U.S. Supreme Court Ruling on Interactions with Terrorist Groups Raises Questions among Peacemakers
 

The U.S. Supreme Court decision in Holder v. Humanitarian Law Project in June upheld laws that make it a crime to provide ‘material support’ to groups designated by the U.S. State and Treasury Departments as foreign terrorist organizations. The United States Institute of Peace and other nongovernmental organizations are concerned this decision will inhibit their ability to interact with or provide conflict resolution training to any groups on the proscribed lists.

The statute, as interpreted by the Court, defines providing ‘material support’ to mean a number of things, including “tangible or intangible resources, service,” “training, expert advice or assistance” or “personnel, and transportation, except medicine or religious materials.”

USIP held a public discussion on the implications of this decision for international nongovernmental organizations and peace negotiations with a group of legal experts, conflict management specialists and diplomats on September 10, 2010. The panel presented ideas on how peacebuilding could be done in the future, with the Holder decision in mind.

Panelists included David Cole, a professor from Georgetown Law School; Alistar Millar, the director of the Center on Global Counterterrorism Cooperation; Kenneth Wainstein, an attorney from O’Melveny and Meyers and former federal prosecutor; Chester Crocker, a member of USIP’s board of directors and professor at Georgetown University’s Walsh School of Foreign Service; and Kay Guinane, a program manager from the Charity and Security Network. USIP’s David Smock served as the moderator.

The September 10 event took place against the backdrop of two recent USIP reports on this critically important set of issues. In June, the USIP Special Report, "Mediating Peace with Proscribed Armed Groups," written by Véronique Dudouet, a senior researcher at Berghof Conflict Research in Berlin, addressed similar issues. The report, informed by a workshop convened by Berghof and USIP, discusses “modes of engagement with proscribed armed groups (e.g., armed groups, such as the LTTE in Sri Lanka and Hamas in the Palestinian Territories), the violent tactics of which lead governments to restrict third parties from engaging with them.” USIP in May published the Special Report, “When Should We Talk to Terrorists?” by Audrey Kurth Cronin, a professor at the National Defense University. The report explains “the conditions under which governments might promisingly negotiate with terrorist groups so as to end their violence.”

The majority of the panel expressed concerns that the Holder v. Humanitarian Law Project opinion could cast a cloud over the entire field of peacemaking. Some panelists wanted to know if organizations would have to ask the State Department to approve international aid work in order to avoid criminal charges. Smock said it is not clear how the opinion in Holder v. Humanitarian Law Project will be interpreted and applied by the Executive Branch, but many organizations do not want to find out the hard way.

“This Supreme Court ruling places a major obstacle in the path of international peacebuilding for organizations like USIP,” Smock said.

Cole said he does not think Congress intended to criminalize mediation and negotiation-related training with listed organizations when it approved The Patriot Act.

Millar said he also sees problems with the State Department listing terrorist organizations. While listing terrorists may deter people from giving money to them, it could actually add to terrorists’ stature and notoriety to be recognized by the U.S. He said, in the real world, terrorism is not stopped by lists, but rather through prolonged discussion aimed at testing behavior and isolating hardliners.

Millar mentioned how initiating political negotiations with the Irish Republican Army (IRA) and the Palestinian Liberation Organization (PLO) swung public support behind peaceful solutions and diminished popular support for acts of terrorism. He referred to a 1999 USIP report, “How Terrorism Ends,” which discussed how peacemakers urge peaceful solutions through conversations with these groups. The IRA and PLO were considered “successful” case studies because the organizations in question have embraced political dialogue instead of violence to pursue their aims.

“A list is not applicable in the real world,” Millar said. “There need to be restrictions, but there needs to be flexibility in how those restrictions are applied.”

Wainstein disagreed. He said the decision to curb contributions to terrorist organizations is both constitutional and good policy. This case was a value judgment based on the government’s interest in stopping terrorism, because the U.S. still faces the threat of terrorist attacks, Wainstein said. The ban on assisting terrorist organizations is similar to other embargos the U.S. has made in the past to deter interaction with threatening groups. To engage with them could confer legitimacy on them which is contrary to U.S. interests.

An experienced American diplomat and former assistant secretary of state for African Affairs, Crocker said his main concern is that these laws will deter external mediation efforts by individuals and organizations based in or supported by the U.S. and the 27 members of the European Union (which also has a list of proscribed organizations). He added that the important thing in engaging with armed actors is not whether we talk to them but what we say to them. Noting that there are 47 terrorist groups on the State Department’s List of Foreign Terrorists and hundreds more on the Treasury Department lists, Crocker said most of these organizations do not consider themselves to be at war with the U.S., nor are we at war with most of them. Furthermore, some organizations are involved in just as much conflict, yet are not on the list.

Panelists discussed possible remedies to the unfortunate situation created by reliance solely on current lists and on the Holder opinion as to the meaning of ‘material support.’ For example, lists could be reviewed, the criteria for inclusion and removal made more transparent, and the applicability of the ‘material support’ ban defined more precisely by the executive branch. Another approach is for concerned organizations to work for legislative remedies. Some panelists suggested that there could be merit in groups’ applying for case specific or general waivers, something that the State Department can readily provide.

Until then, grantmakers, lawyers and international aid workers will have to be even more careful about what they say and do in the sphere of peacebuilding, capacity building, facilitation or mediation when dealing with organizations on the government’s lists.

Speakers

• David Cole
  Georgetown Law School
• Alistar Millar
  Director of the Center on Global Counterterrorism Cooperation
• Kenneth Wainstein
  O’Melveny and Meyers and former federal prosecutor
• Chester Crocker
  Georgetown University
  U.S. Institute of Peace
• Kay Guinane
  Charity and Security Network
• David Smock, Moderator
  U.S. Institute of Peace

Explore Further

• Read the recent USIP special report "Mediating Peace with Proscribed Armed Groups"
• Watch USIP Senior Fellow (2009-2010) George Lopez comment on the implications of Holder v. Humanitarian Law project