Back in February Kurdistan Commentary reported on a US Supreme Court case that involved the PKK. The case went to court later that month and today the Supreme Court upheld a US federal law that bars ‘material support’ to foreign terrorist organisations.
The thrust of the argument was freedom of speech vs. anti-terrorism laws. Free speech lost as the court ruled 6-3 that the government may prohibit all forms of aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities. During arguments in February, Justice Sotomayor wondered whether the material support statute was so vague that ‘teaching these members to play the harmonica would be unlawful.’ Justice Scalia quickly responded that a group of terrorists in a ‘harmonica quartet might tour the [U.S.] and make a lot of money.’ And that was the core of the debate. And now, it seems, there will be no harmonica lessons for members of the PKK.
Under current U.S. law there is no legal way to aid terrorist organisations, even if the aid is intended to convince the terrorist organisations not to be terrorist organisations anymore, because what if that aid somehow winds up helping them continue to be terrorist organisations? To wit, as Scalia argued, if you teach them to play the harmonica, they will quickly form a quartet, raise money, and fund their terrorist activities.
Kimberly Curtis of the FPA Human Rights blog wrote:
If it is the methods of terrorism that we are so against, then efforts to get terrorist organisations to disarm and pursue their agendas politically should be encouraged. If the pen is to be mightier than the sword, then we must preserve a place for people to talk.
Well, the court has now gone so far in its criminalisation of speech activity that those places for people to talk are quickly evaporating. ‘Aid and assistance’ to terrorist organisations can also be in the form of an op-ed essay written on behalf of a designated terrorist group. What might this mean for bloggers? What happens if you suggest that the PKK has the right to armed struggle against Turkish oppressors? What if you re-publish an interview with Murat Karayilan? Is this ‘material support’?
Three of the Court’s liberal-leaning Justices (Breyer, Ginsburg, Sotomayor) filed a strongly worded dissent, and Justice Stephen Breyer took the somewhat unusual step of reading aloud the dissent from the bench.
Speaking of the aid groups that filed the motion, Breyer said their mission is ‘entirely peaceful and consists only of political speech, including how to petition the U.N.’
‘Not even the serious and deadly problem of international terrorism can require automatic forfeiture of First Amendment rights,’ he added.
Of note is that Elena Kagan, who argued on behalf of the government back in February, is now Obama’s nominee for Supreme Court Justice.
Grace, Rob. Teaching Terrorists to Play the Harmonica. Foreign Policy Blogs, 26 February 2010.
Center for Constitutional Rights, Arguments on Holder v. Humanitarian Law Project.
Denniston, Lyle. Analysis: Partial U.S. victory on terrorism, 21 June 2010.
The PKK, US Supreme Court, and freedom of speech. Kurdistan Commentary, 19 February 2010.