"Who's A Terrorist" by John Feffer

"Who's A Terrorist?"
John Feffer is the author most recently of North Korea, South Korea: U.S. Policy at a Time of Crisis.
Tom Paine

People in the business of conflict resolution routinely intervene in bloody, horrific wars and, by talking to all sides involved, try to guide the actors toward a more peaceful conclusion. Sounds like noble work, right? Not always, according to the USA PATRIOT Act. It all depends on whether the peace professionals are talking with terrorists, and "terrorism" is very much in the eye of the (U.S.) beholder.

The PATRIOT Act—a sweeping assault on civil liberties approved just after September 11 by every U.S. Senator except Russ Feingold, D-Wis.—includes a provision that criminalizes "expert advice and assistance" provided to terrorist organizations. As a result, anyone who provides advice on how to exit violent conflict to any of the 36 organizations on the State Department’s terrorism list could be liable for criminal prosecution. So, for instance, the World Tamil Coordinating Committee of Jamaica, New York, is potentially breaking the law by trying to help negotiate a permanent peace agreement between the Sri Lankan government and the opposition Tamil Tigers.

The provision applies beyond conflict resolution. The Federation of Tamil Sangams of North American (FETNA) wants to develop Tamil-language school curricula in areas of Sri Lanka controlled by the Tamil Tigers. The Humanitarian Law Project in California has provided training in international human rights law for members of the Kurdistan Workers’ Party or PKK. Since the PKK and the Tamil Tigers have been on the State Department’s terrorism list since 1997, these efforts might well lead to a 15-year jail sentence.

The PATRIOT Act Takes A Hit

Rather than wait to be prosecuted, the above organizations brought suit against the Justice Department. On January 23, the California District Court partially upheld their challenge in Humanitarian Law Project v. John Ashcroft. By declaring the “expert advice and assistance” clause overly broad and infringing on First Amendment rights of free speech, the court struck the first successful legal blow against the PATRIOT Act. "We are harmed as a society when people refrain from exercising their First Amendment rights out of fear of being prosecuted and convicted under vague laws like the PATRIOT Act provision under challenge in the Humanitarian Law Project suit," says Nancy Chang, an attorney at the Center for Constitutional Rights (CCR) who was co-counsel in the case. Jeanne Herrick-Stare, a senior analyst on civil liberties at the Friends Committee on National Legislation, points out that it is difficult to know how many groups have cut back on their activities for fear of prosecution.

Humanitarian organizations often don’t care what agency, on paper, they’re dealing with, she notes, because “humanitarian organizations care about the hungry, the people who need the aid.”

For the Center for Constitutional Rights (CCR), it’s legal déjà vu. The Center mounted a legal challenge to the PATRIOT Act’s precursor, the 1996 Anti-Terrorism and Effective Death Penalty Act. A Clinton administration law, it criminalized “material support” of terrorist organizations even if that support was for the peaceful activities of the organization. In this case, the Ninth Circuit Court of Appeals ruled that while the U.S. government could sue those providing cash and humanitarian aid to the designated terrorist groups, the provision of “personnel” and “training” was protected by the First Amendment. According to the CCR’s useful summary of court rulings on terrorism and civil liberties, the material support provision has been used in three jury convictions and several cases decided in plea bargaining. But until 2001, conflict resolution professionals could go about their business without fear of reprisal. The PATRIOT Act, which amended the “material support” provision to include “expert advice and assistance,” appeared to re-criminalize the negotiating, legal and medical services that some U.S.-based organizations are offering “terrorist” organizations.

In The Eye Of The Beholder

The term “terrorist” is controversial, as is the list of terrorist organizations that the State Department updates regularly. The ANC in South Africa, Likud in Israel, Sinn Fein in Ireland: these groups have all grown out of movements that were and sometimes still are called terrorist. The U.S. government has in the past supported groups that could easily be labeled terrorist, from the Contras in Nicaragua to RENAMO in Mozambique. Today, the State Department’s terrorism list is highly politicized. The East Turkestan Islamic Movement is included, largely as a thank-you to China for its support in the war on terrorism. The Kosovo Liberation Army never made it on the list because it was fighting against Serbia. Despite attacks against civilians, the Northern Alliance in Afghanistan has not been considered terrorist in Washington because it was useful in the fight against the Taliban just as Osama bin Laden and the mujahedin had been in the fight against the Soviets.

The PATRIOT Act not only reinforces this politicized designation but also discourages efforts to bring such groups into the political realm. The State Department’s labeling of two Philippine rebel groups as terrorist, for example, has led to an impasse in peace talks in that country’s 35-year-old civil war. The Cheney faction in the Bush administration believes that “evil” must be defeated, not negotiated with. But negotiating with those you disagree with is otherwise known as diplomacy. And encouraging negotiations between implacable foes, regardless of the names they throw at each other, goes by the name of conflict resolution.

“We make a deliberate decision to work with both sides, regardless of whether they are called ‘terrorist’ or something else,” says Richard Rubenstein, professor of conflict resolution and public affairs at George Mason University. “If you’re not willing to work with ‘terrorists’ you’re not going to do conflict resolution.”

Conflict resolution professionals often act as neutral mediators, but sometimes they provide assistance and advice to groups to prepare them for negotiations. Ron Kraybill, who teaches in the conflict transformation program at Eastern Mennonite University, notes that “terrorists” don’t abruptly make a decision to engage in a negotiating framework: “they don’t walk in the door all by themselves; it’s a process.”

Portions of the PATRIOT Act are up for review by Congress, but the “expert advice and assistance” provision is not subject to the sunset clause. The Bush administration has meanwhile promised to veto legislation designed to scale back the worst excesses of the Act. So the courts, for better or worse, are where the action is. If the Justice Department successfully challenges the California District Court decision, conflict resolution as well as medical aid and legal advice may once again become treasonous. In the meantime, the January 23 ruling remains a slender victory not only for civil libertarians but for all those who hope to bring peace to war-torn regions.

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