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Rex Brynen
06-30-2010, 02:32 PM
The US Supreme Court recently upheld sections of the Patriot Act which make illegal any material support to a designated terrorist group, regardless of whether that support is intended (or has the effect) of supporting acts of violence.

Supreme Court upholds terrorism support law (http://www.reuters.com/article/idUSTRE65K4B420100621), Reuters, 21 June 2010.

One interesting effect of this, however, is to apparently render illegal efforts by NGOs and others to encourage armed groups to seek a peaceful, negotiated resolution of their grievances:


The US Supreme Court ruled last week that giving support to groups listed as terrorist is illegal, even if that support is designed to end violence.

The upshot is that work to end the world's ongoing armed conflicts through peaceful means - mediation support, or training in how to peacefully resolve disputes - comes with a risk of 15 years in prison.

The quiet diplomacy with IRA and loyalist paramilitaries which helped bring about the Good Friday agreement - meetings, training seminars and facilitated dialogues - would now be deemed a terrorist offence.

Those who engaged with the Sunni Awakening Councils in Iraq may, it turns out, have been breaking the law.

And those who are currently supporting the Afghan or Somali governments' policies of engagement with their sworn enemies could be at risk of prosecution.

This clarification of a law first adopted in 1996 and adjusted in the 2001 Patriot Act, is a big setback for American organisations well known for their work in mediation, such as the Carter Center, the American Friends Service Committee or the Conflict Management Group.

The long arm of US justice means that it extends to all of its residents and citizens (including those living abroad, like myself) and those organisations that receive US government funding.

Viewpoint: Ending wars peacefully just got harder (http://news.bbc.co.uk/2/hi/10432265.stm), BBC News, 29 June 2010.

Presumably, even the Catholic Church--or at least the Community of Sant'Egidio (http://en.wikipedia.org/wiki/Community_of_Sant'Egidio), renowned for its mediation efforts in civil wars--would be open to potential prosecution.

Where should the line be drawn on these kind of issues?

John T. Fishel
06-30-2010, 03:54 PM
Rex--

A key point to the law is that it only applies to groups designated by the US DOS as terrorists. And, we can only prosecute groups over which we have jurisdiction. So, if a Canadian NGO wanted to engage such a group, it would be subject to Canadian law, not US law. As for the Anbar Awakening, the main engagers were the US military in accordance with policy proposed by the Ambassador and the commander on the ground and approved by the SECDEF and the President.

I expect that JMM should join in on this.

Cheers

JohnT

PS This case, of course, shows that we should be very cautious about who DOS designates as terrorists - there are often many unintended consequences such as banning the travel of former FMLN leader, Juaquin Villalobos, from traveling to the US because his organization, the ERP, had once been so designated.

Rex Brynen
06-30-2010, 04:58 PM
John:

There were certainly US NGOs engaged with people linked to the Sunni insurgency in Iraq, not because they were supporting it, but rather because they were trying to encourage Sunni leaders to engage with the political process (rather than shooting at people). The point being raised in the article is that doing this has become something of a legal grey area in the US.

Let's say, for example, that a US NGO wishes to build the negotiating capacity of those in Hamas who support a two-state solution to the Israeli-Palestinian conflict, and who would be prepared to enter peace negotiations. Or, in another scenario, wishes to work with faction of the MEK who favour non-violent change in Iran.

Ought this be illegal, legal, or should (as in the UK legislation) there be some legal language that recognizes that there might be some justified grounds for interaction?

I've known cases where "material support" concerns has led to farcical situations, such as aid agencies seeking legal opinions before they consider supporting web-based projects on the grounds that designated groups on the DoS (or Canadian, or other) lists could access the website the same as anyone else, and "materially benefit" from the information provided. Indeed, if AQ or the Taliban read SWJ, would that make SWJ in violation of the law, given that criminal intent to support terrorism seems does not to be required element?

jmm99
06-30-2010, 07:00 PM
This 6-3 decision (Justice Stevens joined the majority) was much narrower than it might have been. It dealt only with intangible support given in whole or in part by speech. None of the nine justices questioned the regulation of tangible support (such as funding or arms) which has been the usual "material support" alleged in criminal indictments. So, 100+ convictions will not be affected by the decision.

Here are the definitional parts of the two statutes in question (wording dealt with in the HLP case is bolded):


§ 2339A. Providing material support to terrorists (http://www.law.cornell.edu/uscode/718/usc_sec_18_00002339---A000-.html)
....
(b) Definitions.— As used in this section—

(1) the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

(2) the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and

(3) the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.

and:


§ 2339B. Providing material support or resources to designated foreign terrorist organizations (http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002339---B000-.html)
....
(h) Provision of Personnel.— No person may be prosecuted under this section in connection with the term “personnel” unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.
....
(j) Exception.— No person may be prosecuted under this section in connection with the term “personnel”, “training”, or “expert advice or assistance” if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act).

The provisions above were the basis for the majority's distinction between what would be protected conduct using speech and unprotected conduct using speech which could be prosecuted, Holder v. Humanitarian Law Project, Opinion (http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf) (snips from pp.26-32 .pdf):


We next consider whether the material-support statute,as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their “pure political speech.” E.g., Brief for Plaintiffs 2, 25, 43. It has not. Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: “The statute does not prohibit independent advocacy or expression of any kind.” Brief for Government 13. Section 2339B also “does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so.” Id., at 60. Congress has not, therefore, sought to suppress ideas oropinions in the form of “pure political speech.” Rather, Congress has prohibited “material support,” which mostoften does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.
....
Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say.If plaintiffs’ speech to those groups imparts a “specificskill” or communicates advice derived from “specialized knowledge”—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. See Brief for Government 33–34. On the other hand, plaintiffs’ speech is not barred if it impartsonly general or unspecialized knowledge. See id., at 32.
....
The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure politicalspeech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do—provide material support to the PKK and LTTE in the form of speech.
...
The dissent argues that there is “no natural stopping place” for the proposition that aiding a foreign terroristorganization’s lawful activity promotes the terrorist organization as a whole. Post, at 10. But Congress hassettled on just such a natural stopping place: The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered. See supra, at 18–21.

All of this seems like very fine line drawing to me, although that tends to be the nature of free speech cases.

Lyle Denniston has an analysis at SCOTUSBlog, Analysis: Partial U.S. victory on terrorism (http://www.scotusblog.com/2010/06/analysis-partial-u-s-victory-on-terrorism/):


For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on Monday ruled decisively in the government’s favor — but still stopped short of providing an unqualified victory. The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

Conceptually, the ruling in companion cases involving supporters of dissidents in Turkey and Sri Lanka borrowed from a constitutional idea that the Court has used for years for domestic political organizations: the government has less power to control independent political advocacy than it does actions that are coordinated with the political parties. That concept was moved to the global stage, involving U.S.-based organizations or individuals who favor the peaceful goals of two overseas groups blacklisted by the State Department.

The cases of Holder v. Humanitarian Law Project, et al. (08-1498) and Humanitarian Law Project, et al., v. Holder (09-89) are the only war-on-terrorism cases the Court will decide this Term. They involved the federal law that bans “material support” to listed foreign terrorist organizations — the law that is the government’s favorite legal weapon against terrorists.. Although that law is most often used for criminal charges against violent actions or threats of violence, Monday’s decision did not involve that situation. The groups and individual involved do not support any terrorist actions by the listed groups. Rather, they wanted to avoid criminal prosecution for what they considered free speech or other forms of public advocacy to help the listed groups achieve peaceful goals. (much more in article). ....

This case will not have that much impact in the run of the mill "material support" case involving bomb makers, foreign fighters, etc.

Regards

Mike

M-A Lagrange
06-30-2010, 07:15 PM
Unfortunately, I do not get all the sense of what Mike did post. (Still have to work my juridicial english to get all the tiny variations)
But I would agree with John. If a US law forbide US NGo to conduct conflict management with terrorist groups or groups classified as terrorist, then funds will go to foreign branches of such organisations as CARE which as many foreign branches.
Secondly, I do not see it affecting much the NGo work. This because NGOs are dealing with population leaders most of the time. You do not approch that helder or that leader because he is a member of a terrorist group. At the best you get in touch with him by lucke. what you target are influencial people who will spread your voice.
Taking CARE work in South Somalia, they did not go to see Al Sheebab leaders but communities leaders who where close to the Shebab.
After, it may be a question of interpretation.
Also, would that touch the funds allocated by USAID and/or the congress?

Rex Brynen
06-30-2010, 07:31 PM
MA:

I'm referring to work by US NGOs that specifically interact with armed groups, not those that may deal with armed groups as a by-product of their development or humanitarian assistance programs.
To give some examples of what might be illegal:

1) Providing advice to a group on how to pursue their grievances through the political process, rather than through armed violence.

2) Providing assistance to a group to support the demobilization of their current child combatants.

As you know, both of these things are currently being done by US NGOs.

Ironically, providing medicine or religious materials to the same armed group doesn't appear the be a violation of the law. Go figure.

jmm99
06-30-2010, 08:35 PM
I do not get all the sense of what I posted.

The bottom line seems to be similar to our (US) test for political ads. If the ad is at the direction of the political candidate, or in co-operation with the political candidate, or in co-ordination with the political candidate, then the ad's cost is a campaign contribution to that canditdate. However, if the ad is independently produced (no direction, no co-operation, no co-ordination), the cost is an independent expenditure.

If I read Justice Roberts' opinion correctly, anyone can finance ads extolling the virtues of AQ and say everything that UBL says without running afoul of the "material support" statute.

If this be true:


from Rex

To give some examples of what might be illegal:

1) Providing advice to a group on how to pursue their grievances through the political process, rather than through armed violence.

2) Providing assistance to a group to support the demobilization of their current child combatants.

As you know, both of these things are currently being done by US NGOs.

those US NGOs ought to have joined HLR in the lawsuit. What was lacking in HLR's presentation, was a definitive statement of what actions they wanted to take. They said we want to do some generalized things. If things are being done, the lack of clarity in the facts would have been resolved.

Regards

Mike

M-A Lagrange
06-30-2010, 09:08 PM
Unfortunately, sometimes, french translated straight in english does not make sens.

What I was talking about are actually the NGO working with armed groups as CARE in Somalia who had/has a conflict resolution program... Working with the communities or the Shebab is sometime the same; working with FDLR and comunities is also the same...
Or others who do work very closely with armed groups in non controled areas...
Personaly I do not get the fixation on medic. Food, drinking water blocus are illegal too according to IHL. (If I well remember in GC and the Hage convention).
Religious material may do more harm than good anyway. Try to evangelise somalia people and come back to discuss it... ;)

About child soldier: several african countries just sign an agreement to bane it. And now US will stop funding it?
That does not make a lot of sense.
Or as Mike posted it it could still be funded if approved by Secretary of defense or president?
I mean, we have a DDR going on in Sudan, there will be one soon in Darfur... Places where child soldiers do not exist I presume.

jmm99
07-01-2010, 12:43 AM
M-A, you are talking about this:


§ 2339B
....
j) Exception.— No person may be prosecuted under this section in connection with the term “personnel”, “training”, or “expert advice or assistance” if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General.

This exception could be a complete zero if approval is never granted, or if onerous conditions are regularly imposed. It would be an avenue for an NGO to obtain pre-approval of its program; or, if approval were refused, to attack the decision.

We may not see much happening to NGOs, or anyone else, where "speech" is the main component of alleged "material support". In our domestic political ads, independent political action funding is the norm - proving direction, co-operation or co-ordination (esp. beyond a reasonable doubt) is not that easy.

Although Rex has stated that "criminal intent" is not required, both 2339A & B have what I would consider a "mens rea" (intent) provision:


§ 2339A. Providing material support to terrorists
.....
(a) Offense.- Whoever provides material support or resources or conceals or disguises the nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of [a large number of spelled out anti-terrorism statutes] ...

§ 2339B. Providing material support or resources to designated foreign terrorist organizations
....
(1) Unlawful conduct.- Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

I don't see a criminal intent problem here.

The problem I do see is the administrative procedure having DoS tell us who a "terrorist" organization is. That's getting into the same problems as under the "Communist Control Acts" of the Cold War. I'm old-fashioned and like to see all elements of criminal laws enacted by Congress and signed by the President. The list should be compiled by normal legislative action defining the enemy and whether military force is authorized (as in the 2001 AUMF), or not (where law enforcement would be the sole enforcement tool).

Regards

Mike

Rex Brynen
07-01-2010, 01:32 AM
Although Rex has stated that "criminal intent" is not required, both 2339A & B have what I would consider a "mens rea" (intent) provision:

...

I don't see a criminal intent problem here.

Mike:

What about this part of the opinion?


The Court cannot avoid the constitutional issues in this litigation by accepting plaintiffs’ argument that the material-support statute, when applied to speech, should be interpreted to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. That reading is inconsistent with §2339B’s text, which prohibits “knowingly” providing material support and demonstrates that Congress chose knowledge about the organization’s connection to terrorism, not specific intent to further its terrorist activities, as the necessary mental state for a violation.

Bob's World
07-01-2010, 01:42 AM
The first problem this law draws attention to is the "terrorist list" itself. We love to brand organizations as "Friends" or "Foes"; "You are either with us or you are against us": etc. Life is not that simple.

Even if we distilled this to our personal lives, most of us are fortunate to have a handful of true friends, who you can always count on in a tremendous mutually supporting relationship. Similarly we have an equally select handful of true enemies. Everyone else is in that broad middle zone. Yet when it comes to state craft, we create two huge buckets and brand and assign every organization to one bucket or the other. This is simplistic nonsense that forces all kinds of bad decsions.

Some of these "terrorist" organizations are truly evil; most are insurgent organizations seeking better conditions in countries that the US has placed in the "Friend" bucket. If the same organization existed in a country we had placed in the "Enemy" bucket they would be regarded as brave freedom fighters.

As to the holding itself, if you ask a bad question you are apt to get a bad answer. How else could the Supreme Court have ruled on this? They were put in a corner. The result now being that one line of operation for engaging with these organizations short of bloody, expensive, national credibility risking warfare, has now been taken off the table.

We owe our populace better than this.

jmm99
07-01-2010, 03:56 AM
The full text of the 6-3 opinion (as opposed to the shortened syllabus you quoted) says (pp.16-19 of pdf):


Plaintiffs claim, as a threshold matter, that we should affirm the Court of Appeals without reaching any issues of constitutional law. They contend that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. That interpretation, they say, would end the litigation because plaintiffs’ proposed activities consist of speech, but plaintiffs do not intend to further unlawful conduct by the PKK or the LTTE.

We reject plaintiffs’ interpretation of §2339B because it is inconsistent with the text of the statute. Section 2339B(a)(1) prohibits “knowingly” providing material support. It then specifically describes the type of knowledge that is required: “To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization . . ., that the organization has engaged or engages in terrorist activity . . ., or that the organization has engaged or engages in terrorism. . . .” Ibid.

Congress plainly spoke to the necessary mental state for a violation of §2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activities. Plaintiffs’ interpretation is also untenable in light of the sections immediately surrounding §2339B, both of which do refer to intent to further terrorist activity. See §2339A(a) (establishing criminal penalties for one who “provides material support or resources . . . knowing or intending that they are to be used in preparation for, or in carrying out, a violation of” statutes prohibiting violent terrorist acts); §2339C(a)(1) (setting criminal penalties for one who “unlawfully and willfully provides or collectsfunds with the intention that such funds be used, or with the knowledge that such funds are to be used, in full or in part, in order to carry out” other unlawful acts).

Congress enacted §2339A in 1994 and §2339C in 2002. See §120005(a), 108 Stat. 2022 (§2339A); §202(a), 116 Stat.724 (§2339C). Yet Congress did not import the intent language of those provisions into §2339B, either when it enacted §2339B in 1996, or when it clarified §2339B’s knowledge requirement in 2004.

Finally, plaintiffs give the game away when they argue that a specific intent requirement should apply only when the material-support statute applies to speech. There is no basis whatever in the text of §2339B to read the same provisions in that statute as requiring intent in some circumstances but not others. It is therefore clear that plaintiffs are asking us not to interpret §2339B, but to revise it. “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.” Scales v. United States, 367 U. S. 203, 211 (1961).

Scales is the case on which plaintiffs most heavily rely, but it is readily distinguishable. That case involved the Smith Act, which prohibited membership in a group advocating the violent overthrow of the government. The Court held that a person could not be convicted under the statute unless he had knowledge of the group’s illegal advocacy and a specific intent to bring about violent overthrow. Id., at 220–222, 229.

This action is different: Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing “material support” to such a group. See infra, at 20–21, 35. Nothing about Scales suggests the need for a specific intent requirement in such a case. The Court in Scales, moreover, relied on both statutory text and precedent that had interpreted closely related provisions of the Smith Act to require specific intent. 367 U. S., at 209, 221–222. Plaintiffs point to nothing similar here.

We cannot avoid the constitutional issues in this litigation through plaintiffs’ proposed interpretation of §2339B.[3]

[3] The dissent would interpret the statute along the same lines as the plaintiffs, to prohibit speech and association “only when the defendant knows or intends that those activities will assist the organization’sunlawful terrorist actions.” Post, at 17 (opinion of BREYER, J.). According to the dissent, this interpretation is “fairly possible” and adopting itwould avoid constitutional concerns. Ibid. (internal quotation marks omitted). The dissent’s interpretation of §2339B fails for essentially the same reasons as plaintiffs’. Congress explained what “knowingly” means in §2339B, and it did not choose the dissent’s interpretation of that term. In fact, the dissent proposes a mental-state requirement indistinguishable from the one Congress adopted in §§2339A and 2339C, even though Congress used markedly different language in §2339B.

The bottom line is that §2339B when enacted in 1996 focused on the donor's knowledge and intent to make the donation (whether tangible or speech) to a terrorist organization. The donor's knowledge and intent as to the donation's end use was deemed immaterial. When Congress enacted §2339A in 1994 and §2339C in 2002, it felt that the donor's knowledge and intent as to the donation's end use was material. When §2339B was redone in 2004, the end use intent was again deemed immaterial.

I knowingly give funds to AQ, but with my specific intent they be used to feed AQ widows and orphans. Instead, the funds are used to buy IED materials to blow you up - or they use it for widows and orphans.

I knowingly provide info of your location to AQ, but with my specific intent it be used for them to attempt to convert you. Instead, they use the info to blow you up - or they use it to simply talk to you.

Under §2339B, I'd be guilty in both examples under both alternatives - even though in 2 out of 4 cases, no one is hurt.

Congress had the perogative to select the level at which criminal knowledge and intent must be present. One could argue to Congress that §2339B front end intent should apply to the §2339A and §2339C situations as well - or vice versa. But that goes to the wisdom and consistency of the legislation - not its constitutionality.

Regards

Mike

Rex Brynen
07-01-2010, 04:14 AM
I knowingly give funds to AQ, but with my specific intent they be used to feed AQ widows and orphans. Instead, the funds are used to buy IED materials to blow you up - or they use it for widows and orphans.

I knowingly provide info of your location to AQ, but with my specific intent it be used for them to attempt to convert you. Instead, they use the info to blow you up - or they use it to simply talk to you.

Yes, but this doesn't cover the cases that NGOs are concerned about.

Rather, imagine that I give training in human rights and democratic politics to members of a designated terrorist group for the sole and exclusive purpose of facilitating its transition away from terrorism and entering legal politics.

Is this illegal? My reading of the court's understanding of "material assistance" is that, yes it is.

Similarly, if I provide remedial eduction to forcibly-recruited 13 year olds as part of an designated group's demobilization and release of child soldiers (and yes, there are NGOs that quietly do this), am I committing a crime?

Again, my reading of the court decision is that yes, I am--even if there is no suggestion that anything I did facilitated terrorism in any way.

Dayuhan
07-01-2010, 05:17 AM
Some of these "terrorist" organizations are truly evil; most are insurgent organizations seeking better conditions in countries that the US has placed in the "Friend" bucket. If the same organization existed in a country we had placed in the "Enemy" bucket they would be regarded as brave freedom fighters.

One way to manage this might be to change the law on dealings with designated terrorist organizations. Another, likely easier, would be to review the list of designated terrorist organizations and trim out those that are more insurgent than terrorist. On my own turf, I'd have to say that while I've no great affection for the New People's Army, the "terrorist" designation has no real basis.

I do think, though, that the assumption that insurgents are necessarily "seeking better conditions" is as naive as the assumption that insurgents are by definition bad people seeking bad things. Most of them are simply seeking power. They may try to ride on popular grievances but in most cases they've little real desire to resolve those grievances. They want power, and once they have it they generally use it in much the same ways their predecessors did.

Bob's World
07-01-2010, 05:56 AM
One way to manage this might be to change the law on dealings with designated terrorist organizations. Another, likely easier, would be to review the list of designated terrorist organizations and trim out those that are more insurgent than terrorist. On my own turf, I'd have to say that while I've no great affection for the New People's Army, the "terrorist" designation has no real basis.

I do think, though, that the assumption that insurgents are necessarily "seeking better conditions" is as naive as the assumption that insurgents are by definition bad people seeking bad things. Most of them are simply seeking power. They may try to ride on popular grievances but in most cases they've little real desire to resolve those grievances. They want power, and once they have it they generally use it in much the same ways their predecessors did.

Many countries have such a revolving door. Poor Governance exists, the only route open to change is through Coup or insurgency, so it gains popular support; then once the new guy is in, he merely picks up where the old left off.

This is why I recognize the COIN genius of Madison. There were many of our beloved founding fathers who would have quickly picked up where British Governance had left off. Creating a Constitution and specifically a Bill of Rights to foil any such attempts was brilliant pre-emptive COIN. If you want to learn COIN, study Insurgents first, then read what the COIN SMEs have to say.

Our founding fathers were both, Insurgents first, sage COINdinistas second.

M-A Lagrange
07-01-2010, 01:01 PM
As Rex, I see many application problems.
Let say an NGO funded by USAID is delivering agriculture input: nitrate azotes for example. The same NGO delivers watsan pump spar parts like tubes and chlorine.
This is part of a conflict resolution process to bring some community leaders and members to peace talk table because they are supporting an armed grp called terrorist for example in Indonesia.
The problems I see is that all material delivered can but do not have to be use for explosive fabrication.
The NGO workers are aware that part of their team is close to the "terrorist" group or at least has sympathies for the group… Otherwise they would be unable to reach that community and initiate a complex of bargain based on aid against participation to peace talk.

The donor (the US gov) is clean because he funded an NGO on the base of agriculture and watsan + Human Rights training/conflict resolution; knowing completely that the aim of agriculture and watsan is to facilitate an informal peace dialogue conducted by NGO.

Now what about the NGO expat program manager? He is in full knowledge that he is engage in a dialog with a terrorist group: it is the aim of the project. He has full knowledge of the material being delivered.
One of the direct effect can be to increase the distance between international NGO and local Ngo so the expat staff from international Ngo will be in position to say: I funded a local NGO not knowing who and what they are doing. And this definitively open more doors than provides security.

slapout9
07-01-2010, 01:49 PM
Our founding fathers were both, Insurgents first, sage COINdinistas second.

Good point. They were the first "Green Berets";)

jmm99
07-01-2010, 04:59 PM
For both Rex and M-A, you have posited examples where, by the definitions and assumptions you put, no conceivable harm can come to anyone if your NGOs do exactly whatever you say they will do exclusively.

Why should Congress believe you ? In most every terr funding or support case that's been tried, at least one organization among the conspirators has claimed a lawful purpose as their exclusive reason for being. A standard line in "lawfare" is that we (NGO or political wing) are not one of the bad guys; we are trying to put XYZ group on the right path, but they have this radical fringe that we can't control, etc.

How is Congress supposed to separate the sheep from the goats ? The answer is that it can't by any objective mechanism that would not itself fail because it would be "void for vagueness". So, Congress elected to draw a bright line that will include some non-harmful conduct within the criminal definition. In doing so, it was probably relying to some extent on prosecutorial discretion in not prosecuting cases were the risk of harm is not evident.

In any event, what you are arguing is that Congress passed a law that covers some cases that you feel should not be covered. That doesn't make the law unconstitutional and it is not the job of SCOTUS to amend statutes (although the minority were quite willing to do that).

Your remedy (beyond trying the exception via DoS and DoJ approval) is to draft amendatory legislation and attempt to get it passed by Congress.

--------------------
Agreement with Bob and Steve that a better way of handling "terrorist" lists must be used. Mine is requiring a separate legislative act for each group (similar to an AUMF); and that the authorization be sunset after a set time and would have to be renewed.

Regards

Mike

M-A Lagrange
07-22-2010, 07:56 PM
Mike,

Is that part of the lawfare you described in a previous threat? What worries me in such approach is that it comes close to law approach that claims that law (and its respect) is only restricted to good citizens. While criminals and even more terrorist should not be protected by the law (I resume in a polemic way, I know).

M-A

jmm99
07-23-2010, 12:35 AM
As to this:


from MAL
Is that part of the lawfare you described in a previous threat?

What "that" are you referring to ?

As to this,


from MAL
What worries me in such approach is that it comes close to law approach that claims that law (and its respect) is only restricted to good citizens. While criminals and even more terrorist should not be protected by the law (I resume in a polemic way, I know).

I'd suggest that you have to look at whether the law is substantive (focus on right or wrong, virtue or sin, etc.) or procedural (the process to be followed).

Substantive law (unless the society is insane or suicidal) sanctions only the conduct of its "good citizens" and proscribes the conduct of its "bad citizens" - it discriminates against "bad citizens" and justly so.

Procedural law should not discriminate on whether the citizen is "good" or "bad" - all citizens should receive the same process (which may be different for aliens, legal and illegal, for example).

Regards

Mike

M-A Lagrange
07-23-2010, 03:02 AM
you started a threat on lawfare in law enforcement section.
The description given by Slap was:Lawfare describes a method of warfare where law is used as a means of realizing a military objective.

Secondly, there is actually a "law school" or "law approach" for its application that is being developed in Germany that is based on a descrimination between citizen and criminal and non citizen.
I am actually travelling so it's difficult for me to give you links but I am refering to a book from Didier Bigo: au nom du 11 septembre (in the name of 9/11) and to several articles published on the subject in the review culture et conflit (culture and conflicts). Many articles are in english.
The exemple given by a german lawyer in the book was the use of "torture" by the police to track a sexual criminal. The reason given were exactly the one given by the French during Algeria war: lake of time, need of information, a sexual criminal is no more part of the community of human...

So I was wondering if that re enforcement of the patriot act was based on:
1) the idea to use law to realise military objective (that seems obvious but...)
2) this could be used as a jurice prudence to introduce such notions as a distinction between citizen and non citizen or a los of basic rights for individuals being "involved" in terrorist or considered as terrorist support.

I do not doubt of you Mike,but I am and keep on being worried by the impact of misuse, at home, of COIN on civil legal system. Especially as I mentioned previously as the label terrorist or insurgent did open doors to legal dark rooms in the past, specially in Europe.

jmm99
07-23-2010, 09:02 PM
You are pointing me, perhaps, to Challenge: Liberty & Security (http://www.libertysecurity.org/index.html), which includes M. Bigo et al (http://www.libertysecurity.org/rubrique26.html).

E.g., among his works cited, Terror, Insecurity and Liberty - Illiberal Practices of Liberal Regimes after 9/11 (http://www.libertysecurity.org/IMG/pdf_Bigo_Tsoukala2.pdf).


This edited volume questions the widespread resort to illiberal security practices by contemporary liberal regimes since 9/11, and argues that counter-terrorism is embedded into the very logic of the fields of politics and security.

Although recent debate surrounding civil rights and liberties in post-9/11 Europe has focused on the forms, provisions and legal consequences of security-led policies, this volume takes an inter-disciplinary approach to explore how these policies have come to generate illiberal practices. The book argues that policies implemented in the name of protection and national security have had a strong effect on civil liberties, human rights and social cohesion - in particular, but not only, since 9/11. The book undertakes detailed sociological enquiries concerning security agencies, and analyses public discourses on the definition of the terrorist threat. In doing so, it aims to show that the current reframing of civil rights and liberties is in part a result of the very functioning of both the political and the security fields, in that it is embedded in a broad array of domestic and transnational political, administrative and bureaucratic stakes.

Another example article by other authors (from index page), Analysis of terrorist legislation, evolution and practices of penal agencies (http://www.libertysecurity.org/article2500.html) (pdf (http://www.libertysecurity.org/IMG/pdf_03_Terrorist_legislation2.pdf)):

[JMM note on context: ETA and Spanish anti-terr laws and policies; from conclusion of article]


In order to underline the production of particular antiterrorist laws and how the antiterrorist philosophy has provoked consecutively reforms on ordinary criminal laws, we have dedicated Part 2 of the present Deliverable to it. Therefore, we have tried to prove how a number of the Criminal Code reforms, procedural rules, police and prison regulations have been modified in Spain by following that particular philosophy, i. e. how new indictable offences, penalties worsening, more police power and penitentiary restrictions have been introduced after September 11th and much more later on March 11th.

In Part 3, we have described and analyzed in two different items how penal, police and prison Spanish agencies became hard in its activities and what kind of consequences have produced the already embedded antiterrorist philosophy at the level of democratic political order. Within the first item we have tried here to develop, how criminal justice agencies have played a major role on more severe violations of human rights than before the harshness of the whole system. And, on respect to the second item we have stressed some situations regarding how freedom of expression and political dissent have been reduced or directly not allowed by closing newspapers or outlawing political parties.

See particularly, 3.2. Consequences for Democracy and for the Rule of Law; and its subsections, 3.2.1. Illegalization of a Political Party (restriction of political pluralism), 3.2.2. Criminalization of Social Movements (reduction of political dissidents), 3.2.3 Closing newspapers (reduction of liberty of expression).

Am I in the right church ? Or should I continue to blame the Dominicans, link (http://en.wikipedia.org/wiki/Spanish_Inquisition#The_start_of_the_Inquisition) and link (http://en.wikipedia.org/wiki/Tom%C3%A1s_de_Torquemada). ;)

Regards

Mike

M-A Lagrange
07-26-2010, 07:34 AM
Mike,

Yes, you are in the right Church, the books you mentioned are the ones. (Sorry I did not have time for research and I used the french title).

I believe what he, and some others, are saying in those books are quite interresting as they try to analyse the impact of COIN on civilian governance at home.
And what they describe can be sometime scary.

M-A