by Fiss, Owen
Even deeper misgivings relate to the unwillingness of Obama to take appropriate corrective action for the constitutional wrongs, such as rendition to torture, that occurred during the Bush years. He had a clear opportunity to alter the government’s position in the Arar case and chose not to do so. Similarly, in arguments before the Ninth Circuit in the suit against a CIA contractor implicated in extraordinary rendition, Obama’s lawyers relied on the state secrets doctrine and thus seemed prepared to confer de facto immunity on the CIA for constitutional wrongs as gross as those entailed in extraordinary rendition.46
At his first press conference, President Obama was asked to comment on Senator Patrick Leahy’s proposal for the establishment of a truth commission. He then said that he was more concerned with the future than with the past.47 Fully in accord with this sentiment, Leon Panetta announced at his confirmation hearing that CIA agents who had engaged in torture, including waterboarding of suspected terrorists, would not be criminally prosecuted.48 Acting under public pressure, in August 2009 Attorney General Eric Holder formally opened an investigation to determine whether a rogue CIA agent who had tortured prisoners should be criminally prosecuted. This agent was not accused of waterboarding but of threatening imminent death by revving a drill near the head of a hooded and shackled prisoner. In the end, the attorney general decided not to prosecute this agent.
The willingness of Obama to speak only to the future was ill-conceived. He also had a duty to seek an accounting for the wrongs of the past. He should have prosecuted those who engaged in practices clearly understood to be torture and, on top of that, allowed those who were in fact tortured to pursue civil remedies. In these civil cases, the government was, of course, entitled to defend itself on the merits of and contest the factual allegations and assertions of law that should have been contested, but it should not have hid behind the technical doctrines—such as the state secrets doctrine, the special factors exception to Bivens, or the privilege of qualified immunity—that enabled the judiciary to avoid reaching the merits.
The initiation of criminal proceedings and allowing the judiciary to reach the merits of a civil suit such as Arar’s would have provided a measure of justice to the victims of torture, and not so incidentally would have lent credence to President Obama’s lofty rhetoric about the future. It would have brought to light the way the Constitution had been abused and would have enabled the public to confront and acknowledge the violations of the Constitution committed in its name. The public would have been given an opportunity to say “Never Again.”49 These criminal and civil proceedings would also have allowed the judiciary to affirm the dignity principle and the constitutional norms to which it gives life, and to declare—in bold and clear terms—that these norms apply to American officials and their instrumentalities wherever they act and against whomever they act.
Prologue to Chapter 8
Trevor Sutton
Nearly all of the major legal controversies that arose out of the Bush and Obama administrations’ national security policies revolved around constitutional provisions that govern core functions of the criminal justice system, such as searches and seizures, executive detention, methods of interrogation, and procedural fairness in determinations affecting personal liberty. But the collateral effects of the War on Terror on our constitutional tradition have not been confined to these provisions. As the following essay demonstrates, the government’s efforts to eradicate extremism worldwide have had a corrosive effect on a constitutional right that might at first seem remote from counterterrorism policy: freedom of speech.
Unlike the other essays in this volume, this chapter, “Criminalizing Political Advocacy,” which was originally delivered as the Arlin M. and Neysa Adams Lecture in Constitutional Law at Temple University, focuses on one recent Supreme Court decision, Holder v. Humanitarian Law Project, and deals exclusively with First Amendment jurisprudence. But this narrow scope should not mislead the reader into thinking that the essay is thematically unlike the rest of the book. To the contrary, “Criminalizing Political Advocacy” offers a compelling case study of a theme that appears frequently in these pages: that war tends to corrode constitutional rights, and that long wars pose especially grave threats to those rights because their duration can turn aberrations into a new normal. The essay also offers a crisp illustration of how responsibility for such “debasement” (to use Fiss’s word) of the Constitution falls on all three branches, not simply on the executive.
On some level, it is far from surprising that the right to free speech should come under pressure during wartime. Divided nations rarely win wars, and speech that might seem benign during times of peace can take on the appearance of an existential threat at the onset of armed conflict. American history provides many examples of this tendency. In 1798, before the Bill of Rights was even a decade old, the Federalist Congress passed the Alien and Sedition Acts, which criminalized speech critical of the government as the nation prepared for war with France. This pattern repeated itself numerous times in the two centuries that followed, particularly during and in the immediate wake of the First World War, when the Supreme Court twice upheld enforcement of the Espionage Act of 1917 to prohibit leafleting. However, since the First World War, the Supreme Court has erected substantial barriers protecting free speech, even in the wartime context. As a consequence, free speech protections during the Vietnam War were especially robust, as the example of the Pentagon Papers case, New York Times v. United States, illustrates.
To date, the statute upheld in Holder v. Humanitarian Law Project is the only constraint on general advocacy of violence to survive a challenge since the 1969 decision in Brandenburg v. Ohio, which limited restrictions on speech in the name of public safety to situations where such speech was likely to incite or produce “imminent lawless action.” The statute in Humanitarian Law Project made it a crime to “knowingly provid[e] material support or resources” to designated foreign terrorist organizations—a phrase that was construed to cover speech and that the plaintiffs argued violated the First Amendment because it criminalized political advocacy. Chief Justice Roberts, writing for a 6–3 Court, rejected this argument on a theory that the statute contemplated two kinds of speech, one “coordinated” with a terrorist organization and one “independent” of it. Roberts proceeded to find the statute’s ban on “coordinated” speech constitutionally sound, even if the speech in question endorsed only the lawful, nonviolent aims of a designated organization.
This holding generated considerable controversy across the political spectrum. The Washington Post, which often takes a hawkish line on national security issues, wrote that the Court had “go[ne] too far in the name of fighting terrorism.” Eugene Volokh, a law professor with libertarian leanings, called the opinion “somewhat troubling.” But perhaps the most piquant observation came from David Cole, a law professor and a lawyer for the plaintiffs in the case, who observed in an op-ed piece for the New York Times that three former Bush officials, including Attorney General Michael Mukasey, Secretary of Homeland Security Tom Ridge, as well as Rudolph Giuliani, the former mayor of New York, all appeared to have committed a federal crime when they spoke at a conference organized by supporters of an Iranian opposition group that the State Department had designated a terrorist organization. “The risk that speech advocating peace and human rights would further terrorism is so remote,” Cole wrote, “that it cannot outweigh the indispensable value of protecting dissent.”
One peculiarity of Humanitarian Law Project is that, although the statute under scrutiny in the case can correctly be viewed as an outgrowth of the War on Terror, the case itself concerned advocacy on behalf of two organizations—separatist groups in Turkey and Sri Lanka—with no meaningful connection to al-Qaeda or to any other entity connected to the September 11 attacks or at war with the United States. The decision thus enables us to see that, in the long run, disregard for constitutional principles during wartime has grave consequences not only for the nation’s enemies but f
or the people as a whole.
Chapter 8
CRIMINALIZING POLITICAL ADVOCACY
In the years following the September 11, 2001, attacks, combating terrorism became a matter of great public urgency, and as part of that endeavor we adopted a number of policies that have compromised important constitutional principles. Many of these policies pertain to the treatment of suspected terrorists who were captured as part of the War on Terror. Some of these prisoners have been subjected to interrogation techniques that might properly be considered torture. Some are being tried by military commissions. Still others are being held for prolonged, indefinite periods of time without being charged with a crime or allowed the writ of habeas corpus or any other means to test the legality of their imprisonment.
The challenge to our constitutional order has not been confined to the policies governing suspected terrorists in our custody. In the immediate wake of the September 11 attacks, President Bush authorized the National Security Agency (NSA) to use wiretaps without seeking court authorization.1 These taps were used to monitor calls made by Americans to persons abroad suspected of having ties to al-Qaeda. The existence of this program was disclosed in December 2005 and soon became the subject of great public controversy and a number of lawsuits. In January 2007, President Bush discontinued this program as a matter of policy. Later that year and again in 2008, President Bush obtained congressional authorization for such warrantless wiretaps, embraced the law as constitutional, and declared that warrantless wiretaps are an essential tool in the fight against terrorism.
The 2008 congressional grant of authority removed the conflict between the executive’s action and the Foreign Intelligence Surveillance Act (FISA) of 1978. It did not, however, overcome the objection to the NSA program based on the Fourth Amendment, which requires that, as a general matter, wiretaps need to be authorized by a court and based on probable cause. The warrant requirement seeks to curb arbitrary action of the executive and thereby protect the privacy and communicative freedom of all Americans, most immediately journalists, who often develop their stories through telephone calls to a large network of persons in the Middle East—some of whom may be thought to have ties to al-Qaeda.
This essay focuses on a related threat to our constitutional order—the curtailment of freedom of speech in the name of fighting terrorism. Specifically, my subject is the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project,2 which upheld the authority of Congress to criminalize political advocacy on behalf of foreign terrorist organizations. Like warrantless wiretapping, the risk of a criminal prosecution for political advocacy—for example, an utterance by an American citizen in an American forum that a foreign terrorist organization has a just cause—poses a threat to our democracy, but the danger is greater. The risk of warrantless wiretapping inhibits speech; the risk of a criminal prosecution is likely to stop it altogether.
A focus on the Humanitarian Law Project decision will also enable us to assign responsibility more accurately for the debasement of the Constitution in the post–9/11 era. We will be able to see more clearly than we could through an analysis of the policies governing the treatment of prisoners, or even the NSA wiretapping program, that the threat to our liberty derives not just from President Bush’s unilateral excesses, but also from policies that have been defended and perpetuated by President Obama and embraced by the other branches of government, including the Supreme Court.3 All three branches share responsibility for the abuses of the Constitution that we now confront.
The Statute
Terrorism—acts of violence in the pursuit of some political goal—is the subject of a vast panoply of criminal statutes. Killing civilians or high-level government officials is always illegal. Congress decided, however, that such statutes were not sufficient, and a strategy was devised—first enacted in 1994, and later amended in 2001 and again in 2004—to combat organizations that nourish, support, and direct terrorist activities.4 Congress hoped that isolating and starving these organizations would lessen the risk of terrorism.
The statute at issue in Humanitarian Law Project applies only to foreign, as opposed to domestic, terrorist organizations. The statute does not define the word “foreign,” but presumably it requires that the organization be based abroad and that its membership be largely constituted of foreign nationals. Some organizations that meet this requirement, such as al-Qaeda, may pose threats to targets within the United States, as manifested by the attacks of 9/11. But others, such as the PKK (Kurdistan Workers Party) in Turkey or the Tamil Tigers in Sri Lanka—the specific organizations involved in Humanitarian Law Project—are not likely to pose such a threat because their acts of violence are confined to the territories in which they are based. Congress’s interest in regulating such organizations may stem from a desire to protect individual American citizens traveling abroad who might become victims of the terrorist activities of these organizations. Or Congress may have sought to further foreign policy objectives of the United States by helping allies—such as Turkey or Sri Lanka—in their effort to combat terrorism occurring within their borders.
In pursuit of these aims, Congress established a procedure in the executive branch for designating certain organizations “foreign terrorist organizations.”5 The power to make this designation is vested in the secretary of state, who is to make his or her decision on the basis of an administrative record. This record essentially consists of a compilation of information prepared by a special office within the Department of State. The secretary of state is required to consult with the secretary of the treasury and the attorney general, and the administrative record may include information from their departments. The alleged terrorist organization and its members are not given any notice of this proceeding and thus do not have an opportunity to participate in the proceeding in any way.
Seven days before announcing a decision, the secretary of state must advise a select group of congressional leaders of the intention to designate a group a foreign terrorist organization. The secretary must then publish the designation in the Federal Register, at which time the designation takes effect. An organization designated a foreign terrorist organization can seek judicial review of the secretary’s determination in the Court of Appeals for the District of Columbia Circuit, but that review is limited to determining, on the basis of the administrative record, whether the secretary’s action is arbitrary and capricious or otherwise exceeds his or her authority. The secretary may supplement the administrative record by submitting to the Court of Appeals classified information, which can be examined in chambers and out of view of the attorneys for the designated organization. Otherwise, there is no evidentiary hearing in the Court of Appeals and no opportunity for the designated organization to supplement the administrative record in any way.
The designation procedure established by Congress is the prelude to the key operative provision of the statute.6 This provision bans “material support” to a designated foreign terrorist organization and subjects those who violate the ban to up to fifteen years in prison. Here, it is important to note an ambiguity in the word “material.” It may mean “tangible” and thus include the provision of physical objects such as computers or mobile phones or guns or even funds. “Material” also means “important” or “significant,” and it is this meaning of the word that enables the statute to reach political advocacy.
The statute lists the various ways support might be given to a designated organization, and in 2004 the statute was amended to include the provision of “services” on that list.7 In Humanitarian Law Project, the government contended that political advocacy—for example, a speech by an American citizen to a group of American citizens defending the goals of the organization—should be considered a service. The Court, in an opinion by Chief Justice Roberts, agreed with this reading of the statute.8
Some, but not all, organizations that engage in violent terrorism also provide a wide range of peaceful or humanitarian services. Although members of such organization
s may kill civilians or high-level government officials, they may also distribute food to the needy. This duality of function does not appear to be true of al-Qaeda, the principal focus of the United States’ War on Terror. It is true, however, of Hamas, Hezbollah, and the two organizations that were the specific subjects in Humanitarian Law Project—the PKK in Turkey, seeking autonomy and cultural rights for the Kurds, and the Tamil Tigers in Sri Lanka, recently annihilated by the Sri Lankan government but which had for decades sought autonomy for Tamils on the island.9
A question therefore arose before the Court as to whether it should make any difference if the defendants provided material support to the peaceful or humanitarian—as opposed to the violent—activities of the organization. Roberts read the statute as containing a universal ban on support, making no difference whatsoever whether the support, worldly or otherwise, is given to the organization to further its peaceful or humanitarian as opposed to its violent activities.10 All support is criminally proscribed.
When the material support consists of money, one can well understand Congress’s insistence on a universal ban. Money is fungible. Money given for humanitarian purposes, such as for buying food, might well be used to purchase arms. Even if the money is used for buying food, it would free up financial resources that might then be used for the violent activities of the organization. However, a policy of compartmentalization is far more plausible when the support consists of political advocacy that benefits the organization. Congress might well have been concerned with the speech that extolled the violent activities of the group but not the humanitarian.