What Does It Mean To Support Terrorists? Posted by David Shorr

Thanks to a New York Times op-ed Monday by Georgetown law professor David Cole, debate has been renewed over last summer's SCOTUS decision in Holder v. Humanitarian Law Project and the question of what constitutes "support" for terrorists and can be prohibited. Can you, for instance, outlaw efforts aimed at steering terrorist groups toward seeking redress via peaceful means?

The news hook is the recent backing from prominent Republicans for an opposition group of Iranian exiles designated by the United States as a terrorist organization. Rachel Slajda reported for Talking Points Memo about a trip to Paris last month by Rudy Giuliani, Michael Mukasey, Tom Ridge, and Frances Townsend to express their support for the Iranian group.

The case -- and Cole's op-ed -- raise important issues of free speech. What interests me, though, is the decision's gross misunderstanding of how political legitimacy works. Here's Cole explaining the way the Court equated outreach to terror groups undertaken with the best intentions as tantamount to material support:

Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group's "legitimacy," and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends.

In other words, there's no such thing as an interchange that encourages groups with a history of terrorism to work via peaceful political means. Whatever the intentions -- indeed, regardless of the specific content or activity -- it will be subverted and have the net effect of enabling acts of terrorism. Before I get hit with the "liberals want to give terrorists therapy" line (maybe it's already too late), let me say that any such outreach to bin Laden's Al Qaeda would indeed be hopelessly naive, a fool's errand that few if any fools would undertake.

But the Supreme Court's reasoning isn't focused on bin Laden's grandiose death cult, effectively it's a claim about all movements that have resorted to terrorist attacks. No, it actually reaches further; it says that all elements within those movements must be considered monolithic, irredeemable, and untouchable for Americans. For one thing, I'd like someone to explain the process that led to peace in Northern Ireland, in light of the Court's theory of terrorism. More broadly, a monolithic notion of such movements seems at odds with any divide-and-conquer strategy, thus tying our own hand behind our back.

Chief Justice Roberts' logic places the utmost priority on sanctioning Americans from having anything to do with terrorists. Again, I should amend that, because we're not just talking about those who have carried out attacks, but everyone who shares their affiliation. What I want to highlight is the broad monochromatic brushstroke he's using.

The argument says that absolutely every input into an organization that has resorted to terror ultimately goes toward killing civilians. Do we really believe that? It's not so much a definition of material support as a claim that everything is material support. I have absolutely no qualm with punishing material support for terrorism, but I think we're getting into the area that lawyers refer to as "over-broad" (I'm not a lawyer).

And why the painting with such a broad brush? To serve the same purposes that so many ultra-conservative arguments do: moral clarity (read superiority). Superiority over terrorists? Yes, but also superiority over liberals in a useless competition over who is seen as taking the terror threat more seriously -- the key word being seen. If our domestic politics some day ever accepts the premise that all Americans want to stop terrorists, we could have a really constructive debate over the most effective ways to do so. What have we learned about inter-agency cooperation and coordination? How do we strike the balance between covertly collecting useful information on bad guys and overtly nabbing them? (Apparently we might not have gotten this right with respect to the AQ Khan network.) But as long as the issue on the table is declaring how really really really really bad, dangerous, murderous, zealous terrorists are, then it's purely political.

The other problem with the focus on the bad guys' extreme badness -- and, by contrast, our goodness -- is the blindspots it creates. Which finally brings me to the point about legitimacy. Once again, I should try to deflect a far-Right slam that could be headed my way. This isn't about blaming America, or apologizing for it. It's about how we damage our own cause by being so cranky and combattive in insisting on our moral goodness. We all know people who try too hard to talk themselves up. And what do we think of such people?

The Roberts view of legitimacy says that Americans confer legitimacy on terror-linked organizations through any contact they might have, even if they are trying to promote American values against terrorism. In other words, our legitimacy is inherent and transfered to everything we touch. The irony is the contradiction between this view and the competitive marketplace of ideas, which is supposedly the very essence of small "L" liberalism and our democratic ideals. How did we forget that legitimacy is something for which we have to get in there and fight politically? Do we really believe this kind of competition is beneath us? That legitimacy and moral authority is something we wield from up on a pedestal?

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