| Over the last 100 years, there has been an evolution in the thinking on what our First Amendment protections really mean. We have gone from being able to imprison citizens for urging munitions workers to stop making ammunition for WWI because the war was unjust to today where your right to call for the violent overthrow of the United States is protected as long as you are not acting on that desire. It is breathtaking to see how we have grown to value the idea of freedom of speech.
However, as the Far Out Right is fond of saying, the price for freedom is eternal vigilance. The Framers knew that having a society where anyone can speak up in favor or opposition to anything would be less secure overall than one where dissent was suppressed and kept underground. They embraced this added risk as a requirement for a society of free people to be self-governing. They knew it was a risk, but it was a risk that went to the core of being free. So, when we go to protect freedom, we must protect it from the trade Ben Franklin worried about, namely trading liberty for security.
This is where we are in a Supreme Court case brought by the Center for Constitutional Rights. In 1998, a law as passed making it illegal for U.S. citizens to provide "material support" to groups the State Department declared as
At first blush, what could make more sense? Terrorist groups are bad, we don't want to help them and the State Department is likely to be knowledgeable enough to make that call. The problem is material support is extremely vague. Since the term is not defined what does it include?
Many groups designated as "terrorist organizations" do more than bombings and attacks.
There are groups who also build schools or provide relief aid as well as their attacks. If someone helps them in getting humanitarian aid to the people in the areas they are in, is that material support? If so, why is humanitarian aid illegal?
These are the grounds the CCR filed suit under, the premise that the wording in the law is unconstitutionally vague and a person of reasonable intelligence would have no way of knowing when they are breaking the law by doing any work, including trying to bring a terrorist group into the normal political process by talking to them, with such groups.
The vagueness of this wording was continued and expanded in the Patriot Act. Providing training or expert advice of any kind was criminalized. This means that if you went to the Gaza strip and provided the Hamas government there expert advice in sanitation techniques, you would be providing material support to a terrorist organization.
All of this had lead to a case before the Supreme Court. The CCR is arguing these restrictions on who you can associate with, as long as you are not helping in or aware of a specific criminal act, are unconstitutional based on the free assembly protections of the Constitution. To have the Executive Branch be able to designate any group it likes as terrorist and then prosecute anyone who has contact with them in any professional or private fashion as supporters is clearly guilt by association.
We have seen this kind of hysteria in the United States before, during the McCarthy Era. The victims of the Blacklisting are helping us to remember when we would ruin people's lives and livelihoods merely because they associated with Communists or Socialists. It is a good thing these people are still here to remind us how fear of an outside force can lead us to make the trade Ben Franklin scorned.
Blacklist members or their families have written what is called an amicus or "friend of the Court" brief to the Supreme Court on behalf of the CCR. They make the argument that imposing criminal penalties on speech and association, without a requirement to prove that the speech or association is tied to violent or criminal acts is what caused so much pain and suffering for them. They were run out of their professions, shunned by the nation and accused of disloyalty merely because of their words or their friends. This is what the "material support" clauses in this law do as well.
This is a time when we need to be vigilant if we are to protect our freedoms. The fear of terrorists and terrorists groups has been used as a cudgel to beat the American people into a state where they will try to trade liberty for a false sense of security. To say this pennywise and pound-foolish is to be guilty of a massive understatement.
If we are to be free, we must be free to talk to anyone we choose, even those who would like to destroy our nation. If we are to bring the violent elements of the world into a more normal and peaceful coexistence we have to be able to show them a better way, to make them value the things they can get by renouncing violence and joining civil society. To do this, there must be those who do talk to them, do help them help their people in non-violent ways. The stricture of this law prevents and criminalizes this behavior.
Worse it allows the Federal Government a tool which to beat up those it does not like. Material assistance has been used in court cases where other charges could not be supported. John Walker Lindh was charged this way, mostly because the State could not develop enough evidence for a charge of treason against the so-called "American Taliban". But it did not stop there; Omar Al Huassayn, a student who ran a website where radical Islamist came and posted was charged with material support. A jury finally acquitted him, but the time and cost of the case to him certainly had a chilling effect for those who want to run websites.
The main reason this is such a problem is the power of the State has to be kept in check. No individual is ever going to be anywhere near as powerful as the State and so in all legal proceedings the State is limited in its exercise of power. As long as something as vague as "material support" or "training" or "expert advice" is allowed to be a criminal act, no reasonable citizen can know when he is in legal jeopardy or not. Worse, since the Executive Branch makes the determination of what groups are terrorist or not, the power to suppress opponents through this criminalization of association is enormous.
It is sad that the Obama Administration and the Department of Justice want to cling to this bit of law. It is short sighted in the extreme to put this level of criminal prosecution in the hands of a branch that has been shown in recent times to be vulnerable to political prosecutions. I tend to trust the Obama Administration more than the criminal Bush Administration, but I have no doubt that if this kind of law is let stand, some administration in the future will use it as a tool to suppress political opposition.
It is good that the surviving Blacklisters and their families remind us of the cost of this kind of thing. Without their memory, we would be in danger of being condemned to repeat a shameful time in our history, which we would all rather forget.
If you are interested in reading all the amicus briefs filed on behalf of the CCR you can find them here. I strongly recommend taking the time to read them. If for no other reason than you will become part of our living memory and help to prevent the repetition of mistakes.
The floor is yours.
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