Wednesday, June 23, 2010


     The New York Times editorial board has for a long time predictably affirmed the ACLU philosophy of unthinking academic-like purity on First Amendment issues of freedom of speech. It is therefore not surprising that the Times abandoned common sense once again and editorialized against the recent Supreme Court decision in the case of the Humanitarian Law Project vs. Holder, which sued the federal government to overturn a prohibition against providing "expert advice or assistance" to terrorist groups. The prohibition was written into the 2001 Patriot Act.

     The Supreme Court rejected the claims of the Humanitarian Law Project and upheld the Patriot Act prohibitions in a 6-3 decision. The Times editorial then claimed that: "By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens."

     The Times, in typical fashion, attempted to add strength to its position by omitting two very interesting and newsworthy bits of information. It simply reported that the court’s opinion was ". . . written by Chief Justice John Roberts Jr. on behalf of five other justices." Left out by the always liberal Times was the embarrassing fact that besides the four justice "conservative" bloc and the "swing voting" Justice Anthony Kennedy, the majority included Justice John Paul Stevens, long considered the Court’s most liberal justice. Another "overlooked" fact was that the government’s case against the Humanitarian Law Project was argued by Solicitor General Elena Kagan nominated to the Court for her liberal credentials and who will soon replace the retiring Justice Stevens.

     Putting aside the fact that few American citizens are lining up to aid or associate with terrorist groups and thus will feel their First Amendment rights reduced, the argument of the plaintiff was essentially that the Patriot Act's definition of "material support" was overly broad and would thus deter "lawyers, journalists or academics who represent or study terrorist groups." This hypothetical claim tosses common sense into the ideological waste basket. Terrorists and their organizations that fall within the jurisdiction of the United States have a constitutional right to legal representation . Journalists and academics who choose to "study" terrorist groups are the recipients of information and assistance, not the providers.

     Specifically, “the law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations." The two groups are the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party.

     The naiveté of such a claim, if indeed that was the actual motivation, is staggering.
The Liberation Tigers had been at war with the government of Sri Lanka since 1976. Before their military defeat in 2009, they engaged in political assassinations including that of Indian Prime Minister Rajiv Ghandi; may have been the inventors of the explosive suicide belt, and even used light aircraft against the government. Their tactics put them on the terrorist lists of thirty-two countries. But after thirty-four years of violence the Humanitarian Law Project wanted to give them "advice" on "how to peacefully resolve there disputes, in this case secession from Sri Lanka, and "work with the United Nations".

     The history of the Kurdistan Workers Party may even be worse. Established as a Marxist-Leninist separatist organization the KWP has since 1984 engaged in open warfare and urban terrorists attacks which have claimed over thirty thousand casualties. Although going through several name changes and alleged cease fires and claims of adopting a tactic of nonviolence, the KWP has continued attacks and refused to disarm. The KWP mostly targets Turks and Turkish diplomatic and commercial enterprises in both Turkey and in Western Europe. They have bombed Turkish hotels and kidnapped and killed foreign tourists in Turkey. What "advice" the Humanitarian Law Project could offer that has not been available in this twenty-six year conflict is hard to imagine. But the case could have wider implications thus the articulation of the scope of the law by the Court's majority is important.,

     "Any tangible support -- money, legal aid or political advice -- "frees up other resources within the organization that may be put to violent ends," Chief Justice John Roberts said in the majority opinion.
"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," Roberts said.

     Two interesting footnotes to the case are: Jimmy Carter filed a brief in support of the Humanitarian Law Project, an affirmation of the wisdom of the Court's decision. And in spite of the Times editorial claim that the decision represents a "Bruise on the First Amendment, Solicitor General and soon to be Supreme Court Justice Kagan told he Court:
     "What Congress decided is that when you help Hezbollah build homes, you are also helping Hezbollah build bombs."

     The six Justices in the majority obviously agreed and self styled “humanitarian” peace groups who believe that they can “train” terrorists to abandon terrorism need to take heed.

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