A Case of Supreme Sidestepping

by Andrew Kessinger on June 24, 2010

Supreme Sidestepping of Terrorist Engagement

The Supreme Court’s much-awaited decision to define the limits of American engagement with foreign terrorist-designated groups is, like much of our policy toward our enemies, shortsighted.

The case in question, Holder vs. Humanitarian Law Project (HLP), centers on the interpretation of providing “material support” – traditionally understood as funds, arms and travel – to groups listed by the State Department as foreign terrorist organizations (FTOs).

The Court’s ruling, however, criminalizes any attempt by human rights advocates to provide advice aimed at helping terrorists to settle their disputes peacefully and within the framework of international law and order. Otherwise put, our government has decided to punish any American citizen who seeks to help a foreign group resolve its grievances using legitimate and nonviolent means rather than force.

Such counterproductive logic reflects an even greater problem facing U.S. foreign policy: the knee-jerk aversion to engage, apart from lethal military force, with those who wish to do us harm.

This ruling discourages non-governmental organizations (NGOs) from confronting national security challenges, and it curtails the right to free speech enshrined in the First Amendment of the Constitution. Most importantly, however, the HLP case is a bold reminder of our government’s ongoing inability to constructively engage with non-state terrorist-designated actors.

Even the State Department, tasked with finding diplomatic ways to solve our nation’s conflicts, does not fully use the tools at its disposal. The FTO designation process itself functions more as a mechanism to block resources for terrorist activities and allow for the eventual prosecution of terrorists with the Justice Department. Like the Supreme Court ruling, however, these activities do little to steer our enemies away from violence and terrorism itself. Granted, freezing a group’s assets and sentencing its leaders does send a strong message that acts of terrorism will be punished. But if little to nothing is done to provide our enemies with an alternative to resolving their political grievances, such measures simply postpone future outbreaks of violence.

Instead, the pressures resulting from terrorist designation should be leveraged to encourage our enemies to come to the negotiating table: the reward of international acceptance and the removal of sanctions should incentivize a change in behavior. Success should therefore be defined as a normalization of relations with our enemies and not as a permanent isolation from them. Consequently, any outreach that facilitates a group’s shift toward adherence to international norms and the non-violent resolution of conflict – as was the case with the Humanitarian Law Project – should be thus encouraged, not punished.

Chief Justice Roberts, in stating the majority opinion, warned that working with FTOs will surely “legitimize and further their terrorist means.” What he and other policymakers ignore however is that, more often than not, many FTOs (Hamas, Hezbollah) already control territory and command popular support regardless of our recognition. In certain areas of Iraq, Afghanistan, Gaza, and Lebanon, groups have secured legitimacy by maintaining a monopoly on violence and by providing services where the state government is unable or failing miserably to do so. For these quasi-state actors, little to no extra legitimacy is gained in the eyes of their constituents when the United States opens the channels of engagement. A word of caution: groups like al Qaeda, with no international legitimacy or popular support and violent, apocalyptic aims, offer no potential for dialogue.

Beneath the surface of the HLP ruling is an all-too-pervasive trend of self-defeating pessimism, namely that diplomacy is useless because our enemies cannot and will not change. Or that an enemy’s overtures toward peace should be automatically mistrusted and rejected. “It is wholly foreseeable,” the Court found, “that directly training [a FTO] on how to use international law to resolve disputes would provide that group with information and techniques that it could use as part of a broader strategy to promote terrorism, and to threaten, manipulate, and disrupt.” Citing Congress’ own FTO legislation in 1996, the Court further upholds the view that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” (italics added)

Thankfully, not everyone on the Court sees the world in black and white. Justice Breyer, in pronouncing the dissenting opinion, asked how one could reasonably justify a ruling

that would deny First Amendment protection to the peaceful teaching of international human rights law on the grounds that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try? What might be said of these claims by those who live, as we do, in a Nation committed to the resolution of disputes through “deliberative forces”?

Justice Breyer went on to note that:

All the activities [on trial] involve the communication and advocacy of political ideas and lawful means of achieving political ends … precisely how does application of the [“material support”] statute to the activities before us help achieve that important security-related end?

The HLP decision errs by assuming the worst (that our enemies will always stay our enemies) and curtailing the best (that perhaps we can convince them to change). Such a mindset locks our foreign relations into an over-simplified, zero-sum game of good vs. evil.

Our enemies can change their behavior; terrorism is, after all, better understood as a means to an end rather than an end in of itself. Shifts in behavior will not happen overnight; neither will they occur by simply ignoring or marginalizing groups through no-contact policies.

While the U.S. government has experience using a variety of military options to kill and deter terrorist-designated non-state actors, greater emphasis should be placed on changing their behavior through the use of non-lethal policies of engagement. Both President Obama and Secretary of State Clinton have recently acknowledged as much: “You don’t make peace with your friends…you have to be able to [both talk and] engage with your enemies.” Now that the Supreme Court has outlawed NGOs from “mak[ing] principled distinctions between activities that will further terrorist conduct and those that will not,” ruling that the task instead belongs “uniquely” to Congress and the State Department, it is imperative our government to pick up where HLP left off.

Image by Foxhall Gallery.

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