Holder v. Humanitarian Law Project: ICAR Joins the Carter Center in Opposing Use of the Homeland Security Act to Criminalize Conflict Resolution Activities

In June of this year, the Obama administration teamed up with the conservative majority of the U.S. Supreme Court to deliver a serious blow to efforts by organizations like ICAR to train groups denominated “terrorist” to use the methods of peaceful advocacy and conflict resolution rather than resorting to violence.

The case, called Holder v. Humanitarian Law Project, grew out of activities by several organizations to assist members of the Kurdish PKK and the Sri Lankan LTTE to learn and use the methods of dispute resolution, international law, and public advocacy. Both groups are listed as terrorist organizations by the Secretary of State, along with Hezbollah, Hamas, al Shabaab, and several dozen others. The issue was whether a section of the Homeland Security Act making it illegal to provide “material support” to such groups in the form of “training, expert advice, personnel, and services” was an unconstitutionally vague and improper limitation on the peace advocates’ freedom of speech and association, or whether it was a justifiable exercise of Congress’s power to pursue the “war on terrorism.”

Arguing for the government, Solicitor General (now Supreme Court Justice) Elena Kagan argued that Congress had the right to declare any sort of aid to terrorist organizations illegal. “Hezbollah builds bombs,” she stated. “Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs.”

Five members of the Court agreed, with Chief Justice Roberts authoring the majority opinion. The most important ground of decision, said Roberts, was the deference due to Congress’s judgment in matters concerning national security. (This judgment counts for very little, in the view of the same majority, where Congress’s power to regulate business or to restrain campaign financing is concerned.)

Associate Justice Stephen Breyer read his dissenting opinion from the bench – an unusual gesture indicating strong disagreement with the majority. He argued that while the government could lawfully prohibit many types of assistance – for example, financial aid – on the ground that such help could free up other resources for violence, it could not prevent human rights or peace organizations from teaching groups labeled terrorist human rights law or showing them how to petition the United Nations. There must be some relationship between the prohibited aid and terrorist activity to justify this use of the government’s power to criminalize otherwise legal behavior.

Breyer also jumped on a key argument made by Kagan and accepted by the majority – perhaps, in a deeply political sense, the most important point of all – that training in nonviolent processes might legitimize terrorist organizations. The government wants to make certain organizations “radioactive,” as a former Justice Department official said, and thus to make any contact with them taboo. (One recalls the South African apartheid regime’s attempts to ban contacts of any kind with the African National Congress.)

Breyer’s response was crisp and to the point. Clearly, the law does not, and could not constitutionally, make it illegal per se to join an organization on the Secretary of State’s list or to advocate its cause nonviolently. The “legitimacy” justification, said the justice, “cannot by itself warrant suppression of political speech, advocacy, and association.” If so, how could it possibly justify criminalizing training the members of such groups to use peaceful methods of advocacy and dispute resolution?

ICAR, represented by director Andrea Bartoli, joined the Carter Center, Human Rights Watch, the International Crisis Group, the Kroc Institute at Notre Dame, and other peace organizations in filing an amicus curiae brief arguing that the law, as interpreted by the government, would interfere with its conflict resolution work. The adverse decision provoked Jimmy Carter to remark that the statute, whose violation carries a fifteen year prison term, “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.” David Cole, who argued the case for the plaintiffs, put it even more strongly. “The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists,” he stated.

The question is what comes next. Some of those who filed amicus briefs have already said that we must now call on President Obama and Congress to amend the law to exempt the work of humanitarians and conflict resolvers from its ambit. Is this a viable strategy when dealing with an administration that has outdone the George W. Bush administration in restricting individual liberties in order to fight the “war on terrorism”? Perhaps it is worth the effort, if for no other reason than to seize the opportunity to explain that conflict resolution, properly understood and practiced, is a practical alternative to violent methods of dealing with violent activists. To put it simply, the official methods of combating terrorism don’t work. Ours have a better chance of reducing the appeal of violence to aggrieved peoples around the world.

Clearly, this is not a principle yet accepted by the leaders of either political party, although there are members of Congress who would give us the opportunity to present our views on the Hill if we pursued that option. Tying such presentations to the Humanitarian Law Project Case would establish their relevance, and might induce other members of the peace and conflict studies community to join us as presenters.

A further question, of course, is whether conflict resolution professionals should obey the law as interpreted in Holder v. Humanitarian Law Project or disobey it on the ground that laws contrary to peace are immoral and non-binding on conscientious citizens. If one has the chance to facilitate a workshop involving members of a group officially designated “terrorist,” should she refuse to do so on the ground that five members of the Supreme Court have spoken on the issue? We know how Henry David Thoreau would have answered the question. (Pardon the sexist language of 1849.) “I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right.” But each of us will have to answer it for herself.