How Panic About Americans Joining ISIS Is Crippling the Bill of Rights

With the fall of Ramadi in Iraq and the taking of Palmyra in Syria, the war against ISIS abroad shows no sign of abating. But for the media, the real threat of ISIS is at home. Stories about Americans trying to join ISIS multiply daily, and coverage of ISIS often bleeds into paranoia, leading to a fair amount of false ISIS stories being published as real news. And since ISIS took credit for the shooting at the Mohammed cartoon contest in Garland, Texas, (without actually presenting any connection between ISIS and the shooters) the shadow of ISIS apparently looms over America’s heartland, ready to corrupt your neighbors and friends, with only the Feds able to pluck them out.


But is the cure worse than the disease?

It’s estimated that about 150 Americans have gone to fight in Syria, but only 12 Americans have actually been confirmed as joining ISIS there. Numerous Americans  have been charged with providing “material support” to a terrorist organization, usually ISIS or Al-Qaeda, under 18 U.S.C. § 2339B, which makes it a crime (punishable by up to 10 years in prison) to provide “material support” to any foreign organization the Secretary of State has designated as terrorist. What constitutes material support is loosely categorized as “training,” “expert advice,” “service” or “personnel.” Clearly, Americans who travel to Syria to join ISIS fall pretty much into that category.

Ascertaining what constitutes “material support” from here in America, however, is far less clear. Thanks to a 2010 Supreme Court ruling, “material support” can include activities such as distributing literature, participating in peaceful political advocacy, human rights training, donating funds for nonviolent assistance, and providing medical care or peacekeeping activities. It could even include filing an amicus brief on behalf of the designated organization.

Humanitarian Aid as Supporting Terrorism 

In fact, in Holder v. Humanitarian Legal Project, the Supreme Court made it clear that “material support” could mean virtually any assistance or aid. The Humanitarian Legal Project (HLP) had previously reached out to organizations in Kurdistan and Sri Lanka to teach peaceful conflict resolution—until one of the organizations was designated a terrorist organization. The HLP filed suit to support its continuing work, but the government disagreed, arguing that the assistance, even if humanitarian or peaceful, constituted “material support” under 2339B and was therefore prohibited. The Supreme Court agreed with the government.

David Cole, now a professor at Georgetown School of Law, represented HLP in the Supreme Court. “This was a straightforward First Amendment challenge. The Supreme Court said, yes, this penalizes speech, yes, all you’re trying to do is speak in favor of human rights and peace, but in this area of foreign relations, we have to be deferential to the government.” Never mind that the “dangers” were largely speculations on the part of the Justices, providing hypothetical scenarios where humanitarian assistance or peacekeeping advice might eventually “legitimize” the terrorist organization. The fear was real, and basic freedoms, sacrificed.

The ruling also flies in the face of basic criminal law standards. “Even if you advocate criminal activity, you usually can’t be prosecuted for that unless you can show that it is both intended and likely that there would be imminent lawless activity, “ says Cole. “But in Holder, the court held that when it comes to terrorist activity, you don’t have to show the same level of intent.” Even more aggressively, the court stated that there was no need to prove any intent to promote terrorist activity for the action to be considered “material support,” and the support did not actually have to reach the organization for a crime to occur.

The most prominent humanitarian groups, including the ACLU and The Carter Center among them, argued the Holder decision would have a chilling effect on humanitarian aid and peacekeeping. President Jimmy Carter condemned the ruling, stating that it “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.”

In fact, in 2011, aid workers found themselves unable to help famine victims in Somalia because the United States had designated the Islamic extremist group Al-Shabab as a terrorist organization. Al-Shabab controlled the entire Southern region of Somalia, which was worst hit by the famine, and since aid workers were prohibited from paying taxes and tolls of food shipments, it was nearly impossible for any humanitarian effort to reach the victims. It took the severity of the famine, the outcry of public opinion and many top-level negotiations, for the White House to ease its anti-terrorism stance regarding peacekeeping and humanitarian organizations dealing with Al-Shabab, and for food to reach the famine victims.

Free Speech, Free Association = Material Support? 

Today, five years after Holder, “material support” can mean anything—from praising and talking about providing support to ISIS on Facebook to translating and uploading the wrong Arabic document. These people are charged with the same crime as those Americans running off to Syria to join ISIS. In its zeal to prevent actual crimes, the government is now enabled to prosecute thought crimes.

And that includes speech. While lower courts held that speech-related definitions of material support were unconstitutional, the Holder decision changed all that.  As a result, though it’s acceptable to talk about or with a designated terrorist organization, there’s still no clear guideline for when that speech becomes “material support.” So, as Cole notes, “no one really knows where the line is” when it comes to which speech is protected by the First Amendment, and when that constitutes material support to terrorists.

The freedom of association also takes a beating from the Holder decision and brings to mind the paranoia of earlier generations: McCarthyism.  “Material support is a modern-day version of guilt by association, which was the principal tool we used to go after Communists in the Cold War,” Cole says. “During the end days of the Cold War, the Supreme Court held that it wasn’t crime to be a member of a group unless you can show that the person specifically intended to further an illegal action by the group. So you couldn’t be prosecuted for trying to overthrow the government if you joined the Communist Party, say, to further civil rights, or improve labor practices.”

Today, after Holder, that’s no longer the case. Cole argues that “material support” is used as proxy: “Instead of charging people with association or membership, they just categorize what they do in their association as material support, then say, see, we’re not criminalizing association.”  But when the individual actions the government prohibits are as innocuous as translating a text or positive as teaching conflict resolution, it’s clearly the association—Islamic groups in particular—that we’re penalizing.

Will our loose definition of providing “material support” to terrorists change? Yes, but probably not for the better. Though humanitarian organizations have attempted to appeal the issue, they’ve had no success. And with the fear-mongering about ISIS recruiting average Americans, it’s unlikely that material support will be restricted any time soon to just those few who provide money, weapons or support.  In fact, it’s no stretch to say that any Muslim with dogmatic religious beliefs now falls under suspicion, and with Islamophobia and misinformation rampant, it’s unlikely that there will be check on the definition of “material support,” particularly when it comes to Islam or the Middle East.

ISIS looks to be a leading target in the War on Terror for a long time to come. Short of an urgent humanitarian crisis like the famine in Somalia, it’s unlikely that the U.S. will restrict its counterterrorism efforts in Syria and Iraq, even for humanitarian or peacekeeping reasons. And there’s still no agreement on the best way to deal with Americans being lured by ISIS. But in our effort to prevent the few that are supporting or attempting to join in terrorist activities, we challenge and deny the First Amendment rights of hundreds of others doing far, far less.

And that’s unlikely to change for the better any time soon.

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