- The Washington Times - Monday, February 2, 2004

According to United States District Judge for the Central District of California, Audrey B. Collins, citizens enjoy a constitutional right to provide “expert advice or assistance” to fortify foreign terrorist organizations. Writing in Humanitarian Law Project vs. Ashcroft (Jan. 22, 2004), Judge Collins obtusely declared unconstitutionally vague a U.S.A. Patriot Act quarantine on foreign terrorist groups — like embargoes on pariah nations — to weaken their capacity to kill, to recruit, or to achieve their bloodstained aims.

On Oct. 8, 1997, then Secretary of State Madeleine Albright designated 30 organizations as “foreign terrorist organizations” under the Antiterrorism and Effective Death Penalty Act of 1996, including the Kurdistan Workers’ Party (PKK) of Turkey and the Tamil Tigers (LTTE) of Sri Lanka. The designations pivoted on the indiscriminate use of violence by the PKK and the LTTE to intimidate civilian populations and to cow the democratically elected governments in Turkey and Sri Lanka to capitulate to their secessionist demands.

The Patriot Act broadly criminalizes the provision of material support, including expert advice or assistance, to a listed foreign terrorist group. The purpose of isolation is persuasive. Whatever enhances a listed group’s image, political cleverness, economic base, or military resources strengthens its capacity for terrorism. Although neither the PKK nor the Tamil Tigers directly threaten Americans, the United States must prohibit its citizens from offering them material support to obtain reciprocal counterterrorism cooperation from Turkey and Sri Lanka.

The Humanitarian Law Project (HLP) complained that the Patriot Act would prohibit its support for the PKK’s “peaceful and nonviolent activities.” It wished to champion the PKK’s terrorist objectives before the United Nations Commission on Human Rights and the United States Congress; to train the PKK in political advocacy and the use of international law to seek redress for human-rights violations; to write and to distribute publications supporting the terrorist objective of dismembering Turkey with an ethnically based independent Kurdish state; to advocate for the release of alleged political prisoners sympathetic to the PKK; and, to assist PKK members at peace conferences aimed at a peaceful resolution of its conflict with Turkey.

But a constitutional right to assist a foreign terrorist organization to win secession from a nation with which the United States is at peace — whether through negotiations or otherwise — is preposterous. Think of the ignominious Munich “peace conference” of 1938. Could an American citizen steeped in international affairs have claimed a free speech right to advise Adolf Hitler on how to outfox the British and French to capture sovereignty over the Sudetenland from Czechoslovakia?

Analogously, was the U.S. Congress impotent during the Civil War to prohibit Unionist citizens from counseling Jefferson Davis, president of the Confederacy, on how to gain independence through political maneuvering or international recognition?

If the PKK were to carve out a Kurdish state from Turkey, U.S. plans for a unified Iraq, including the predominantly Kurdish north, would be confounded. Carbon copy secessionist insurrections by Iranian and Syrian Kurds might be ignited. PKK success in winning nationhood would reward terrorism and spawn imitation.

In sum, the United States interest in denying the PKK political, legal or other nonviolent assistance that would advance its terrorist-secessionist objective was overwhelming. To paraphrase Supreme Court Justice Robert Jackson in Terminiello vs. Chicago (1949), the Bill of Rights does not demand that the nation court disaster or suicide.

The Tamil Tigers seek a secessionist state in the northern and eastern provinces of Sri Lanka through terrorism. Characteristic of like organizations, the LTTE undertakes auxiliary activities that strengthen its terrorist torso and sweeten its public face: political organizing and advocacy; diplomacy; social services and humanitarian aid; economic development; establishment of a quasi-government on the Jaffna Peninsula; and, defending Tamils from human rights abuses.

Two plaintiffs in Humanitarian Law Project insisted on a constitutional right to upgrade health care in areas controlled by the LTTE. As Judge Collins noted, Sangam, a New Jersey not-for-profit corporation, and its 135 predominantly Tamil members wish “to offer their expert medical advice and assistance to the LTTE by consulting with the LTTE on how the health-care system in [the northern and eastern provinces occupied by the Tamil Tigers] can be improved and by volunteering their advice and assistance to hospitals and medical centers in LTTE-controlled areas, some of which are run by the LTTE.”

Similarly, Dr. Nagalingam Jeyalingam, a naturalized United States citizen from Sri Lanka, desired “to consult with and provide the LTTE his expert advice on how to improve the delivery of health care, with a special focus on otolaryngology [i.e., nose, throat, and ear diseases].”

Medically assisting the LTTE, however, facilitates terrorist abominations. Its injured members more quickly return to terrorist duties. And the LTTE more readily attracts grass-roots sympathizers, financial contributions and terrorist recruits. The nefarious LTTE terrorist goal of partitioning Sri Lanka into separate Tamil and Sinhalese nations would be closer.

As Mr. Bumble in “Oliver Twist” would have said, “if the law sustains a constitutional right to assist foreign terrorist-secessionist organizations against countries with which we are at peace, then the law is a ass, a idiot.”

Bruce Fein is an international consultant and constitutional lawyer at Fein & Fein.

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