Countering Terrorism: Peacebuilding and the U.S. Supreme Court

Ralph Fertig and the Humanitarian Law Project's long-waged struggle to promote non-violence by peaceably assisting the PKK and other terrorist organizations develop non-violent strategies to advance the organizations' political agendas has reached the U.S. Supreme Court. Fertig argues that training in conflict resolution, human rights law, and nonviolent civil disobedience in the model of Dr. King and Ghandi are strong alternatives to violence that actually promote peace and reduce terrorism. However, a contested U.S. federal law prohibiting rendering "material support" to a terrorist organization -- broadly defined by the law to include "training," "personnel," "expert advice or assistance" and "service" -- illegal prevents Fertig and the Humanitarian Law Project from doing its work, and relevant to the Court, violates his First Amendment right to freedom of speech.

Supporters of Fertig have compared the U.S. law and its function of dictating the kinds of nonviolent activities and associations that United States citizens can have with terrorist organizations as akin to the sorts of coercion and atmosphere of fear afflicted upon real and suspected communists or communist sympathizers in the McCarthy era. Fertig says he has no problems with a ban on providing money to terrorist organizations, which is difficult to control and could well be used to fund terrorist activities. U.S. Solicitor General Elena Kagan argues that the government does not unduly restrict speech, arguing that it is impossible to separate support of a terrorist organization's peaceable activities from the violence that defines the group a terrorist organization. John Yoo, now infamous for his "Torture Memos," filed an amicus brief alongside Edwin Meese, II, former U.S. attorney general, making a similar argument.

A Washington Post editorial argues the law is too broad. Today's Zaman columnist Nicole Pope discusses the law in terms of the classic trade-off between security and civil liberties, but using the example of Turkey's approach to Hamas, also touches on peacebuilding and terrorist organizations. According to former U.S. president Jimmy Carter and founder of the Carter Center: "Our work to end violence sometimes requires interacting directly with groups that have engaged in it. Unfortunately, efforts like ours … are hindered by the extremely vague 'material support' law that leaves us guessing whether our work to encourage peace could actually be considered illegal."

In short, there is much more at stake in terms of harms: the law not only proscribes Fertig from fully exercising his civil liberties and potentially enables McCarthy-like oppression, but also profoundly hinders peacebuilding. If the law had been applied in Northern Ireland before the start of the peace process, John Hume and several others would be in prison and there would be no peace process.

According to Today's Zaman, Fertig's group had worked with the PKK in terms of training PKK members to bring human rights violations to the attention of the United Nations, as well as offered assistance in peace negotiations.

The New York Times quotes Fertig: “Fear is manipulated,” Mr. Fertig said, “and the tools of the penal system are applied to inhibit people from speaking out.”