Earlier this week, the Supreme Court heard arguments for the Holder versus Humanitarian Law Project case. You can read the arguments here. The case concerns Ralph Fertig, who wants to help the PKK use non-violent means to achieve its objectives. However, since the U.S. dubs the PKK a terrorist organization, Fertig finds that his endeavor is illegal.
“Under the definition of this statute,” said Justice Sotomayor, “teaching these members to play the harmonica would be unlawful.” To which Justice Scalia responded, “Well, Hamid Hatah and his harmonica quartet might tour the country and make a lot of money. Right?” And therein lies the core debate. Under current U.S. law there is no legal way to aid terrorist organizations, even if the aid is intended to convince the terrorist organizations to not be terrorist organizations anymore, because what if that aid somehow winds up helping them continue to be terrorist organizations? As General Elena Kagan argued to the Supreme Court, “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.” Here’s another exchange between Kagan and Justice Kennedy that traverses the same turf:
JUSTICE KENNEDY: But Justice Ginsburg’s question is can you advocate peaceful means — and let’s assume that if they embrace peaceful means, they get more interest in their organization, the organization becomes stronger for all purposes. Can you do that, that was Justice Ginsburg’s question.
GENERAL KAGAN: Can you say to an organization, look, you guys really should lay down your arms.
JUSTICE KENNEDY: And here’s how to do it. And here’s how to go to the U.N., and here’s how to apply for aid and here’s how to file an amicus brief.
GENERAL KAGAN: Well, now you can’t. Because when you tell people, here’s how to apply for aid and here’s how to represent yourself within international organizations or within the U.S. Congress, you’ve given them an extremely valuable skill that they can use for all kinds of purposes, legal or illegal.
Kimberly Curtis of the FPA Human Rights blog argued thoughtfully against Kagan’s view earlier this week:
If it is the methods of terrorism that we are so against, than efforts to get terrorist organizations to disarm and pursue their agendas politically should be encouraged. If the pen is to be mightier than the sword, then we must preserve a place for people to talk. Failing to do so only isolates terrorist organizations and encourages the violent acts we abhor, and in that situation, no one stands to win. But with the ability to communicate, consult, and advocate for other means, it is possible that who we now deem as terrorist organizations can find peaceful ways to achieve what they currently seek with violence.
It would be interesting if we thought about things that could reduce terrorism and then actually did those things. Instead, current U.S. law prevents facilitating the transformation of terrorist organizations to non-terrorist organizations. A terrorist organization must first cease terrorist activities and then be removed from the list by the State Department in order to receive aid of the type Fertig hopes to provide. The policy is conceptually similar to international sanctions, and it will probably prove to be just as effective.
