In late September 2010, the FBI carried out a series of raids of homes and offices of activists in Minneapolis and Chicago. Following the raids, the Obama Justice Department subpoenaed 14 activists to a grand jury in Chicago, as well as the files of several antiwar and community organizations. In carrying out these repressive actions, the Justice Department was taking its lead from the Supreme Court's 6-3 opinion last June in Holder v. the Humanitarian Law Project, which decided that nonviolent First Amendment speech and advocacy "coordinated with" or "under the direction of" a foreign group listed by the Secretary of State as "terrorist" was a crime.
The search warrants and grand jury subpoenas make it clear that federal prosecutors are intent on accusing nonviolent political organizers of providing "material support" through their public advocacy for the Popular Front for the Liberation of Palestine (PFLP) and the Revolutionary Armed Forces of Colombia (FARC). The Secretary of State has determined that both PLFP and FARC "threaten U.S. national security, foreign policy, or economic interests"—a finding not reviewable by the courts—and listed both groups as foreign terrorist organizations (FTOs).
In 1996, Congress made it a crime—then punishable by 10 years (later increased to 15)—for anyone in the U.S. to provide "material support or resources to a foreign terrorist organization or attempt or conspire to do so." The present statute defines "material support or resources" as: "any property, tangible or intangible, or service, including currency or monetary instruments or financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation except medicine or religious materials."
In the Humanitarian Law Project case, human rights workers wanted to teach members of the Kurdistan PKK, which seeks an independent Kurdish state, and the Liberation Tigers of Tamil Eelam (LTTE), which sought an independent state in Sri Lanka, how to use humanitarian and international law to peacefully resolve disputes and obtain relief from the United Nations and other international bodies for human rights abuses by the governments of Turkey and Sri Lanka. Both organizations were designated FTOs by the Secretary of State in a closed hearing, where evidence is heard secretly.
Despite the nonviolent, peacemaking goal of the Humanitarian Law Project, the majority of the Supreme Court interpreted the law to make such conduct a crime. Finding a new exception to the First Amendment, the Court decided that any support, even if it involves nonviolent efforts towards peace, is illegal under the law since it "frees up other resources within the organization that may be put to violent ends" and also helps lend "legitimacy" to foreign terrorist groups. Writing for the majority, Chief Justice Roberts, despite the lack of any evidence, further opined that the FTO could use the human rights law to "intimidate, harass, or destruct" its adversaries and that even peace talks themselves could be used as a cover to re-arm for further attacks. Thus, the Court's opinion criminalizes efforts by independent groups to work for peace if they in any way cooperate or coordinate with designated FTOs.
The Court distinguishes what it refers to as "independent advocacy," which it finds is not prohibited by the statute from "advocacy performed in coordination with, or at the direction of, a foreign terrorist organization," which is, for the first time, found to be a crime under the statute. The exact line demarcating where independent advocacy becomes impermissible is left open and vague.
Seizing on this overbroad definition of "material support," the U.S. government is going after activists who are clearly exercising First Amendment rights by vocally opposing the government's branding of foreign liberation movements as terrorist and supporting their struggles against U.S.-backed repressive regimes.
Under the new definition of "material support," the efforts of President Jimmy Carter to monitor elections in Lebanon and coordinate with the political parties there, including the designated FTO Hezbollah, could well be prosecuted as a crime. Similarly, the publication of op-ed articles by FTO spokespeople from Hamas or other designated groups by the New York Times or the Washington Post, or the filing of amicus briefs by human rights attorneys arguing against a group's terrorist designation or the statute itself, could also now be prosecuted.
Of course, the first targets of this draconian expansion of the material support law will not be a former president, but members of left organizations.
In his foreword to Nelson Mandela's recent autobiography Conversations with Myself, President Obama wrote that "Mandela's sacrifice was so great that it called upon people everywhere to do what they could on behalf of human progress. The first time I became politically active was during my college years, when I joined a campaign on behalf of divestment, and the effort to end apartheid in South Africa." At the time of Obama's First Amendment advocacy, Mandela and his organization the African National Congress (ANC) were denounced as terrorists by the U.S. government. If the "material support" law had been in effect back then, Obama would have been subject to potential criminal prosecution. It is ironic that the same person who speaks with such reverence for Mandela now allows the Justice Department under his presidency to criminalize similar First Amendment advocacy against Israeli apartheid and repressive foreign governments.
Michael Deutsch is a lawyer with the People's Law Office in Chicago. He has represented political activists and victims of government repression, including Attica Prisoners in 1971, Puerto Rican independence fighters, members of the Black Liberation movement, and Palestinians falsely accused of terrorism.