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The U.S. Supreme Court will judge a case that pits the right to free speech against a federal terrorism law. Today, the court hears a challenge to the Patriot Act. It was passed after 9/11, and the law makes it a crime for an American citizen to support any group designated as a terrorist organization. That sounds straightforward, except that its critics say the law bands what would otherwise be peaceful, lawful activity on behalf of a designated group. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Federal law makes it a crime to provide material support to any organization designated a terrorist group by the secretary of state. And the definition of material support includes not just providing weapons or money or bomb-making skills. It includes providing any sort of expert advice, training or personnel - including advice on how to resolve disputes peaceably or training on how to make human rights claims before the U.N.
The nonprofit Humanitarian Law Project has a long history of engaging in such activity, mediating international conflicts and promoting human rights. But it has stopped doing some of its work for fear of being prosecuted under the material support provision.
Ralph Fertig is president of the organization.
Mr. RALPH FERTIG (President, Humanitarian Law Project): My speech is particularly nonviolent. I mean, I've gone to jail in the United States as a freedom writer for my advocacy for peace.
TOTENBERG: The federal government, he maintains, cannot constitutionally make it a crime to help others advocate lawful, peaceful solutions to international conflicts. In particular, Fertig and his organization have helped the Kurdistan Workers Party - sometimes known as the PKK - make human rights claims before international bodies. They've trained Kurdish leaders in peacemaking negotiations and have brought them to Washington to lobby. But when the PKK was designated an international terrorist organization under the Patriot Act, that all stopped, and the Humanitarian Law Project went to court.
The government argues that the PKK has engaged in terrorist activities that have cost some 22,000 lives. So the government says it was justified in making the organization a pariah. The government contends even filing a legal brief on behalf of the PKK in an American court would be a crime. Here's an exchange in 2007 between Judge Sidney Thomas and Justice Department lawyer Douglas Letter.
Mr. DOUGLAS LETTER (Justice Department Lawyer): If they file, for example, an amicus brief here, that would be a criminal act.
Judge SIDNEY THOMAS (9th Circuit Court of Appeals): Yes, because Congress wants these organizations to be radioactive.
TOTENBERG: The 9th Circuit Court of Appeals ruled that as applied in this case, the law is unconstitutional.
Today in the Supreme Court, lawyer David Cole - representing Mr. Fertig and the Humanitarian Law Project - will tell the justices that the government's radioactive argument flies in the face of the Constitution.
Mr. DAVID COLE (Lawyer): The interest in stopping even pure speech, furthering no illegal ends, simply because you don't like an organization, because you've decided to make an organization radioactive, is impermissible under our First Amendment.
TOTENBERG: Juan Zarate, who served as President Bush's deputy national security adviser for counterterrorism until 2009, counters that argument this way...
Mr. JUAN ZARATE (Former Deputy National Security Advisor): I don't think anyone would say that we should allow somebody to go meet with Osama bin Laden or Mullah Omar to help provide them with some PR training to make their case more effectively.
TOTENBERG: But al-Qaida is different from the PKK, responds Mr. Cole. Congress designated al-Qaida our enemy after 9/11.
Mr. COLE: Because we are at war with al-Qaida, the government has a much broader range of conduct that it can prohibit in terms of aiding the enemy than it does with respect to a group like the Kurdistan Workers Party, with which we're not in any kind of a military conflict.
TOTENBERG: The Carter Center and other human rights organizations are supporting the Humanitarian Law Project. In a statement, former President Carter said the material support law actually hinders peaceful resolution of violent conflicts. Our work to end violence, he said, sometimes requires interacting directly with groups that have engaged in it, as a way to get them to give up violence. It was precisely such contact with the IRA in Ireland and the African National Congress in South Africa that led to peaceful resolution of those conflicts.
But Juan Zarate, the Bush administration and the Obama administration say the U.S. government has every right to delegitimize terrorist organizations.
Mr. ZARATE: If you're training them on how to make their case before a U.N. tribunal, what you're doing is giving them the skills, the ability to legitimate their cause, to advocate their position, and from a U.S. government standpoint, that's dangerous.
TOTENBERG: David Cole, representing the Humanitarian Law Project, notes, however, that the State Department designates organizations as terrorist groups without review. Thus, for example, the PKK is designated a terrorist organization, but the PLO is not.
Mr. COLE: The danger there is that it creates the possibility for the government to make it a crime to speak with any group that the government doesn't like. That distorts public debate on issues of foreign policy which should be just as free and unfettered as public debate on any other political issue.
TOTENBERG: Juan Zarate observes, however, that resources are fungible in terrorist organizations.
Mr. ZARATE: Part of the issue here is that we are dealing with multiple terrorist organizations around the world that are complex organizations. In many respects, they are not just militant organizations. They have charitable wings. They have political arms. And so the application of the statute runs into complications because there may be cases in which it appears legitimate to deal with these organizations from a political or humanitarian standpoint.
TOTENBERG: Still, the way the U.S. government interprets this law is itself so complicated that the courts have said, so far, that an average person would have a hard time knowing for sure what's a crime. For example, the government says teaching geography is not giving expert advice, but teaching political geography is. Mr. Zarate and Mr. Cole agree that under the statute, as interpreted by the government, a U.S. citizen like Mr. Fertig could write an op-ed piece on behalf of the Kurdish cause, but he could go to prison if he consulted with the PKK leadership about what he would say. The Bush administration's Mr. Zarate concedes that the distinction may be difficult to comprehend.
Mr. ZARATE: It's hard to put your arms around it sometimes because it may appear to be a distinction without a difference. But I think in terms of the law, it's actually a very important distinction, and one in which the U.S. government is saying this group, these groups listed by the secretary of state, are off limits to U.S. citizens.
TOTENBERG: Mr. Cole sees it differently. An op-ed piece can't be illegal, he argues, even if it's written in conjunction with a foreign organization like the PKK.
Mr. COLE: The only difference is that our clients want to do it with a group that our government, through an unreviewable determination, has put on a black list. That's guilt by association.
TOTENBERG: Now these questions are up to the U.S. Supreme Court.
Nina Totenberg, NPR News, Washington.
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