Legal “Logic” Behind Raids
As we’re all aware by now, members and friends of the Freedom Road Socialist Organization (FRSO), the Anti-War Committee (AWC) and the AWC itself were recently visited by suit-wearing thugs from the FBI, who seized their paper files, cell phones and computers in various cities. The FBI has been the political police in the United States since Hoover led the Palmer Raids back in the 1919s. So this is no surprise.
It has been difficult to discover the FBI and Justice Department’s legal ‘logic’ to this process - but given some digging, anything is possible. It is clear that Obama’s Justice Department has decided to prosecute these activists. Given the continuing legality of Guantanamo, the Patriot Act, rendition, the secrets act, wiretapping innovations, the RNC indictments, and other Bush ‘era’ laws and practices that have now become permanent or semi-permanent under Obama and Eric Holder, it was only a matter of time that they came calling on parts of the socialist and anti-war movements.
According to Colleen Rowley, in the 1996 “Anti-terrorism and Effective Death Penalty Act,” material aid to terrorism was defined as what you would expect – giving guns, money or recruits to an organization that was engaged in indiscriminate violence. By “terrorist” it is meant anyone on the “Foreign Terrorist Organizations (FTO)” list, as established by the US State Department. This list has existed for many years, being established in Section 219 of the Immigration and Nationality Act (INA), as amended. It was recently defended by Hillary Clinton, as the present Secretary of State is in charge of the FTO list. There are 47 organizations on the list presently – all using violence in various ways – some defensible, some not.
Right now this list is limited to foreign organizations. But there is no reason why it could not be extended to domestic organizations.
The 2001 Patriot Act established a new, added definition for material aid – giving ‘professional advice’ or ‘training’ or ‘services’ or ‘personnel’ to terrorists. Now the terms ‘professional advice’ could mean – “I think you should do this or that.” Jimmy Carter has met with Hamas – a group officially on the “Foreign Terrorist Organizations” (FTO) list – and suggested they make peace with Israel or with the PLO. Now you could consider this ‘giving professional advice’ to terrorists. There are US-backed charities in Afghanistan that negotiate with the local Taliban in order to survive and prosper. And you might also consider this ‘giving professional advice’ to terrorists. (I.E. “don’t attack us…we’re just trying to help.”) Neither of these examples have been prosecuted – just as military negotiators with the Taliban right now are not prosecuted.
Prosecution is reserved for those outside the government orbit, or those who are more powerless.
David Cole and the Humanitarian Law Project decided to challenge this Patriot Act law in 2009, in a case called “Holder v Humanitarian Law Project.” The Humanitarian Law Project was a religious group interested in aiding PKK refugees in and out of Turkey, based on humanitarian grounds. The PKK – the Kurdistan Workers Party – is on the FTO list. Part of their aid was to encourage the PKK to use peaceful means to pursue their goals. On June 21, 2010, in a 7 to 2 decision, the conservative Supreme Court majority plus 1 ‘liberal’ voted against the Humanitarian Law Project. The logic was that even ‘speech’ about a ‘terrorist organization’ might legitimize that organization. (!!) Lower courts had declared these provisions in the Patriot Act about freedom of speech invalid. Pacifists like the Humanitarian Law Project could be sentenced to 15 years for suggesting militant organizations pursue peaceful methods. The Supreme Court overruled the lower courts – and the Obama administration and the Bush appointees all appeared on the same page. (Queue visit to constitutional attorney Glenn Greenwald site…at Salon.com)
The government (and Holder) in this case was represented by Elena Kagan, who recently joined the court. If you don’t find this significant, I’ve got some smelling salts for you. The June 2010 ‘Holder v Humanitarian Law Project’ decision basically shut down any freedom-of-speech for social activists to, with or regarding militant or violent organizations – 5 months after, in ‘Citizens United,’ the same Supreme Court gave corporations the right to all the free speech their disembodied money could buy. Could this decision even intimidate journalists into not talking to militant organizations, because they are 'legitimizing' them?
Evidently, FRSO and Anti-War Committee members went to the Middle East or to Columbia to meet with the FARC, PFLP and Hezbollah – all on the FTO list. The FSP published laudatory articles on these organizations in their newspaper, Fight Back. The facts in each matter might legally exonerate certain FRSO and Anti-War Committee members. For instance, just meeting with people, and not writing about them, might be a significant fact. In addition, this case will test whether ‘journalism’ and ‘advocacy journalism’ is covered under the Patriot Act. It also explains the 'why now?' about these raids. The 'green light' was given in June.
At any rate, this part of the Patriot Act is ‘settled law,’ due to the Supreme Court decision. Claiming a freedom-of-speech defense, based on support of the goals and methods of specific organizations on the FTO list, is sure to be more difficult than the position of the Humanitarian Law Project. Which is why facts are the only detail that might mitigate the prosecution, at least on legal grounds. Of course, I am not an attorney. And I welcome any input.
The real legal issue here is the FTO list and ultimately the Patriot Act itself. The related no-fly “Terrorist Watch List’ now has nearly a million names on it (do you think there are a million ‘terrorist’ supporters in the US?!!). The odds that the Supreme Court will rule against themselves are zero. The odds that the Republican/Democrat government will reject provisions in the Patriot Act, or over-rule the Supreme Court, are almost nil. Will the so-called ‘liberal’ Obama administration back-peddle on their own Justice Department and drop or plea bargain? As they say in the ‘biz’, asked and answered.