition. (see examples here.)
One notable example involves the United States Institute of Peace (USIP), which had to turn down an invitation from the government of South Africa to help facilitate a meeting between leaders of Hamas and Fatah with former Israeli generals and officials. Imagine what progress might have been made when USIP’s expertise and South Africa’s experience in shifting from armed conflict over apartheid to democracy were combined! Imagine representatives from Hamas hearing from former African National Congress members about the challenges and benefits of shifting from armed conflict to a peace process. The fact that U.S. law not only prohibits USIP from participating, or else face criminal prosecution and jail sentences of 15 years or more is a national embarrassment.
A recent Council on Foreign Relations article by Douglas N. Greenburg and Derek D. Smith notes the contradiction the material support prohibition creates for the U.S. government’s response to the reconciliation agreement between Fatah and Hamas. It notes that the agreement:
“…raises a number of difficult issues for the United States. Among these is whether Washington can lawfully continue to provide aid to the Palestinian Authority (PA) if it includes Hamas as an equal partner. After all, existing U.S. law designates Hamas as a terrorist organization and thus prevents the United States from aiding it in any way.”
A similar contradiction confounds the U.S. government’s efforts to negotiate with the Taliban. On June 19, 2011 outgoing Secretary of Defense Gates told the press that U.S. officials have been in talks with the Taliban in Afghanistan. But the Taliban is on the Department of Treasury’s list of terrorist organizations. Are these officials in violation of the material support law, or have they been granted an exemption? Or is the law just not being enforced?
If an exemption has been granted, it illustrates the problems with case-by-case off-the-record (secret) exemptions. What conclusions can the public draw from the Taliban negotiations? Is it OK to ignore the law? Is that the conclusion the Department of State intends?
The general exemption for peacebuilding activities proposed by the bipartisan group of experts is a far better way to address the issue. The proposed exemption permits specific types of peacebuilding activities, that are “designed to reduce or eliminate the frequency and severity of violent conflict, or to reduce its impact on noncombatants…” It would essentially re-open the door to the kind of multi-track diplomacy that has lead to peace in Northern Ireland and other conflicts.
The examples Clinton has been reminded of demonstrate that criminalizing peacebuilding in application of the material support law does more harm than good. The lack of prosecutions of peacebuilding groups does not negate this harm. Clinton has the power and the responsibility to solve this problem. She is a strong supporter of civil society, and now can demonstrate that support by adopting the proposed exemption.