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Battleground California
A federal court uses international law to gut a crucial antiterror statute.


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Andrew C. McCarthy

It has come to this: Under new campaign-finance laws, political advocacy, advice, and assistance rendered on behalf of candidates for public office–the reason our Constitution enshrines free-speech protection in the first place–are now subject to curbs and even criminalization. Political advocacy, advice, and assistance to terrorist organizations, however, are sacrosanct.

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That is the latest salvo lobbed from the Left Coast, where federal courts continue to defang the government’s antiterror arsenal. About a month ago, I reported on Humanitarian Law Project v. United States Department of Justice, in which the Ninth Circuit U.S. Court of Appeals persisted in gutting the 1996 federal law that made it a crime (or at least tried to make it a crime) to provide material support to entities designated as “terrorist organizations” by the U.S. secretary of state. Now it’s more of the same, this time before the same lower federal court in Los Angeles that started it all. On January 26, in Humanitarian Law Project v. Ashcroft, U.S. District Judge Audrey B. Collins held that the portion of the material-support statute that prohibits contributing “expert advice or assistance” to terror groups is unconstitutional, and may not be the basis for a criminal prosecution.

As noted in the fawning coverage of reliably Ashcroft-phobic outfits such as the New York Times, the case marks the first time “a federal judge has struck down part of the sweeping antiterrorism law known as the USA Patriot Act,” that piñata which, as I’ve also previously reported, the activist Left and its media abettors have mutilated beyond recognition. Yet while the Patriot Act aspect of the ruling has predictably gotten attention, it really is just a sideshow–and an inevitable one at that, since Judge Collins was not only inclined but bound to follow the Ninth Circuit’s rationale. The truly breathtaking part of the latest case is, instead, the blatancy of the power grab by federal judges, used to wrest from the executive branch the authority to make foreign policy, and to steal from Congress the prerogative to enact laws that aim to stop terrorist activity before a September 11-type attack.

The litigants in the new case are, once again, the non-governmental organizations (NGOs) who seek to provide all manner of advice and assistance to the Kurdistan Workers Party (Partiya Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE). As the Ninth Circuit previously acknowledged, and as Judge Collins does not dispute, these organizations are brutally violent and responsible for literally thousands of deaths. Like most terrorist organizations, they also have divisions that perform purportedly separate political, social, and humanitarian functions.

It is, of course, a Pollyannish fantasy that military operations which are the sine qua non of a terror organization somehow reside in a tidy compartment distinct from the rest of its resume. For example, it would be a simple enough matter for Sinn Fein to exist separate from the IRA. But then Sinn Fein’s political “advocacy” wouldn’t be freighted with the implicit threat of IRA bombs, meaning it wouldn’t be Sinn Fein anymore, wouldn’t be a player anymore, and the IRA’s hardcore would have to find some other means of affixing the patina of diplomatic respectability to its extortions. Like the PKK and the LTTE, the Third Reich also had hospitals and communications systems and an economy to tend–they all provided valuable support to the Nazi war effort, and without them precious combat resources would necessarily have been diverted, withering the war machine’s ability to kill and terrorize.

This is the irrefutable theory behind the material-support law. Foreign terrorist organizations are whole entities, not severable mission groups. They are designated as such because they have consciously elected to engage in terrorism (even if they euphemistically label it “freedom fighting”). It is the official policy of the United States that terrorism is an evil that must be eradicated, its practitioners and enablers equally culpable. Thus, it is in our vital national interest that government agencies use the powers at their disposal to destroy terrorist networks, not just their armed operatives.

Who is a terrorist? One supposes Congress, in enacting legislation to further our national policy, could have left this up to the courts. But it is no knock on the judiciary to say this would have been folly. Litigation is episodic. It would be imprudent to withhold preventive action against a terrorist group until it happened to get itself entangled in a legal case. It would be equally foolhardy to have various judges in scores of federal districts separately developing different analytical standards on an issue of such significance. Most importantly, federal judges as a class lack the institutional expertise and access to sensitive intelligence information that the task demands. Sensibly, Congress instead committed the designation of foreign terrorist organizations (FTOs) to the branch of the government charged with conducting foreign policy and possessed of the needed expertise and resources: the president, acting through the Department of State.

Congress did not leave the secretary of state at liberty to be a cowboy or an autocrat. Before making an FTO designation, State must comply with a rigorous administrative procedure and support its conclusions with findings of fact, some of which will often be based on classified information that must remain secret, lest intelligence sources critical to public safety be exposed. The secretary is required to give key congressional members an opportunity to object prior to publishing the designation in the Federal Register. Moreover, even though it may be an avowed enemy of the United States, an FTO is permitted by our generous laws to appeal the designation to the U.S. Court of Appeals for the District of Columbia–a system that provides due process but also centralizes all adjudication in a single tribunal that will develop the requisite competence and apply a single set of analytical standards.

Plainly, the process could not be more commonsensical: First, the government representative best suited to decide this essential national-security issue makes its determination (and Bush-bashers will no doubt squirm at a reminder that it was President Clinton who signed the material-support statute into law, after which Madame Secretary herself, Madeleine Albright, designated PKK and LTTE as FTOs). Next, that executive decision must surmount the safeguard hurdles of congressional oversight and judicial review. Once that is done, the designated entity is formally deemed an FTO. Because terrorism is the number one threat to our nation, and has already claimed thousands of American lives, the consequences are severe: The designation means the FTO’s assets will be frozen by financial institutions. It also means no one may lend it material support. Period.

But even so, because of our veneration of free speech, neither advocacy for nor association with terrorists is prohibited: The Wahhabi lobby is still free to vent on Osama’s behalf and even hang with its favorite bombers and hijackers. It is tangible help, material support, that is prohibited–not merely direct contributions, but also indirect support–such as propping up an FTO’s nonviolent endeavors, which effectively allows it to divert needed resources to the primary mission of murdering innocents.

Judge Collins runs roughshod over these imperatives, obliterating in the process separation-of-powers principles that supposedly constrain courts from usurping the authority constitutionally vested in other branches. Her omission of the deeply rooted principle that courts must indulge any sensible construction of an act of Congress–to avoid the drastic step of holding it unconstitutional–is not surprising; after all, that did not faze the Ninth Circuit either. But truly alarming is the manner in which she blithely undermines a tenet of foreign and military policy at the very heart of the war on terror: the status of clandestine terrorists as unlawful combatants.

Were the stakes not so high, it would almost be amusing to find Judge Collins tut-tutting toward the end of her long opinion that she certainly will not permit third parties, like the plaintiff NGOs, to challenge the secretary’s designation of PKK and LTTE as FTOs. This is lip service of the most risible sort, for it comes long after the court, in every meaningful way, has done precisely that. In the end, it matters not that the secretary of state has determined these are terror groups; what counts is what the NGOs think.

That is because these NGOs–as Judge Collins assures us in one of the more treacly tropes one is apt to encounter in a court opinion–really, really care about peace and nonviolence. Why, the lead plaintiff, Humanitarian Law Project (HLP), has for years been “dedicated to furthering international compliance with humanitarian law and human rights law and the peaceful resolution of armed conflicts.” Who really needs American law when you’ve got both humanitarian and human-rights law (whatever that means)? HLP is even led by–you guessed it–a judge! Specifically, one Ralph Fertig, who, we’re breathlessly informed, “has a career of over 50 years in human rights work,” has spent the last decade trawling the planet for human-rights violations, and not only writes reports but has even “trained others in the use of international human rights law and other lawful means for the peaceful resolution of disputes.”

Buried in a fleeting footnote of the 35-page opinion is the grudging admission that Judge Fertig is not really a judge after all; he was once an “administrative law judge” (that is, not the active, full-blown Title III kind like Judge Collins) who served in the U.S. Equal Employment Opportunity Commission (that is, neither a court nor a body with any particular competence in foreign affairs or international law), and who, Judge Collins adds en passant, “sues solely in his personal capacity” as Mr. Fertig. But not to worry, these caveats do not daunt Judge Collins, who liberally spices her opus with countless invocations of “Judge Fertig.” If you sense this has all the subtlety of an anvil, you are on target, for if the “president” of HLP were a plumber, you surely would not have heard about it. Judge Collins needs Fertig to be Judge Fertig, because it lends a certain faux-gravitas to what are actually self-absorbed legal claims advanced by that made-for-cable-TV class we have come nauseatingly to know as “activists.”

Lo and behold, this activist, and his comrades, turn out to have a far more nuanced view of PKK and LTTE than the executive-branch Neanderthals, who, let’s be candid, were really just put in charge of foreign policy by a bunch of white guys who died eons ago. Such losers, alas, operate under the crude, unevolved notion that if you prohibit all assistance of any kind to terrorist groups, they will be compelled either to cease to exist or to cease committing mass homicide. How jejune.

The noble NGOs know better. When they bat their eyes at PKK or LTTE, they don’t just see an army of insurgents who hide in the shadows, springing to kill innocents. They see a whole village, rich in non-violent, humanitarian enterprises: educators (who indoctrinate the novice terrorists), a communications infrastructure (so the terrorists can exchange information), and even a health-care-delivery system (to treat those bothersome nicks and cuts that sometimes result from mixing explosives. For the California court, the NGOs have elevated and discriminating tastes, and if their desire to promote these social goods would ineluctably keep PKK and LTTE in business–the business of killing–that’s just collateral damage. It shouldn’t deter pure hearts and good intentions.

There is, moreover, an important juridical distinction that Judge Collins senses has eluded the troglodytes at the State Department, although not the sharp legal instincts of “Judge” Fertig and the NGOs. PKK, you see, despite its status as an FTO under that anachronism known as American law, is not really a terrorist organization after all. That’s because the Honorable Mr. Fertig, in his individual capacity of course, is applying international law. Thus, after dutifully citing HLP’s host of alleged Turkish abuses against the Kurds whom PKK so valiantly supports, the court patiently explains that Fertig and his co-plaintiffs have “concluded” that PKK is not a terror group but “a party to an armed conflict governed by Geneva Conventions and Protocols” (emphasis added and soon explained). Ditto the LTTE in Sri Lanka. Never mind what the secretary of state may have concluded after a codified U.S. legal process. There is, one infers, no acceptable reason in the oh-so-civilized community of nations to cast these groups as terrorista non grata. They are freedom fighters: the lovable underdogs in what the enlightened see as civil wars.

Beyond the brief mention above, Judge Collins eschews any further examination of these Protocols to the Geneva Conventions that are said to inform these evolving refinements of international law. And for very good reason: They have repeatedly been rejected by the United States.

The rights and protections of the Geneva Conventions extend only to established military groups–regiments sanctioned by a sovereign state, subject to a responsible chain of command, clad in uniforms, carrying their weapons openly, and conducting their operations in accordance with the laws and customs of war. In 1977, the heyday for lionizing terrorist bands as “national liberation movements,” a varied coalition of international and mostly anti-American activists pushed an innovation: “Protocol I Additional to the 1949 Geneva Conventions.” One propelling goal of Protocol I was to relax Geneva standards so that other military factions–like terrorist organizations–would also be legally privileged to use force.

The problem for these activists was the United States. As recently detailed in a trenchant essay by David B. Rivkin Jr. and Lee A. Casey in the Fall 2003 issue of The National Interest (“Leashing the Dogs of War”), the United States–unlike most of Europe and much of the world–has never ratified Protocol I and has strenuously opposed it precisely because it would abet terrorists and, as President Reagan put it in 1987, “grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population.”

This principled objection to Protocol I has been American policy for nearly three decades, even to the point of bitter, enduring disagreements with some of our NATO allies. As the September 11 attacks and al Qaeda’s continuing rampage instantiate, it is now more crucial than ever. That a federal court would pass it by without comment is inexplicable. And the result boggles the mind: At the very height of terrorist peril, in a United States court, American law, under which third parties may not challenge the secretary of state’s designation of an FTO, is supplanted by international law–and not the usual amorphous, kumbaya variety, but the kind that pointedly contradicts central U.S. policy. And all for the purpose of creating a loophole that enables useful idiots to help terrorist organizations better husband their resources.

Judge Collins ultimately reasoned that the law forbidding the provision of material support to terrorists was too vague for even nimble legal minds like Judge Fertig’s to grasp. This is another tragicomic element of the casuistry: These California cases have all arisen because the NGOs have sued the government. They’ve come to court not because they’ve been prosecuted, but because they want to support two terror organizations, and they’ve fully comprehended that what they had in mind would violate the material-support law. Solicitous courts have then vacated the statute, piece-by-piece, on the remarkable ground that the law (which essentially says don’t help terrorists) is too inscrutable for the NGOs to understand what’s prohibited.

This time, the salient provision was the one that proscribed contributions of “expert advice or assistance” to FTOs. That clause was not part of the original material-support statute (which is what the Ninth Circuit found infirm last year), but was added to that statute by the Patriot Act. Hence the Times’s afore-described glee over a small section of that much maligned post-9/11 legislation being held unconstitutional. But the Patriot Act here is nearly an irrelevancy: Its trifling addition to material support has been a “dead man walking” from the moment the Ninth Circuit held that “personnel” and “training” were too elusive for persons of ordinary intelligence to grasp–a ruling that had nothing to do with the Patriot Act.

Like the authority to seize terrorist assets, the power to deprive violent organizations of the help they need to thrive and prey on the innocent is critical if our government is to disable them before they strike. The latest California decision not only guts that power, but does so by elevating international law, sculpted by anti-American activists and insurgents, to nullify U.S. laws enacted under the U.S. Constitution by the democratically elected representatives of the American people. Whatever international law may be, it is not a device for Eurocrats to rewrite American national-security law while judges get to play both diplomat and legislator. Surely, it will be unpleasant to trudge back to the Ninth Circuit, but the government has to appeal, and, ultimately, the Supreme Court has to restore order.

Andrew C. McCarthy, a former federal prosecutor who led the 1995 terrorism case against Sheik Omar Abdel Rahman, is a consultant at the Investigative Project in Washington.



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