In a bitterly ironic counterpoint to the Supreme Court decision upholding restrictions on political speech by U.S. citizens, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit last week overturned legal provisions that prohibited providing “personnel” and “training” to foreign terrorist organizations because, the court said, such acts could be construed as forms of free expression.
Carter-appointed Judge Harry Pregerson (see “Nullify the Nutty Ninth”) wrote the opinion striking down parts of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which forbids giving “material support” to groups listed as terrorist organizations, and which defines “material support” to include “personnel” and “training.” These terms, he said, “bring within their ambit constitutionally protected speech and advocacy.”
The San Francisco-based 9th Circuit has drawn criticism for many of its left-leaning decisions, including its opinion declaring the Pledge of Allegiance unconstitutional in public schools. But this latest ruling, said Kevin Watson, spokesman for the Washington-based Law Enforcement Alliance of America, surpasses the others in that it unreasonably restricts the government’s effort in the war on terrorism.
“As ridiculous as the Pledge of Allegiance decision was, this is a ridiculous decision that could cost American lives,” said Watson. If upheld, he said, it could even stop prosecution of someone who knowingly taught a terrorist to fly a jetliner.
Among the plaintiffs who sued to kill the law were the Humanitarian Law Project and the Tamils of Northern California. The Humanitarian Law Project had formerly aided the political wing of the Partiya Karkeran Kurdistan (PKK)-a left-wing Kurdish resistance group in Turkey-but stopped doing so when the State Department designated that group a terrorist organization. The Tamils of Northern California were similarly restrained in aiding the Tamil Tiger rebels of Sri Lanka.
Both groups said they provided personnel and training only for humanitarian and advocacy purposes, not for terrorism.
“Personnel,” wrote Pregerson, “could be understood to bring into its scope Humanitarian Law Project’s members’ efforts to urge members of Congress to support the release of Kurdish political prisoners in Turkey.”
Pregerson added that it would be unconstitutional to forbid Americans from helping terrorist groups hone their skills in politics and negotiation.
“Humanitarian Law Project’s efforts to train PKK members to use humanitarian and international human rights laws to seek a peaceful resolution to the conflict in Turkey could reasonably fall within the scope of ‘training,'” he wrote.
Former Rep. Bob Barr (R.-Ga.) was the primary congressional sponsor of AEDPA, but has become an ACLU-type libertarian since leaving Congress-seemed to backtrack from part of his own law in an interview with HUMAN EVENTS. “I don’t think that there’s anything that magically makes one of these organizations a true terrorist organization simply because some people at the State Department decide that it is,” said Barr. But it was Barr’s AEDPA itself that authorized the State Department to designate foreign organizations as terrorist groups. Under Barr’s law, such a designation is not even subject to court appeal.
Barr conceded, however, that the 9th Circuit’s ruling “went too far” by preventing the government from prosecuting those who recruit or train terrorists. “The government would be wise to appeal this decision,” he said.
“This is not a Chicken Little situation,” said Barr. “The government is not all of a sudden going to have to open the doors to the jails and let a bunch of terrorists out. That’s not going to happen.”
But on the same day the 9th Circuit struck down the AEDPA’s ban on providing material support to terrorist organizations, a federal judge in upstate New York sentenced a Yemeni man-one of six arrested in Lackawanna, N.Y., in September 2002-for violating it.
Mukhtar al-Bakri, 23, was sentenced to ten years in prison for traveling to Afghanistan and training with Osama bin Laden’s al Qaeda terrorists in the spring prior to the group’s terror attacks of Sept. 11, 2001. Al-Bakri and the five others pled guilty to the charges of giving “material support to a foreign terrorist organization.”