Supreme Court On ‘Moderate’ Terrorists: Fuggedaboutit

by Frank Gaffney

Bad news today for President Obama, his Counterterrorism and Homeland Security Advisor, John Brennan, and other proponents of the idea that the United States can safely reach out to “moderate” elements within terrorist organizations like Hamas, Hezbollah and the Taliban.  In a 6-3 ruling, the U.S. Supreme Court found that no distinction can be made between violent and non-violent wings of such groups and that the former will be beneficiaries of whatever “material support” is given them.

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As Stephen Landman of the indispensable Investigative Project on Terrorism’s IPT News reported in a post Monday:

“The court roundly rejected the claims that there’s a distinction between aid to a terrorist group’s “social” wing, as opposed to its military wing….:

Material support meant to “promote peaceable, lawful conduct” can further terrorism by foreign groups in multiple ways. Material support is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups – legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds – all of which facilitate more terrorist attacks.

As a result of this ruling upholding the material support statute, it remains illegal to provide to designated terrorist groups “any property, tangible or intangible, or service, including currency or monetary instrument or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials.”

The Court found:  “Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question. When it enacted section 2339B in 1996, Congress made specific findings regarding the serious threat posed by international terrorism. One of those findings explicitly rejects plaintiffs’ contention that their support would not further the terrorist activities of the Kurdish Workers Party (PKK) and the Tamil Tigers (LTTE): ‘Foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’”

The ruling in Holder v. The Humanitarian Law Project also determined that: “Material support meant to ‘promote peaceable, lawful conduct’ can further terrorism by foreign groups in multiple ways. Material support is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups – legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds – all of which facilitate more terrorist attacks.”

The logic of the Supreme Court’s decision on material support suggests that it would be illegal to provide $400 million via the so-called “moderates” of the Palestinian Authority to the designated terrorist organization (DTO) Hamas, which runs the Gaza Strip – something President Obama has announced he intends to do.  It should also preclude the sort of “outreach” to the so-called “moderates” of another DTO, Hezbollah, as presidential advisor Brennan has twice indicated he thinks is in order.  Ditto negotiations with “moderate” members of the Taliban, at least to the extent such a process entails what amounts to material support to that terrorist organization in the form of financial or other substantial inducements to their cooperation.

What is more, the Supremes’ ruling in this case essentially upholds a landmark en banc opinion issued last year by the 7th Circuit in Boim v. Holy Land Foundation.  The latter decision written for the majority by highly esteemed Judge Richard Posner found that a contribution made to an organization embracing a doctrine like Shariah that calls on its adherents to engage in jihad amounts to material support.  This outcome was particularly gratifying for the Center for Security Policy as it filed an amicus brief in the case making precisely that argument.

Particularly noteworthy is the fact that the Supreme Court actually endorsed a broad interpretation of the material support statute.  Solicitor General Elena Kagan espoused the view that the law regulates conduct only, not speech per se. The Court found that the statute does indeed regulate speech and that Congress can criminalize speech on behalf of a known terrorist organization – even if such speech is for legal ends, as long as that speech also provides material support to said organization.

Accordingly, it appears that, for example, if an imam were to issue a Shariah fatwa “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations,” he would be guilty of violation of the material support statute.  This could constitute a powerful new tool for countering the stealth jihad inside the United States.

By the same token, the Supreme Court ruling would apply to overseas activities as well, such as the so-called “humanitarian flotilla” that sought to break Israel’s naval blockade of Hamastan in Gaza.  Any U.S. organization that coordinated their support for this affair with Hamas in any way would be guilty of providing material support in violation of the statute.

In short, the top court in a federal judiciary that has in recent years handed a succession of victories to America’s terrorist foes – dare we call it “material support? – has rendered a decision in Holder v. the Humanitarian Law Project of signal importance.  It now behooves the Obama administration to conform its own policies and behavior to the letter and spirit of this sensible ruling, even as it enforces the law vigorously.


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Posted Jun 22nd 2010 at 8:07 am in Defense, News, Obama, Politics, Uncategorized | 70 Comments