STEVE INSKEEP, Host:
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: Ralph Fertig is president of the organization.
RALPH FERTIG: 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 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.
DOUGLAS LETTER: If they file, for example, an amicus brief here, that would be a criminal act.
SIDNEY THOMAS: Yes, because Congress wants these organizations to be radioactive.
TOTENBERG: 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.
DAVID COLE: 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...
JUAN ZARATE: 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.
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: But Juan Zarate, the Bush administration and the Obama administration say the U.S. government has every right to delegitimize terrorist organizations.
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.
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.
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.
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.
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: Nina Totenberg, NPR News, Washington.
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