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What is “material support” for terrorism?

An editorial in Saturday’s Los Angeles Times notes:

When most Americans hear that it’s illegal to supply “material support” to foreign terrorist groups, they probably assume that the prohibition involves financial or technical support — sending money to pay for hijackers’ air fares or providing wiring for a bomb (or advice about how to use it).

In fact, the law also seems to prohibit residents of this country from trying to talk political movements out of terrorism or counseling them on how to bring their grievances before international bodies. On Tuesday, the Supreme Court will be asked to invalidate those sections of the law. It can and should do so without undermining the primary purpose of the law.

At issue in the case is language in the law, which was revised in 2004, that makes it a crime to aid a group on the secretary of State’s list of terrorist organizations. It’s not only illegal to furnish such groups with money and tangible assets like explosives and communications technology but also with “expert advice” — defined as “advice or assistance derived from scientific, technical or other specialized knowledge.” The law also forbids supplying terrorist groups with “personnel” — defined as persons working under the group’s “organization, direction or control” to further its policies.

These provisions may seem reasonable, but they extend beyond the common-sense definition of “material support” for terrorism. For example, USC professor Ralph Fertig, a Kurdish rights activist who is challenging the law, wants to counsel a Kurdish nationalist organization in Turkey — a group that undoubtedly has engaged in acts of terrorism — to abandon violence and take its political grievances to the United Nations. He argues that the law’s reference to “expert advice” bars him from engaging in such speech.

Another problem with the law is that it could make it a crime for U.S. supporters of a cause to help groups that have engaged in terrorism to explain themselves. Would an intermediary who worked with a Hamas official to publish an Op-Ed article about the Israeli-Palestinian conflict be subject to imprisonment? Those challenging the law argue that its language is vague enough to cover such a possibility, yet that hardly seems a case of giving material support to terrorism.

The Obama administration, defending the law, scoffs at the notion that its provisions are unconstitutionally vague or overly broad. And it notes that the law only applies when U.S. residents have direct contacts with terrorist groups; it does not limit a citizen’s right to speak or write on their own in support of such groups (or to counsel them in print to forswear violence).

The government also makes a more general case: that preventing even benign contact and conversation with foreign groups that engage in terrorism isolates them — or, as a Justice Department lawyer put it: “Congress wants these organizations to be radioactive.” The assumption is that a group so stigmatized and starved of resources will have an incentive to abandon terrorism. But anyone who has followed the legitimization of the Palestine Liberation Organization or Sinn Fein, the political wing of the Irish Republican Army, knows that such movements can be open to persuasion even as some of their adherents are engaging in violence.

The point was well put in a brief filed by the Carter Center and other groups that seek to resolve international conflicts. They noted that “peacemaking, conflict resolution, human rights advocacy and the provision of aid to needy civilians sometimes requires direct engagement with groups and individuals that resort to or support violence, including some that are, or have been, designated” foreign terrorist organizations.

Lawyers challenging these provisions offer the court a simple way to resolve this case. It should interpret the law to require “proof of intent to further the designated organization’s illegal activities.” That way the court can protect the 1st Amendment without undermining the war against terrorism.

It will be interesting to see what the Court will do.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.