U.S. Supreme Court reviews Terrorism & Free Speech:Sri Lanka’s LTTE cited

The United States Supreme Court On February 23 looked in to a case brought by The Humanitarian Law Project vs. Eric Holder, US Attorney General, where the main thrust of the case revolves around Freedom of Speech vs. a Federal Law connected with material support to U.S.-designated foreign terrorist organizations, nestled within the Patriot Act , that says aid to known terrorist groups by Americans is illegal.

In this instance, speech is defined as actions.

The Obama Administration has urged the Supreme Court to uphold the law’s ban on providing “material” support to foreign terrorist organizations even when it consists of medical training and advice about peaceful activities such as lobbying the United Nations. The U.S. Solicitor General Elena Kagan, says any kind of aid to these groups, “strengthens them in everything they do.” She also said that it was impossible to separate support for a terrorist groups’ peaceful goals from their terror goals.

American advocates in the Humanitarian Law Project say they only want to support the peaceful efforts of said terrorist groups.

One Online Blog opined “Some people in the crowd have wondered if this is not simply treason, giving monies or support to any group that is a terror threat, wrapped up in emotionalism.”

The Supreme Court on February 23 listened arguments from both sides and expected to give its judgment somewhere in June this year.

The case is directly connected to Sri Lanka because the Humanitarian Law Project was representing two U.S.-designated foreign terrorist organizations (FTO), one of which is the Liberation Tigers of Tamil Eelam (Tamil Tigers) which claimed during its 26-year armed struggle for a separate independent nation in the north and east of Sri Lanka as the ‘sole representative of the Tamil People’. The outfit was militarily defeated last May within the borders of Sri Lanka eliminating the entire Tamil Tiger leadership but has energized a section of the West-domiciled Tamil Diaspora floating an organization called Transnational Government of Tamil Eelam to diplomatically lobby to achieve ‘self-determination’ for the Sri Lanka Tamil minority (12%), meaning a separate independent state of Eelam.

A meeting of the World Tamil Forum was held recently in London which advocated an economic blockade of Sri Lanka citing war crimes, human rights abuses, genocide against minority Tamils and other atrocities. It was addressed by British Foreign Secretary Miliband and graced by Prime Minister Gordon Brown.

The Government of Sri Lanka and its overseas diplomatic representatives in the West have to figure out how to prevent a ‘Kosovo-type situation’ emerging in the international arena which can gather support for the ‘cause’ the proponents of the Transnational Government of Tamil Eelam seeking.

It is in this context that Sri Lanka which is faced with this challenged overseas from the remnants of the Tamil Tigers who are connected to the Humanitarian Law Project which is challenging some provisions of the ‘Material Support Law’.

Georgetown law professor David D. Cole, who represents the Humanitarian Law Project (HLP), said his clients do not want to provide material support to the groups, but only to help them pursue peaceful ways to end conflict. "The government has spent a decade arguing that our clients cannot advocate for peace, cannot inform about international human rights," Cole told the Supreme Court on February 23.

HLP wants to support the lawful activities of the Kurdistan Workers' Party, a militant group in Turkey known as the PKK, and a Sri Lankan group known as the Liberation Tigers of Tamil Eelam.

The Supreme Court heard arguments about the anti-terrorism law that bars "material support" to groups on the US terrorist list. The law was enacted in 1996 and updated as part of the USA Patriot Act. It's being challenged in a suit filed by the Humanitarian Law Project. David Cole who described the group's argument to the SCOTUS Blog said: "This is a case about how far the (US) government can go in criminalizing pure speech advocating only lawful peaceable activity in the name of fighting terrorism."

The Humanitarian Law Project says its work with groups like the Tamil Tigers focuses on encouraging nonviolent political change and should not be included under the scope of providing "material support" to designated terrorist organizations.

In fact the HLP works very closely with some of the members of the Sri Lankan Tamil Diaspora living in the U.S. to find a peaceful solution to the minority Tamil issues in Sri Lanka who advocate ‘self-determination of the Tamil People’ citing genocidal tendency of the Sri Lanka government and discrimination against the Tamils. These advocates have influenced Western diplomats and many governments that the Tamils are a distinct nation itself with a culture separate from that of the majority Sinhalese in the island-nation. It is this influence that drew Miliband and Brown to the London World Tamil Forum.

Advocating toward that ‘peaceful end to issues’ is the core argument of the ‘freedom of speech’ case of the humanitarian Law Project reviewed by the Supreme Court.

The New York Times in its February 22 editorial expressed this opinion about terrorism law and freedom of speech which gave some interesting thoughts:

(Begin Quote) “There needs to be strong protection for a core area of protected speech and advocacy. Americans should be able to make arguments to a court on the behalf of terrorist groups. That is crucial for the legal system to work and for the constitutionality of laws of this kind to be tested. They should be able to print the views of these groups for journalistic purposes, either to report the news or to convey a range of opinions. People also need to be free to speak independently about these groups.

“These rights need to be made clear in advance. It is not enough for the government simply to say it will not prosecute in these cases. As long as people fear being sentenced to 15 years in prison, they are likely to avoid engaging even in protected speech.

“At the same time, Congress has a right to ban people from directly assisting these groups, even if that assistance is delivered in the form of spoken words. Many crimes — from blackmail to leaking insider stock information — are committed through words. There is no right to act as a spokesman for a terrorist group or serve as its adviser. Giving advice to a terrorist group, even if it is not about violent activities, is not the same as getting on a soapbox and speaking about politics. It is not necessarily innocent.” (End Quote)

Originally passed in 1996 but augmented by the Patriot Act in 2001, the material-support statute bars providing aid to any organization designated as a terrorist group by the United States government. However, the material support statute not only prohibits providing money and weapons to these groups, but denies U.S. organizations and individuals from providing “training,” “personnel,” “service” and “expert advice or assistance,” including advice on facilitating peace building programs or making human rights claims at the United Nations.

The United States, especially the diplomats in the State Department working in Washington and Colombo, looked at Sri Lanka’s Tamil Tiger movement in a totally different perspective to that of Al-Qaeda or Hamas. A former American ambassador to Sri Lanka Jeffrey Lunstead in a 2006 report to the Asia Foundation described the Tigers as a “Sri Lankan phenomenon” and that its activities have no impact in the U.S. In that report Lunstead connected Tamil Tiger terrorism to Sri Lanka’s ‘Tamil issue’. The LTTE’s 26-year attempt to interpret its armed struggle as a liberation struggle of the (12%) Tamil minority in Sri Lanka has had significant impact on the thinking of Western diplomats, and those who were in support of the LTTE agenda have now become advocates of ‘justice for the Tamils’ who propose ‘self-determination for the Tamil people’.

One of the Supreme Court Justices posed a question to Professor Cole which reminds political observers about this thinking, and this is how the dialogue went at the Supreme Court hearing on February 23:

(Begin Quote) Justice Ginsburg: Mr. Cole, would you distinguish -- I think this came up in the court of appeals. There are a lot of groups on the list. I think the Al-Qaeda was one instance that was mentioned and, at least according to the briefs, you conceded that if you wanted to do just what you describe with respect to the Kurdish group or the Tamil group, the ban would be permissible, if the group were Al-Qaeda, and I will throw in the Taliban.

Justice Ginsburg : Do you want to give an answer to the Taliban and the Al-Qaeda?

Mr. Cole: Oh, I'm sorry -- I'm sorry, Justice Ginsburg. I thought I was maybe -- but the answer would be we are in a military conflict with the Al-Qaeda and the Taliban. This Court has recognized that. It is authorized by the authorization to use military force. Therefore treason law might be applicable, number one. Number two, it is not clear that Al-Qaeda engages in any lawful activities at all, and the – the principle this Court established with respect to the Communist Party, a group that clearly engaged in illegal activities of a very, very dangerous kind, but also engaged in lawful activities, is that that -- is that the group has to be a dual purpose group. And here there is absolutely no dispute that the Kurdistan Workers Party and the LTTE engage in a wide variety of lawful activities, and that all our clients seek to do is support those lawful activities. (End Quote)

Are the proponents of the Transnational Government of Tamil Eelam endeavor to pursue the “lawful activities” of the LTTE using the First Amendment Rights (freedom of speech) of the U.S. Constitution to achieve ‘self-determination of the Tamil People’ in the north and east of Sri Lanka is the issue that is now before the Government of Sri Lanka and its overseas diplomats stationed in Western capitals.

Here is another interesting dialogue that went between the Justices and Professor Cole:

Justice John Paul Stevens seemed to question that: "Don't you agree that some of that speech can be regulated?" he asked.

No, replied Cole. Advocating only lawful, peaceable activities is "core political speech" protected by the Constitution.

Justice Anthony Kennedy asked about charitable contributions: "What about giving tsunami aid to one of these organizations?"

"Money is different," Cole said. "It's conduct, not speech."

Justice Antonin Scalia noted that Cole's clients are free to say anything they want; they just can't say it in conjunction with a group designated as a terrorist organization.

Cole responded that under that theory, The New York Times, Los Angeles Times and The Washington Post could all be prosecuted for accepting, editing and publishing op-ed pieces written by Hamas leaders.

Justice Kennedy conceded that "this is a difficult case for me." Suppose, he said, "the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization."

It is reported that the U.S. Supreme Court is expected to give its judgment in June.

- Asian Tribune -