Rudrakumaran’s role to promote LTTE contravenes US ‘Material Support’ laws

Daya Gamage – Asian Tribune US Bureau Investigative Analysis

Washington, D.C. 22 August (Asiantribune.com): The New York immigration lawyer Visuvanathan Rudrakumaran, a Sri Lanka born, United States citizen, for more than a decade has been propagating

the agenda of Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) a designated Foreign Terrorist Organization (FTO) by the U.S. under several federal laws ratified by the Congress.

Mr. Rudrakumaran, despite Tamil Tiger outfit being designated a FTO, strongly believes that it is a liberation movement to emancipate the minority 12% ethnic Tamils who have been, according to his reasoning, discriminated against by the dominant majority Sinhalese government since the fifties and therefore has the right to get ‘material support’ which the law defines as a criminal offense under U.S. laws. Rudrakumaran strongly argues that if some of the ‘material supports’ are denied it contravenes the First Amendment right of any U.S. citizen who volunteers to provide such help to an organization that is engaged in a liberation struggle.

The First Amendment to the United States Constitution is the part of the United States Bill of Rights that expressly prohibits the United States Congress from making laws "respecting an establishment of religion" or that prohibit the free exercise of religion, infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, or limit the right to petition the government for a redress of grievances.

Although the First Amendment only explicitly applies to the Congress, the Supreme Court has interpreted it as applying to the executive and judicial branches.

The text is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This New York lawyer who has a lucrative practice maintaining very close and wide contacts with rights organizations and human rights law faculty members of leading universities contends that no anti-terrorism laws passed by the Congress and no Executive Orders issued by the President of the United States could takeaway that First Amendment right of any U.S. citizen.

It is knowledgeable among US-Sri Lanka watchers here in U.S. and in Sri Lanka’s capital Colombo that under federal laws U.S. State Department officials are debarred from opening or maintaining contacts with representatives of an FTO like the LTTE. Nevertheless, Visuvanathan Rudrakumaran has found inroads to power centers in the U.S. and acts as the convener of Tamil Diaspora representative organizations to meet with U.S. policymakers and those who influence policymakers greatly benefiting the pro-LTTE lobby to influence them giving half truths, distorted picture, mixed scenario, lies and diabolical untruths about the situation in Sri Lanka.

Taking cover behind that First Amendment cloak Mr. Rudrakumaran advocates in defense and support of the Tamil Tigers thus becoming not only the leading spokesman for Sri Lanka’s Tamil Tiger outfit while being on the U.S. soil with full U.S. citizenship but also within a decade becoming its chief U.S. spokesman, and now, aspires to become the leader of the Sri Lankan Tamil Diaspora spread throughout the globe with the inauguration of the Provisional Transnational Government of Tamil Eelam following the annihilation of the terror group within Sri Lanka in May 2009.

The LTTE media outlet TamilNet in its 03 December 2006 issue describing Visuvanathan Rudrakumaran as the legal advisor to the Tamil Tiger outfit quoted him from his address at the LTTE Heroes Day event held the previous day at South Brunswick Middle School in New Jersey explaining the legal rights of U.S. citizens with regard to anti terrorism legislation in the United States as saying while the Anti Terrorism and Effective Death Penalty Act (AEDPA) amended by the Patriot Act and Intelligence Reform and Terrorism Prevention Act (IRTPA) prohibits providing material support to designated organizations, "the Statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group”, in this case meaning the LTTE, a group designated an FTO in the U.S..

Rudrakumaran explained at the New Jersey gathering the legal rights of US citizens with regards to anti-terrorism legislations of the United States.

The belief he has that the LTTE is a liberation organization Visuvanathan Rudrakumaran advocates that it has the right to procure, obtain and import military hardware for its ‘liberation struggle’ in Sri Lanka.

Rudrakumaran’s Established Connections to LTTE

Did Visuvanathan Rudrakumaran at any stage made himself available to the Tamil Tigers, a designated FTO in the United States, where he worked under the LTTE’s direction or control or organized, managed, supervised or otherwise directed the operation of the LTTE?

Does Rudrakumaran’s conduct in promoting, aiding and abetting the LTTE absolve him from criminal conduct as an individual who acted entirely independently of the LTTE to advance its goals or objectives?

Can Rudrakumaran’s advocacy of the goals and objectives of the LTTE, an FTO in the U.S. under federal statutes, and making him available to the LTTE consider a non-criminal behavior which is protected by the First Amendment as long as he engaged in advocacy entirely independent of the foreign terrorist organization, in this case the LTTE?

The Material Support provision is defined as "Currency or other financial securities, financial services, lodging, training, safe house, falls documentation or identification, communication equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical asserts except medicine or religious materials." The Statute also says that "Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment," Rudrakumaran says very confidently.

His interpretation is that a U.S. citizen can advocate or promote a designated FTO under the First Amendment. Law explicitly says that a person so advocates or promotes the agenda of an FTO cannot be prosecuted if that person acted independent of the designated FTO.

Let’s find out how independent Visuvanathan Rudrakumaran had been of the LTTE.

In November 1997, Rudrakumaran, among others, was retained by the LTTE Secretariat in London, U.K. to challenge the State Department ‘terrorist’ designation of the outfit in the U.S. Court of Appeals in Washington D.C. The U.S. designated it a ‘foreign terrorist organization’ on October 8, 1997 under the Anti-Terrorism Act of 1996.

He participated in the LTTE delegation in the:

(a) Thimphu Talks in 1985

(b) The 4^th round of Peace Talks Phase One with the Sri Lanka Government in Thailand from 16 through 18 September 2002

(c) The 4^th round of Peace Talks Phase Two with the GSL in Thailand from 31 October through 03 November 2002

(d) The 4^th round of Peace Talks Phase Three with the GSL in Norway from 02 through 05 December

(e) The 4^th round of Peace Talks Phase Four with the GSL at Thailand from 06 through 09 January 2003

(f) The 4^th round of Peace Talks Phase Five at the Norwegian Embassy in Berlin, Germany from 07 through 08 February 2003

(g) In the failed Oslo Talks with the GSL from 08 through 09 June 2006

(h) The Geneva Talks Two from October 28 & 29 2006

Rudrakumaran participated in the Canberra Conference in 1996, in which, supporters of the separatist LTTE movement in Sri Lanka had gathered.

Delivered a special address on the LTTE’s Heroes’ Day celebration at New Jersey, USA, organized by a Tamil Front Organization.

The LTTE’s constitutional committee meeting was held in Paris in August 2003; and as an advisor for constitutional affairs of Tamil Tigers he convened the meeting.

Rudrakumaran was responsible for coordinating the Defense at the Rajiv Gandhi assassination trial in India, Suresh Manikkavasagam trial in Canada, and challenging the US designation of the LTTE as a terrorist organization.

Rudrakumaran delivered a speech in Switzerland on April 2006, about the policy statement of the LTTE, which coincided with the 62nd General Assembly of the UN. In his speech, he states that, this is not just another statement of the LTTE, but a policy statement that spells out its future strategic direction.

The final section of the paper he presented in Switzerland that refers to the expectations of the LTTE is as follows:

(b) Provide appropriate opportunities to the Tamil people to express these aspirations, as have been given to the people of East Timor and Kosovo.

Visuvanathan Rudrakumaran currently acts as the International Legal Adviser and International & Diplomatic Affairs of the LTTE. Following death of Anton Balasingham, he is acting as a Political Advisor to the LTTE.

Rudrakumaran, a U.S. citizen who is bound by the United States laws was not acting entirely independent of the LTTE, which is a designated FTO under U.S. federal laws, to advance its goals or objectives thus consolidating that he is an effective part of Sri Lanka’s separatist outfit.

And, here’s one more example:

Addressing a Tamil Diaspora rally in the vicinity of the United Nations in New York on 08 December 2008 Visuvanathan Rudrakumaran declared:

“Through our Awareness rallies with Tamil Eelam flags and pictures of the Tamil national leader, Hon. Vellupillai Pirabaharan, we have demonstrated to the GoSL that their zeal to quell the Tamils’ thirst for the realization of the right to self-determination or their dream of wiping out the LTTE will be a futile one. The more they bomb, the more the Tamil Diaspora is resolved to protect their brethren. The more they shell, the more the

Tamils are resolved to realize their right of self-determination. The more they brag about their military adventurism, the more the Tamil people rally under the leadership of the

Liberation Tigers of Tamil Eelam.”

And another of his deep rooted connections with the LTTE:

Rudrakumaran on 22 June 2009 announced the formation of a Provisional Transitional Government of Tamil Eelam a little over a month of the military defeat of the LTTE and the deaths of its almost entire leadership which includes Prabhakaran.

Rudrakumaran in his media statement refers to the defeat of the LTTE, in his opinion was spear-heading a legitimate campaign of the Tamils to realize their right to self-determination, in this manner:

(Begin Quote) “The legitimate campaign of the Tamils to realize their right to self-determination has been brutally crushed through military aggression, which has been in violation of humanitarian laws and all civilized norms. People all over the world are shocked and deeply saddened by the massacres of Tamils in the Vanni. (End Quote)

He says that the transitional government at this moment was imperative at a time of the “exclusion of its political leaders is achieved’ by the Government of Sri Lanka.

Who are these political leaders being excluded: Obviously Prabhakaran and his top leaders who constituted the supreme leadership of the LTTE which the United States designated a FTO under several federal laws. Here is the full quote:

“We, the people of Tamil Eelam and its Diaspora, therefore, firmly believe that the formation of a Provisional Transnational Government of Tamil Eelam is imperative. It is a well accepted proposition in international law that the legal claim to establish a government in exile arises the more readily when the exclusion of its political leaders is achieved through acts contrary to principles of ius cogens, such as the unlawful use of force, abductions with a view to torture, genocide, war crimes, detention in internment camps or “open prisons,” the rape of women and the kidnapping of children.”

Rudrakumaran Defending Arms Procurements

State Department and the U.S. Justice Department should be aware, if they have done their research and investigation, that Rudrakumaran, in a widely read article for the benefit of the Tamil Diaspora in North America carried in TamilCanadian web site on July 10, 2006, defended arms procurement of Sri Lanka’s separatist Tamil Tigers saying that since it is a liberation movement it has the right to import arms.

About a month after Rudrakumaran’s ‘advocacy piece’ appeared in TamilCanadian, FBI arrested 13 Sri Lankan ethnic Tamils, domiciled in Canada and the United States, conspiring to acquire sophisticated military hardware for the LTTE, and the FBI said in its 34-page complaint unsealed on August 21, 2006 in US District Court in Brooklyn, New York that its investigations have discovered that the Tamil Tigers wanted radio towers, missile-launchers, AK-47s, night vision goggles- even software to design submarines and warships.

Whether advocating and justifying arms procurement to a movement designated a terrorist organization by the United States government amount to “providing material support” is another question before the U.S. Justice Department when the ‘advocate’ himself a U.S. citizen who has established deep root connections to the LTTE.

It is left for the U.S. authorities to determine whether the “advocacy” by a U.S. citizen promoting the procurement of military hardware for a U.S. designated FTO falls within the jurisdiction of the First Amendment Right of freedom of speech.

In a landmark case, a New York-based civil rights lawyer, an American citizen, Lynne F. Stewart was convicted for providing material support to an Egyptian terrorist organization designated by the United States Government a “Foreign Terrorist Organization” and was sentenced to 28 months in prison by a U.S. District Court in New York.

Keeping the above U.S. federal law in mind one could derive at a reasonable conclusion what Visuvanathan Rudrakumaran endeavors to communicate in the following paragraph taken out from his submission to TamilCanadian appeared in its web site on July 10, 2006:

(Begin Quote) “In 2003, three separate incidents at sea took 26 LTTE members. The Sri Lanka Navy sank an LTTE merchant ship in international waters. Even in spite of that, the LTTE has shown great restraint in their actions. The government has justified its action by claiming that the LTTE ships were carrying arms.

“Arguendo, the LTTE ships were getting arms, it does not entitle the GOSL to attack those ships.

“The relevant language of the Ceasefire Agreement (CFA) states in Section 1.2:

Neither Party shall engage in any offensive military operation. This requires the total cessation of all military actions and includes, but not limited to, such acts as:

(a) The firing of direct and indirect weapons, armed raids, ambushes, assassinations, abductions, destruction of civilian or military property, sabotage, suicide missions and activities by deep penetration units;

“Thus, the importation of weapons and ammunition can only be considered proscribed if such action is specifically included in the above paragraphs. Clearly the importation of weapons and ammunition is not an offensive military operation and clearly there is no prohibition in the CFA.

“The fact that a prohibition on rearmament is not included in the CFA is not inconsistent with general state practice. A review ceasefire agreements and subsequent peace agreements indicates that prohibitions on rearmament are generally included in the final peace agreements as part of a comprehensive program on demobilization, disarmament, and decommissioning of weapons.

“Moreover, the LTTE is a national liberation movement. Thus, it can be argued under U.N. General Assembly Resolutions 3034 and 3314 that the LTTE has a right to import arms for the realization of the right to self-determination. Also under the international law concept of self-defense and self-help, the LTTE can import arms.” (End Quote)

Visuvanathan Rudrakumaran cites Resolutions 3034 and 3314 adopted by the United Nations General Assembly in support of his argument:

Resolution 3034 measures “to prevent international terrorism which endangers or takes innocent human lives or jeopardizes fundamental freedoms, and study of the underlying causes of those forms of terrorism and acts of violence.”

Rudrakumaran based his above argument on section 3 of the resolution which states: “Reaffirms the inalienable right to self-determination and independence of all peoples under colonial and racist regimes and other forms of alien domination and uphold the legitimacy of their struggle, in particular the struggle of national liberation movements, in accordance with the purposes and principles of the Charter and the relevant resolutions of the organs of the United nations.”

Visuvanathan Rudrakumaran’s defense of the LTTE that it has the right to procure and import military hardware for its use in Sri Lanka because it is a liberation movement and on the strength of being a liberation movement it has the right to do so. Now the issue here is whether the LTTE was designated by the United States as a liberation organization or a Foreign Terrorist Organization, and if the latter is true isn’t Rudrakumaran, a U.S. citizen, in violation of several federal statutes that prohibit ‘material support’ to an FTO.

In advocating the LTTE’s right to procure and import arms to Sri Lanka in his well read July 10, 2006 article carried in TamilCanadian does Rudrakumaran justify the procurement and smuggling of heavy military hardware and communication equipment for the use by the LTTE by Selvarasa Pathmanathan now in Sri Lankan custody. Does Rudrakumaran’s pronouncements in TamilCanadian violate certain U.S. federal laws and statutes that prohibit ‘material support’ to designated Foreign Terrorist Organizations one of which is Sri Lanka’s LTTE or Tamil Tigers?

August 12 (2009) Bangladeshi American conviction

Under ‘Material Support’ law

A federal jury has found Ehsanul Islam Sadequee, 23, a Bangladesh American residing in Roswell, Georgia August 12 (2009), guilty on all four counts of an indictment charging him with supporting terrorists and a foreign terrorist organization, after a trial that lasted seven days. The jury deliberated for approximately five hours before reaching the guilty verdicts. U.S. District Judge William S. Duffey, Jr. presided over the trial.

Ehsanul Islam Sadequee was convicted of supporting terrorists and a foreign terrorist organization. Sadequee was convicted of (1) conspiring to provide material support to terrorists; (2) attempting to provide and providing material support to terrorists; (3) conspiring to provide material support to Lashkar-e-Tayyiba (LET), a designated foreign terrorist organization; and (4) attempting to provide material support to LET.

Atlanta FBI Special Agent in Charge Gregory Jones said, "The FBI continues to investigate a growing number of cases involving U.S. citizens providing material support to terrorists. However, as we move further away from the tragic events of September 11, 2001, there also seems to be a growing public perception that such conduct is harmless, especially since no bombs were exploded and no one was killed. This defendant, like many others we have investigated, tried to argue that his criminal conduct and activities were protected by the First Amendment of the U.S. Constitution. The FBI does not buy that argument and today the jury agreed." Jones added, "I would like to thank our law enforcement and intelligence community partners, domestic and international, who provided tremendous assistance to the Atlanta FBI Joint Terrorism Task Force throughout the investigation and prosecution of Sadequee, Syed Haris Ahmed, and their co-conspirators."

The government alleged at trial that Sadequee and his co-conspirators used the internet to develop relationships and maintain contact with other supporters of violent jihad in the U.S. and around the world.

Current Status of U.S. “Material Support” Laws:

As the Law Stands Today

The Sri Lanka-born Naturalized U.S. citizen New York immigration attorney Visuvanathan Rudrakumaran and others associated with human rights organizations in the United States and a prominent rights advocate Georgetown University law professor David Cole since late nineties sought the U.S. legal system to strike the Liberation Tigers of Tamil Eelam (LTTE) a.k.a. Tamil Tigers from the State Department list of designated Foreign Terrorist Organizations (FTO).

Rudrakumaran, while being an advocate to the ‘cause’ of the Tamil Tigers of Sri Lanka, endeavored through U.S. District and Appeal Courts to get an interpretation to the “Material Support” laws to facilitate him, Tamil Tiger advocates in the U.S. and LTTE front organizations operating in the United States to provide “material Support” to the efforts of the Tamil Tigers. The FBI which is the investigative agency under the U.S. Justice Department and the U.S. State Department are aware that the LTTE endeavors to advance its goal of a separate state in the north and east of Sri Lanka by using terror tactics through mass killings and assassinations of political leaders opposed to its endeavors.

On January 05 this year (2009) the United States Court of Appeals for the Ninth Circuit finally gave its legal interpretation and decided the constitutionality of the “Material Support” laws Rudrakumaran and his cohorts were endeavoring to ‘beat’ in the U.S. legal system.

The Appeal Court on January 05, 2009 gave its judgment on the constitutionality of Sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act (AEDPA) and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act (IRTPA).

Section 302(a) of AEDPA (codified in 8 U.S.C. 1189) authorizes the Secretary of State to designate a group as a “foreign terrorist organization”.

Section 303(a) makes it a crime for anyone to provide support to even the nonviolent activities of the designated organization as clearly stated in 18 U.S.C. 2339B(a).

Specifically, 8 U.S.C 1189(a)(1) authorizes the Secretary of State to designate an organization as a foreign terrorist organization . . . if the Secretary finds that (A) the organization is a foreign organization; (B) the organization engages in terrorist activity . . . ; and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

The plaintiffs who were before the U.S. Court of Appeals for the Ninth Circuit which on January 05, 2009 gave its interpretation of the “Material Support” laws were David Cole, Georgetown University Law Center; Shayna Kadidal, Center for Constitutional Rights; Carol A. Sobel, Law Office of Carol A. Sobel; Paul L. Hoffman, Schonbrun, De Simone, Seplow Harris & Hoffman, LLP; Visuvanathan Rudrakumaran, Plaintiff World Tamil Coordinating Committee.

Following the judgment of the United States Court of Appeals for the Ninth Circuit here’s where the law on ‘Material Support” to U.S. designated Foreign Terrorist Organizations (FTO) stands today until the U.S. Supreme Court on a future date gives a different interpretation as to the constitutionality of the “Material” laws.

( 1) Knowledge of the person who provides material support to an FTO and that the organization was designated as a foreign terrorist organization or that the donor had knowledge of the organization’s unlawful activities that caused it to be so designated was one issue the Court of Appeal settled in its 05 January 2009 decision.

On December 17, 2004 the U.S. Congress passed the Intelligence Reform and Terrorism Prevention Act (“IRTPA”) which amended AEDPA. As amended, AEDPA now provides in part: Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

In 18 U.S.C. § 2339A(b)(3) “Personnel” includes “1 or more individuals” who “work under the[e] terrorist organization’s direction or control or [who] organize, manage, supervise, or otherwise direct the operation of that organization.”

In 18 U.S.C. § 2339B(h). AEDPA, as amended by IRTPA, narrows the definition of “personnel” by providing that “individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction or control.”

Providing “material support or resources” to a designated foreign terrorist organization includes a mens rea (knowledge) requirement. To violate the statute, a person who provides “material support or resources” to a designated organization must know that (1) “the organization is a designated terrorist organization,”(2) “the organization has engaged or engages in terrorist activity,” or that (3) “the organization has engaged or engages in terrorism.” 18 U.S.C. § 2339B(a)(1) is very clear on this.

This Section exposes one to criminal liability only where the government proves that the donor defendant acted with culpable intent — knowledge.

Thus, the Appeal Court determined in its ruling on 05 January 2009, that a person with such knowledge is put on notice that “providing material support or resources” to a designated foreign terrorist organization is unlawful.

Accordingly, the Court of Appeal held that the amended version of section 2339B comports with the Fifth Amendment’s requirement of “personal guilt.”

The following section of the ruling by the U.S. Court of Appeals for the Ninth Circuit on 05 January 2009 clears several misconceptions the plaintiffs (Visuvanathan Rudrakumaran and others) presented in their oral arguments, and the Appeal Court’s interpretation of “material support” laws determines where the law stands today.

Here is the quote from the Appeal Court ruling:

(Begin Quote) “At oral argument, Plaintiffs conceded that, were we to read into section 2339B a specific intent requirement that the person providing “material support or resources” do so with an intent to further the organization’s unlawful goals (terrorist activity), we would be extending Scales. Because we find that acting with “knowledge” satisfies the requirement of “personal guilt” and eliminates any due process concerns, we decline Plaintiffs’ invitation to extend the holding in Scales. (Scales v. United States, 367 U.S. 203 (1961)

“In Scales, the Supreme Court held that it was wrong to impute criminal guilt based on membership in an organization without proof that the defendant acted with culpable intent. See id. at 224-25. As amended, section 2339B(a) does not proscribe membership in or association with the terrorist organizations, but seeks to punish only those who have provided “material support or resources” to a foreign terrorist organization with knowledge that the organization was a designated foreign terrorist organization, or that it is or has engaged in terrorist activities or terrorism. Accordingly, unlike the statute in Scales which was silent with respect to requisite mens rea, section 2339B(a) exposes one to criminal liability only where the government proves that the donor defendant acted with culpable intent — knowledge.

“Vicarious liability involves holding one person accountable for the actions of another. Section 2339B(a) criminalizes the act of knowingly providing “material support or resources” to a designated foreign terrorist organization. Donor defendants are penalized for the criminal act of support. Donor defendants cannot be penalized under section 2339B(a) for the illegal conduct of the donee organization.

“Unlike the statute at issue in Ferguson, section 2339B(a) seeks to punish only those who commit the acts proscribed by the statute. In other words, a person who provides “material support or resources” to a designated foreign terrorist organization is liable for knowingly doing so in violation of section 2339B(a). Section 2339B(a) does not impose “vicarious criminal liability” because the statute cannot be invoked to punish the donor defendant for crimes committed by the donee foreign terrorist organization. A person cannot be convicted of murder under section 2339B(a) if the foreign terrorist organization committed an act of terrorism that took innocent lives. In sum, because section 2339B(a) does not impose “vicarious criminal liability,” due process is satisfied without proof of specific intent to further the organization’s illegal goals. (End Quote)

Note what the Appeal Court says: “In sum, because section 2339B(a) does not impose “vicarious criminal liability,” due process is satisfied without proof of specific intent to further the organization’s illegal goals.”

(2) Personnel support to a designated Foreign Terrorist Organization was another issue that the U.S. Court of Appeal settled in its 05 January 2009 judgment.

In 18 U.S.C. § 2339B(a)(1) the term “material support or resources” includes: any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

18 U.S.C. § 2339A(b) In enacting IRTPA, Congress amended the definition of “material support or resources” to include an additional ban on providing “service.” Congress also defined for the first time the terms “training” and “expert advice or assistance,” 18 U.S.C. § 2339(A)(b)(2)-(3), and clarified the prohibition against providing “personnel” to designated organizations, 18 U.S.C. § 2339B(h).

In 18 U.S.C. § 2339A(b)(3) “Personnel” includes “1 or more individuals” who “work under the terrorist organization’s direction or control or [who] organize, manage, supervise, or otherwise direct the operation of that organization.” 18 U.S.C. § 2339B(h). AEDPA, as amended by IRTPA, narrows the definition of “personnel” by providing that “individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction or control.”

In 2004, Congress passed IRTPA which amended AEDPA. IRTPA added a limitation to the ban on providing “personnel.” 18 U.S.C. § 2339B(h) provides this legal definition. Section 2339B(h) clarifies that section 2339B(a) criminalizes providing “personnel” to a foreign terrorist organization only where a person, alone or with others, “works under that terrorist organization’s direction or control or . . . organizes, manage s, supervises, or otherwise directs the operation of that organization.” Section 2339B(h) also states that the ban on “personnel” does not criminalize the conduct of “individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives.”

Promoting Terrorism Abroad Under First Amendment Cover

Atlanta FBI Special Agent in Charge Gregory Jones said, "The FBI continues to investigate a growing number of cases involving U.S. citizens providing material support to terrorists. However, as we move further away from the tragic events of September 11, 2001, there also seems to be a growing public perception that such conduct is harmless, especially since no bombs were exploded and no one was killed. This defendant, like many others we have investigated, tried to argue that his criminal conduct and activities were protected by the First Amendment of the U.S. Constitution. The FBI does not buy that argument and today the jury agreed."

The FBI agent made the above remarks after the federal court in Georgia convicted a Bangladeshi American on 12 August 2009 Ehsanul Islam Sadequee for supporting terrorists and a foreign terrorist organization. Sadequee was convicted of (1) conspiring to provide material support to terrorists; (2) attempting to provide and providing material support to terrorists; (3) conspiring to provide material support to Lashkar-e-Tayyiba (LET), a designated foreign terrorist organization; and (4) attempting to provide material support to LET.

The First Amendment to the U.S. Constitution is: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In enacting “Material Support” laws the U.S. Congress determined that ‘foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’

The United States Court of Appeals for the Ninth Circuit in its ruling on 05 January 2009 declared (Begin Quote) As amended by IRTPA, AEDPA’s prohibition on providing “personnel” is not vague because the ban no longer “blurs the line between protected expression and unprotected conduct.”

“Section 2339B(h) clarifies that Plaintiffs advocating lawful causes of PKK and LTTE cannot be held liable for providing these organizations with “personnel” as long as they engage in such advocacy “entirely independently of those foreign terrorist organizations.” (End Quote)

Connected to the First Amendment rights the Court of Appeals further declared the following:

(Begin Quote) Section 2339B(a)’s ban on provision of “material support or resources” to designated foreign terrorist organizations undoubtedly has many legitimate applications. For instance, the importance of curbing terrorism cannot be underestimated.

Cutting off “material support or resources” from terrorist organizations deprives them of means with which to carry out acts of terrorism and potentially leads to their demise.

Thus, section 2339B(a) can legitimately be applied to criminalize facilitation of terrorism in the form of providing foreign terrorist organizations with income, weapons, or expertise in constructing explosive devices. See HLP I, 205 F.3d at 1133.

The Supreme Court cautioned in Hicks that “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.”

Hicks, 539 U.S. at 119. Were we to restrain the government from enforcing section 2339B(a) that prohibits individuals in the United States from providing “material support or resources” to foreign terrorist organizations, we would potentially be placing our nation in danger of future terrorist attacks.

Moreover, although Plaintiffs may be able to identify particular instances of protected speech that may fall within the statute, those instances are not substantial when compared to the legitimate applications of section 2339B(a).

Thus, because AEDPA section 2339B is not aimed at expressive conduct and because it does not cover a substantial amount of protected speech, we hold that the prohibition against providing “material support or resources” to a foreign terrorist organization is not facially overbroad. (End Quote)

Concluding Remarks

The record is very clear that Visuvanathan Rudrakumaran had close working relationship with Sri Lanka’s LTTE which is a designated FTO under U.S. federal laws. His statements and his collaboration with the operation of the LTTE to further the latter’s goals are clear indications that he does not fall within the reading of Section 2339B(h) which states that the ban on “personnel” does not criminalize the conduct of “individuals who act entirely independently of the foreign terrorist organization to advance its goals and objectives.”

What the U.S. Justice Department needs to ascertain is whether Rudrakumaran’s actions falls within the definition of Section 2339B(h). Section 2339B(h) clarifies that section 2339B(a) criminalizes providing “personnel” to a foreign terrorist organization only where a person, alone or with others, “works under that terrorist organization’s direction or control or . . . organizes, manages, supervises, or otherwise directs the operation of that organization.”

What type of a relationship did Visuvanathan Rudrakumaran maintained with the hierarchy of the LTTE? According to established reports his association seems to have been at the highest level of advisory capacity under the direction of the LTTE. And, did he direct the operation of the LTTE in the spheres of legal and political conduct essential for it to advance its goals and objectives.

The next issue before Rudrakumaran is whether he was aware that he was dealing with an organization which uses terror as a weapon and that the organization is a designated FTO by the United States.

Terrorist to one is a liberation fighter to another. To Visuvanathan Rudrakumaran the Tamil Tigers are liberation fighters but to U.S. authorities it is a Foreign Terrorist Organization.

Providing “material support or resources” to a designated foreign terrorist organization includes a mens rea (knowledge) requirement. To violate the statute, a person who provides “material support or resources” to a designated organization must know that (1) “the organization is a designated terrorist organization,”(2) “the organization has engaged or engages in terrorist activity,” or that (3) “the organization has engaged or engages in terrorism.” 18 U.S.C. § 2339B(a)(1) is very clear on this.

The argument that the LTTE is a liberation organization does not negate 18 U.S.C. § 2339B(a)(1)

This Section exposes one to criminal liability only where the government proves that the donor defendant acted with culpable intent — knowledge.

Thus, the Appeal Court determined in its ruling on 05 January 2009, that a person with such knowledge is put on notice that “providing material support or resources” to a designated foreign terrorist organization is unlawful.

Accordingly, the Court of Appeal held that the amended version of section 2339B comports with the Fifth Amendment’s requirement of “personal guilt.”

Atlanta FBI Special Agent in Charge Gregory Jones said, "The FBI continues to investigate a growing number of cases involving U.S. citizens providing material support to terrorists. However, as we move further away from the tragic events of September 11, 2001, there also seems to be a growing public perception that such conduct is harmless, especially since no bombs were exploded and no one was killed. This defendant, like many others we have investigated, tried to argue that his criminal conduct and activities were protected by the First Amendment of the U.S. Constitution. The FBI does not buy that argument and today the jury agreed."

The most interesting observation by the FBI agent is: “there also seems to be a growing public perception that such conduct is harmless, especially since no bombs were exploded and no one was killed.”

The ‘conduct’ is taking cover behind the First Amendment to advance the cause of a Foreign Terrorist Organization.

In enacting “Material Support” laws the U.S. Congress determined that ‘foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’

Then Rudrakumaran’s declaration that the LTTE has the right to procure arms and import because it is a liberation movement needs serious consideration.

He made the remarks while Selvarasa Pathmanathan a.k.a ‘KP’ who is being interrogated by the Sri Lankan authorities at present in Colombo was engaged in ‘arms deals’ internationally to militarily equip the LTTE to use its standard terror tactics to promote its goal to achieve a separate mono ethnic state.

Was Visuvanathan Rudrakumaran aware of Pathmanathan’s international endeavors at a time he made the statement that TamilCanadian carried in its July 10, 2006 web page?

Rudrakumaran proclaimed in TamilCanadian: “Moreover, the LTTE is a national liberation movement. Thus, it can be argued under U.N. General Assembly Resolutions 3034 and 3314 that the LTTE has a right to import arms for the realization of the right to self-determination. Also under the international law concept of self-defense and self-help, the LTTE can import arms.”

This politico-legal interpretation of the conduct of Visuvanathan Rudrakumaran and “Material Support” laws as they stand today is a reminder to the Sri Lankan authorities that it needs to focus much attention to activities that are taking place on behalf of the goals and aspirations of the LTTE in the international arena which can harm the progress that this South Asian nation has undertaken to redress the grievances of all ethnic communities. Rudrakumaran’s endeavors at present may further complicate the relations Sri Lanka has with the West.

Sri Lanka has internally defeated the LTTE but needs to go beyond her shores to prevent the Outfit becoming an influential lobby in the West which Rudrakumaran intends to build.

Sri Lanka needs to work with the United States Department of Justice and its investigative arm the FBI and the State Department to get cogent answers surrounding the behavior of Visuvanathan Rudrakumaran who is subject to U.S. laws, definitely covered by the many antiterrorism laws and ‘Material Support’ laws.

Unless the United States Supreme Court gives a separate judgment in a later date on Material Support laws the interpretation given by the U.S. Court of Appeals for the Ninth Circuit last January prevails, and Sri Lankan and U.S. authorities could work around this interpretation to get some answers about the conduct of Visuvanathan Rudrakumaran.

- Asian Tribune -