Double Standards and Supporting Terrorism


Ronald Reagan made famous the aphorism that "one man's terrorist is another man's freedom fighter." He was actually criticizing the idea, and yet in the post-9/11 world the double standard that is at the heart of the idea is of vital importance - and it appears to be alive and well in U.S. law and policy.

Consider that earlier this month the Supreme Court of the United States handed down its judgment in Holder v. Humanitarian Law Project, in which it upheld a law that made it a criminal offense to "knowingly provide material support or resources to a foreign terrorist organization." The key issue in the case before the Court was the scope of the term "material support or resources", which was defined to include not only financial and logistical support, weapons, training, and the like, but also "expert advice or assistance". Such "expert advice or assistance" was argued to encompass legal advice or even the provision to political arms of such organizations (such as the PKK in Turkey or the Tamil Tigers in Sri Lanka) explanations regarding international law and human rights, and peaceful dispute resolution mechanisms. The argument before the Court was that the law violated the freedom of speech rights of the First Amendment. The Court, in a 6-3 judgment, held the law to be constitutional, and thus affirmed that the professional communication with persons who are members of such organizations is support for a terrorist organization in violation of federal criminal law.

This is of course not an abstract matter.(continued...) There have been many prosecutions of persons in the U.S. since 9/11 for alleged support of terrorist organizations, most often for contributing money to charities that are ostensibly affiliated with Al Qaeda, Hezbollah, or other such groups. And indeed the establishment and enforcement of such laws, is consistent with United Nations Security Council Resolutions passed after 9/11, requiring member states to crack down on terrorism [UNSC Res. 1373] - though, notwithstanding the Supreme Court's recent judgment, the scope of the U.S. law would appear to go too far.

Yet little attention has been paid recently to the question of whether the U.S. is supporting organizations that not only would appear to be terrorist organizations by any objective criteria, but which are indeed designated as such by the U.S. State Department. Seymour Hersch famously reported in the New Yorker in 2008 on the extent to which the U.S. then had operatives engaged in covert activity within Iran, which included providing support to such groups as Jundallah, Mujahideen-e-Khalq (M.E.K.), and a Kurdish separatist group, the Party for a Free Life in Kurdistan, (P.J.A.K.). Jundallah is actually affiliated with Al Qaeda, and all three are designated as terrorist organizations by the U.S. government.

In fact, a Jundallah leader named Abdolmalek Rigi was captured by the Iranians in February, after which he made a televised statement in which he claimed that his organization was receiving American assistance, and that he had been captured en route to a meeting with U.S. representatives. He was executed by Iran this month. The Huffington Post reported just this week that the prevailing view the bazaars of Afghanistan is that Gen. McChrystal was fired not for insubordination, but in fact for having confirmed the fact that the U.S. was supporting such groups.

Bizarre as that story may sound, the fact remains that it is entirely likely that U.S. agencies are in the process of providing material support to groups that are engaging in terrorist activity, and which are even designated as terrorist organizations by the U.S. government. They are thus at risk of being in violation of the same federal law that the Supreme Court upheld last month - though of course they are never likely to be prosecuted.

But the creation of such patent double standards is profoundly problematic for the U.S. and the West in the effort against terrorism. It is similarly reflected in the case of CIA agents, who are civilian non-combatants under the laws of war, operate predator drones to kill suspected insurgents in the tribal provinces of Pakistan. The U.S. is poised to prosecute detainees from GITMO in military commissions for the "offence" of having engaged in hostilities as unlawful combatants - that is, engaged in combat while not being a member of a national military organization of a belligerant power. Yet members of the CIA share that status and are engaged in precisely the same activity.

The U.S. cannot claim to be waging a so-called "war on terrorism" and continue to engage in precisely the kind of activity it is said to be fighting against - not if it ever hopes to win the war of ideas that is at the very heart of the matter. And it is time for the nation to start paying more attention to the issue. - Gamma.

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