Is There Freedom To Associate With Terrorists?

There may be a risk that the war on terrorism will lead the government into guilt-by-association excesses akin to those of the McCarthy era. But so far the administration has not crossed that line.

There is, actually. Even the Bush Justice Department says so, explaining in a recent legal brief that people who sympathize with foreign terrorist groups are free to "meet with their members and advocate their causes"—which in many cases include peaceful political and humanitarian activities as well as mass murder. The First Amendment guarantees you a right to visit terrorists, speak with them, worship with them, have lunch with them, defend their methods, or sign up as a member of their group.

What you cannot do, according to a 1996 law, is provide them with money, personal services, or other "material support." This previously obscure law has become a critical weapon for the Bush administration in its pursuit of Al Qaeda "sleeper cells" as well as in its effort to block contributions to the political and charitable arms of foreign terrorist groups such as Hamas. At the same time, the 1996 law has become a target for civil libertarians, who complain that the government is resorting to a form of guilt by association reminiscent of the McCarthy era. Courts have issued conflicting rulings as to its constitutionality.

The critics cite the prosecutions of six men from Lackawanna, N.Y., who allegedly trained at an Al Qaeda camp in Afghanistan, and the ban on contributions to any of the dozens of groups on the government's list of foreign terrorist organizations. Such uses of the 1996 law, libertarians say, violate a long line of Supreme Court rulings that the First Amendment guarantees the right to be a member of the U.S. Communist Party or any other subversive group, to associate with such groups, and to engage in abstract advocacy of violent revolution. In those cases, the Court held that unless the government can prove that a Communist Party member specifically intended to further violence or other illegal actions, it must leave him or her alone.

The 1996 law "is written so broadly," complained Professor David Cole of Georgetown Law School in an October 19 New York Times op-ed, "that it would make it a crime to write a column or to file a lawsuit on behalf of a proscribed organization, or even to send a book on Gandhi's theory of nonviolence to the leader of a terrorist group in an attempt to persuade him to forego [sic] violence." Similarly, an Arab-American friend complains that the government has made it difficult for Americans to give money to relieve the misery of Palestinians in the West Bank and Gaza because the major providers of such relief also engage in terrorism.

With all due respect to Cole and to my friend, this strikes me as a false alarm. There may be a risk that the war on terrorism will lead the government into guilt-by-association excesses akin to those of the McCarthy era, but so far the administration has not crossed that line. The Justice Department and several judges have ruled out any use of the 1996 law to ensnare sympathizers, column writers, lawsuit filers, or others who merely associate with terrorist groups. The administration's efforts to choke off financial contributions to terrorist groups seem necessary despite the unfortunate side effects on humanitarian activities. And prosecutions such as those of the Lackawanna defendants seem amply justified by the critically important need to lock up suspected Al Qaeda "sleepers"—who are trained to avoid any criminal activities that might attract attention while awaiting their marching orders-before they strike.

(The military detentions of another two U.S. citizens as "enemy combatants," with no semblance of due process, are another matter. See my column of October 12.)

The 1996 law making it a crime to "knowingly provide material support or resources to a foreign terrorist organization" was part of the Antiterrorism and Effective Death Penalty Act. Congress's main objective was to prevent foreign terrorist groups from raising money—especially through purported charitable contributions—that might be diverted into terrorist activities or free up other resources for such activities.

But thanks to Congress's broad definition of "material support," which includes providing "personnel," the 1996 law has also proved to be the government's best tool against suspected Al Qaeda sleepers. Providing "personnel," the government says, includes volunteering oneself as a recruit—a charge it has now brought against at least 15 men, including the six in Lackawanna.

The lawyers for, and many sympathizers of, the six Lackawanna defendants—all of whom are American-born Muslims of Yemeni descent and some of whom were popular high school soccer players—portray them as idealists on a constitutionally protected religious quest who somehow fell in with a bad crowd and stumbled into a bad place, but who remain essentially harmless. It would be an unconstitutional infringement of their freedom of association to punish them, defense lawyers suggest, unless the government can prove that they specifically intended to murder fellow Americans (or commit other terrorist crimes) whenever Al Qaeda gave the word.

But the 1996 law does not require the government to prove that much, and for good reason. All it should have to prove is what two of the defendants have already come close to admitting: that after traveling to Pakistan and Afghanistan, undergoing indoctrination at a guest house in Kandahar, proceeding to Al Qaeda's al-Farooq camp, and hearing a speech by Osama bin Laden about the need to fight America, they willingly trained for up to six weeks in the use of terrorist weapons, including explosives and Kalashnikov rifles.

If the government can't lock up people who do that—without shouldering the onerous additional burden of proving murderous intent—it will be exceedingly difficult to stop suspected Al Qaeda sleepers before they kill. It is all too easy for such a defendant to disavow murderous intent. This is not to deny that some may be sincere in doing so. Take Sahim Alwan, who claims that he never intended to become an Al Qaeda recruit, stayed at the terrorist training camp for 10 days only because he had no choice, and then left at his first opportunity. If the jury believes all that, it should acquit him. But if the evidence shows that he voluntarily trained to become a terrorist, even for a few days, his apparent change of heart thereafter would not erase his crime. (It would, on the other hand, warrant leniency in sentencing.)

The Lackawanna defendants also invoke a preliminary decision by a three-judge federal appellate panel in California two years ago striking the word "personnel" (as well as "training") out of Congress's definition of "material support." The panel held "personnel" to be unconstitutionally vague because it could be used to prosecute someone for mere advocacy of a terrorist group's cause, and thus "blurs the line between protected expression and unprotected conduct."

Other judges have persuasively rejected this logic. They include U.S. District Judge T. S. Ellis III, of Alexandria, Va., who upheld the government's use of the 1996 law (among others) to prosecute John Walker Lindh, the "American Taliban." In July, before the plea bargain that ended the Lindh case was struck, Judge Ellis ruled that there was no vagueness problem because "the term `personnel' does not extend to independent actors"; it extends only to people who submit themselves to a terrorist group's "direction and control."

The other major attack on the 1996 law comes from would-be donors to the political and charitable arms of groups on the government's list of foreign terrorist organizations. Complaining that the statute bars even gifts of humanitarian supplies such as infant formula, the critics claim in a pending lawsuit that the First Amendment guarantees them a right to give money (as well as humanitarian supplies) to such groups unless the government can prove that the donors specifically intend to facilitate terrorist activities.

But such logic would stretch freedom of association too far for today's dangerous world. No matter what the donor's intent, contributions to the charitable arms of foreign groups engaged in terrorism can easily be diverted to pay for truck bombs. Even a gift of infant formula could indirectly help a group such as Hamas finance terrorism by enabling it to spend less money on formula and more on bombs. Those who want to alleviate the misery of people in places such as the West Bank and Gaza will have to find charitable groups that eschew terrorism—or, if necessary, create such groups.

Critics who liken the 1996 law to the anti-Communist provisions invalidated by the Supreme Court contend that those provisions "could not have been saved simply by criminalizing the payment of dues rather than membership itself," in Cole's words. But the analogy does not fit. None of these cases declared a right to give money to the U.S. Communist Party. Nor was the party in the business of mass murder. Today's terrorist groups are far more dangerous.