Protecting Speech, Preserving Charity

The American Constitution Society)  The U.S. Supreme Court recently heard argument in Humanitarian Law Project v. Holder. The plaintiffs, a human rights organization and a retired federal judge, sought to teach international human rights law and provide training on nonviolent conflict resolution to the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam. Both organizations are designated as terrorist by the U.S. government.

Oral argument focused on whether such training and advocacy aimed at promoting peace constitutes pure speech protected by the First Amendment, thereby shielding plaintiffs from prosecution under laws that prohibit material support for terrorism. But rather than delve into the complex constitutional questions presented, the Court should follow the established doctrine of constitutional avoidance by interpreting the challenged provisions to require a showing of intent to further illegal activities. The avoidance doctrine dictates that if a case can be resolved on an alternative basis, the court should refrain from ruling on constitutional issues.

In the 1960s, at the height of the Cold War, the Supreme Court held in Scales v. United States that laws criminalizing membership in the Communist Party must be interpreted to require a specific intent to further the group’s illegal aims. Mere knowledge that a group advocated violence was insufficient to justify infringing on cherished First Amendment associational rights. Consistent with that principle, in 2004 Congress amended the law prohibiting material support to terrorism to require that “[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.”

In addition to complying with legal precedent and congressional intent, requiring prosecutors to establish proof of a defendant’s specific intent to further illegal ends would rectify several unfortunate policy effects.

Existing law unduly criminalizes the fundamental American tradition of charity. As a result, many American charities have refrained from providing humanitarian aid in conflict zones where aid is most needed. If a potential aid recipient is designated as a foreign terrorist organization, the charity faces the untenable choice of watching orphans and widows starve-or feeding them at the risk of facing criminal prosecution and up to fifteen years in prison.

Imagine the devastating outcome had this been the case in Haiti after the catastrophic earthquake that killed over 300,000 people, injured another 300,000, and orphaned tens of thousands of children. If a foreign terrorist organization had been in control of a portion of Haitian territory, the people with the misfortune of living there would have been denied the aid of America’s remarkable doctors, first responders, and other courageous volunteers. Helpless survivors in orphanages with even the most remote affiliation with a designated organization would have been arbitrarily deprived of needed assistance from generous Americans ready and eager to help. Such an outcome is not only unjust and inhumane, but also contrary to multiple U.S. foreign policy interests.

For example, criminalizing charity undermines the administration’s declared commitment to improving America’s image abroad through meaningful engagement. President Obama announced the promotion of peace and security as a pillar of his administration’s foreign policy. What better way to promote these tenets than by allowing charity towards those less fortunate? America’s leadership in the Haitian relief efforts, as demonstrated by the multitude of American charitable organizations on the ground assisting in reconstruction, showed the world by example that Americans are a generous people.

Accordingly, we should build on this goodwill in other areas of the world where America suffers a reputational deficit. Allowing charities to provide humanitarian aid to individuals trapped in conflict zones in the Middle East and Central Asia, for example, would go a long way towards countering negative perceptions of America. While independent charities do not represent the U.S. government, and rightly so, permitting American organizations to provide much needed humanitarian aid improves the perception of our nation within the region.

But without assurances that their well-intentioned aid will not become the basis of prosecutions for material support to terrorism, American charities will continue to decline opportunities to help. In light of the multiple closures, asset freezings, and prosecutions of American charities engaged in humanitarian aid abroad, such fears are well-founded. Indeed, a broad coalition of charities, grantmakers, faith-based and advocacy groups have responded by seeking the elimination of counterproductive barriers to legitimate charitable work caused by counterterrorism laws. In a joint letter to President Obama, twenty American Muslim charities highlighted that “helping the least among us is a shared American value” and urged him to follow through on his commitment to ease hurdles to charitable giving.

Finally, requiring a showing of specific intent to support illegal acts prevents squandering limited prosecutorial resources on pro-peace charities such as the Humanitarian Law Project. Accepting the fact that there are finite resources our government can allocate towards combating terrorism, it must act responsibly in how it exercises its prosecutorial discretion. Prosecuting American charities that intend to support peace wastes precious resources, thereby compromising our ability to prosecute those plotting to promote violence.

By requiring proof of specific intent to support violence, the U.S Supreme Court would preserve our cherished values of free speech and charitable giving, while focusing anti-terrorism efforts on illicit activity.

Sahar Aziz is a Fellow at ISPU and an associate professor at Texas A&M University School of Law, where she teaches national security and Middle East law. She is also a member of the Egyptian American Rule of Law Association.

This article was published by ACSblog on April 2, 2010: http://www.acslaw.org/node/15739

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