Alright, y'all, welcome back to the show, it's Anti-War Radio on the Liberty Radio Network.
I'm your host, Scott Horton, appreciate y'all tuning in to the show today.
Now, our next guest is Shane Cottidall.
I bet I messed it up, sorry.
He is from the Center for Constitutional Rights and the U.S. Supreme Court.
What they say goes, I guess.
What is it that they said?
Shane, welcome to the show.
Thanks for having me.
We often say that they are correct because final, not final because correct.
But, yeah, yesterday they ended a case that's been going on for 12 years, shortly after President Clinton signed a law creating what's called the Material Support Statute.
It's a criminal prohibition, and the way it works is this.
Well, wait a minute.
Actually, stop right there.
I just want to ask you a small point of clarification.
Was this part of the 1996 anti-terrorism and effective death penalty thing?
That's right.
It started with, it was modified in a number of respects by the Patriot Act.
So this was actually the first case that the Supreme Court challenging a part of the Patriot Act.
But the way it works is this.
The State Department creates a list of so-called foreign terrorist organizations.
It's very easy to put an organization on the list.
You can get on there for doing economic damage to U.S. interests as well as sort of carrying out terrorism, Greenpeace, a foreign organization that routinely engages in activities that's criminal, could easily be put on the list.
And then once a group is on the list, any form of essentially of association with the group, it becomes a very serious crime.
So, of course, things like donating money and arms, that fits within what a typical layperson would think is material support to an organization on the list.
But you can also sort of get in trouble for giving your own personal services or expert advice and assistance or training or providing your own services as personnel to one of these groups.
Those are all terms that are listed in the statute.
And so the plaintiffs in this case, our clients, are humanitarian groups.
And what they wanted to do was basically go into conflict zones and talk to two groups on the list, the Kurdistan Workers Party and the Tamil Tigers, and convince them to turn away from terrorism, away from violence, teach them things like human rights monitoring and how to submit complaints to the U.N.
And the Supreme Court yesterday said essentially that the First Amendment allows Congress to make that kind of peacemaking activity, that kind of humanitarian aid into a crime, even though it's pure speech.
Wow.
Okay, now, I'm not the lawyer.
That's the heroic anti-torture human rights lawyer at Harper's Magazine.
He's the one who understands these things, not me.
So let me ask you this.
I just spent the last ten minutes before the top of the hour explaining that the whole war on terrorism is America's fault, that Osama bin Laden and his entire group were reacting and using a strategy against our empire that was already bombing Iraq from bases in Saudi Arabia near Mecca and Medina, was already supporting Israel, was already supporting the dictators in Egypt and Kuwait and Pakistan and torturers and such like that.
And this is what Osama bin Laden declared war on America about.
This is what he used to recruit people to do it.
It was the motivation of the lead hijackers, Mohammed Atta and his buddy Ramzi bin al-Shib and all those guys.
And not that any of that justifies it, just that it's the truth, that we started it, and then we used September 11th as the excuse to do more of the same, as though history began on September 11th and et cetera like that.
So now I wonder, since I just made the case, again, not the moral case for the other side, but simply the cause and effect case for how we got into this mess, did I just provide material support to al-Qaeda?
And could I go to prison for 15 years for saying that?
Well, no, the irony is that anything that you say that's entirely independent of one of these organizations is okay.
So even if I praise them, I'd be okay?
Right, right.
And you know there are exemptions carved out in the statute too that are a little nutty.
So religious materials, someone got that put into the statute, the religious materials encouraging violence.
You can give all those you want to al-Qaeda according to the material support statute, but can you talk to them about how terrorism is wrong and how they should turn away from it?
No, that can land you in jail.
I mean the war mentality of the quote unquote war on terror is that the other side is an enemy just like the Nazis in World War II and it just has to be destroyed.
There's no engaging with it.
And that is the sort of attitude I think that our plaintiffs, our clients really wanted to sort of work around.
They're all about engaging with groups.
And the government very explicitly came into the court and said, our motivation for wanting to stop even sort of peace groups from talking to organizations that are on the blacklist is that we want to make those groups radioactive.
We want to make it completely toxic for any form of interaction, good or bad with them.
We want to make them into the enemy, the other, just like in a war.
Essentially they want to sort of apply the war mentality to sanctioning these groups and even interactions that everyone would agree are beneficial, would turn people away from violence, are things that the government wants to be able to block because it wants to be able to essentially cut off any engagement with groups like Hamas or other groups on the FTO list.
And so now what did the Supreme Court say?
This is none of our business?
Essentially yes.
I mean I think it put an end to any sort of legal challenges, at least preemptive legal challenges by groups who were seeking to do this kind of work.
Our plaintiffs haven't done any of the sort of activities that they wanted to since this case has been going because what they did instead was instead of doing these peace trainings with the groups on the list and then taking the risk of having to defend themselves against criminal charges, they went to the court in the first place and said I want you to give us an order saying that the government can't prosecute us.
So I don't think we're going to see very many suits like that going forward based on today's decision which is very broad.
Again it says that while this is a speech that in theory is protected by the First Amendment, the government has good enough rationale for criminalizing all of it.
Well and you know I guess I'm not too sure about how this works, but it seems like on these questions where they decide in favor of the executive branch against what would seem to laymen like me to be the obvious language of the Constitution and the Bill of Rights, that kind of thing, that usually what it ends up coming down to is that well because this is wartime and because the legislature that represents the people has given this authority to the executive, it's not really our place as judges to intervene in this national security matter.
That way they don't have to really tackle the First Amendment.
They just say well we're not even going to look at this.
Is that basically what went on here?
Absolutely.
I mean there are four or five pages of the majority opinion where they talk about how the judges aren't looking at the evidence and drawing their own conclusions about whether or not peace groups talking to blacklisted groups can increase the legitimacy of those blacklisted groups.
Or to use another argument that the government put out there and the court accepted, the court said it's not making its own judgments as to whether or not giving a group human rights training then frees up money that that group can use to buy weapons or build bombs.
That was an argument the government made and the court bought and it said look, in terms of whether or not these are factually legitimate claims about legitimacy or about freeing up fungible resources that can be turned to violence, we're going to defer heavily to the executive and to the executive's determination about this and to Congress' too in deciding whether or not that just factually makes sense.
And what Justice Breyer said in dissent, Breyer, Sotomayor, and Ginsburg dissented in this case.
They said look, that's just completely unrealistic.
There has to be a closer tie between the speech that you say is going to have these bad effects and the effects themselves before we're going to be willing to sort of trump the First Amendment and allow the government to turn this kind of speech into a crime.
Wow, it really is incredible.
And you bring up Sri Lanka as part of this.
This is a terrorist war that went on for a long time between the Tamil Tigers and whoever, all the different factions there.
None of them were our enemies in the American terror war, and you're saying that this group only wanted to teach them, hey look, it'd be better if you just introduced a resolution in the General Assembly instead of blowing yourself up.
And that's what they're in trouble for, or could be.
Yeah, I mean, we had been in contact with people who told us that some of the Tamil leadership wanted to get books on federalism, for instance, on how do you govern in a country where you've got different ethnic groups and linguistic groups, how do you govern on the model that the original founders put in place for the U.S.
So if you gave them a copy of Hamilton, Madison, and Jay, you could be busted for that.
Absolutely.
For teaching them federalism.
Incredible.
The Federalist Papers get you thrown in jail now.
Wonderful.
Okay, this is Anti-War Radio.
We're talking with Shane Cottedall, and he's from the Center for Constitutional Rights, and a very important Supreme Court decision at issue.
We'll be back after this.
Listen to LRN.
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Can't stand it for another day.
Gonna live my life this way.
I'll sweat, I'll fist a blanket.
Stop, stop, stop.
See it in your vision.
You're one of these ones.
Don't you understand?
All right, y'all, welcome back to the show.
It's Anti-War Radio on LRN.
FM.
And, boy, we're talking argument ad absurdum now here.
I've made the case that I'm a little bit of a neocon, and I do want to spread what I consider to be the most important American, that is, Enlightenment Declaration of Independence-type values to the people of the world.
But I always thought the way to do that would be, like, you know, say, for example, put the Federalist Papers on audiobook and then send them out, you know, on iPods to the winds, to the four corners of the earth.
And now it turns out that if I was to do that, if I was to put the Federalist Papers on an iPod and try to send it to, or, you know, pick something even better than the Federalist Papers and send that to the bad guys to try to teach them to adopt my way instead of being terrorists, I could be imprisoned for 15 years by the Federals.
I'm talking with Shane Cottedale from the Center for Constitutional Rights.
Could it possibly be that my hyperbole here is accurate, sir?
It is, you know, although in some ways really the greatest tragedy of this material support statute is not about speech but about humanitarian aid.
And just, you know, to turn back to the Tamil example again, you know, that war did go on for a very long time, as you mentioned, and it meant that the Tamil Tigers were effectively the de facto government in the whole coastal region along the east side of Sri Lanka, and that was the area that got hit the hardest by the civil war and then also by the tsunami.
And all sorts of international aid groups, you know, doctors who wanted to go there and volunteer their services like happened after the Haiti earthquake couldn't do it because to do so would require interacting with the government on the ground there, and that government was, you know, a group that was on the terrorism blacklist.
So, you know, that kind of humanitarian aid along with all the sort of speech that we've been talking about is just as big a problem, and because the court cases are essentially done now, I think it's really all in Congress' hands to change this.
All right.
Well, everybody hold your breath starting right now.
Once you turn blue, they'll pass the law and fix it.
You know, let me ask you about this.
Elena Kagan, right now her job is, or was at least, she was the solicitor general, and she's the one who argued this case on behalf of the Obama administration, huh?
Yeah, and she made all these arguments, you know, that, you know, giving humanitarian aid frees up, you know, money that can be used to buy arms, that it, you know, that interacting with U.S. citizens, even if the U.S. citizens are just going, you know, over to talk to people about how they should turn away from violence, that that conveys legitimacy, that U.S. citizens are conveying legitimacy to these organizations.
And then, you know, one really interesting thing that she said was, you know, the court got very curious about whether or not you could submit a friend of the court brief and amicus brief on behalf of one of these organizations saying, you know, maybe in a court case that the organization shouldn't even be on one of these terrorism lists.
And does that constitute material support?
And what Kagan said was, well, look, you know, there's an exemption, you know, that you should read into the statute any time someone has a constitutional right to be in court.
So if you have a right to a criminal defense under the Sixth Amendment, or if you have some due process rights that you can vindicate in civil litigation under the Fifth Amendment, then you can have a lawyer.
A lawyer can represent you for free, for instance.
But, you know, that implies that even lawyers doing pro bono litigation for people who don't clearly have constitutional rights, that they can get in trouble, too, for providing material support, even if they're not getting paid.
So just think about it.
You know, in the Guantanamo litigation, it took many years to establish that we had a constitutional right to go into court and ask the court, you know, whether or not our guys down in Guantanamo, our clients, were actually lawfully detained.
And what Kagan said in court essentially implies that even lawyers doing those kind of cases could get in trouble if the Supreme Court case had come out the other way.
And given what we know about Guantanamo...
So you're talking about the lawyers that represented Rasul Hamdan and Bomeddine.
They could have gone to prison if the court had only ruled opposite.
Right, right.
You know, the government has said at some point that everybody at Guantanamo was, you know, either a member of Al-Qaeda or the Taliban or somehow closely linked to them.
So, you know, being members in those groups that are on various sort of sanctions lists, you know, conceivably could have put the lawyers in jeopardy.
All right.
So, well, tell me this now.
Elena Kagan, Obama's current Supreme Court nominee, who argued all these positions to the Supreme Court and prevailed, she was an employee of Bill Clinton's administration back in the 1990s.
Did she have any part in putting together this law in the first place?
I'm not sure if there was a paper trail actually on these issues, you know, to tell you the truth back then.
I would be surprised.
I mean, it, you know, came out of this, you know, initially out of ADPA.
And certainly Clinton himself, you know, pushed this idea of using sanction schemes against organizations very heavily.
You know, if you can look before the Clinton administration, which was a disastrous administration from a civil liberties perspective, but before the Clinton administration, you'd never had sanctions that weren't directed at whole countries.
You know, the idea of sanctioning countries came out of war powers, from the trading with the enemy act in World War I and so forth.
And the idea was you could put a whole country in every, you know, sort of national of that country.
So every Cuban corporation and the country of Cuba on a sanctions list, but that you couldn't single out sort of private entities.
And it was really only under Clinton that we start to see this happen.
Yeah, it's almost like a bill of attainder, I guess.
Or I guess the constitutional remedy for not necessarily sanctions, but for example, to fight Al-Qaeda would be a letter of mark and reprisal, right?
That's the constitutional method for declaring war against a sub-state group like pirates or terrorists.
Well, I mean, you know, there's a whole very complicated debate over whether or not, you know, one ought to be, you know, sort of authorizing the broad use of military force.
You know, there is a lot of international law out there that governs the use of armed force.
And kind of the bottom line on it is that, you know, the best approach to dealing with these groups is the criminal law.
They are essentially vast criminal conspiracies.
People engaging in terrorist acts are criminals, not warriors.
And the best way to deal with them, and in fact to delegitimate them, to use the government's own terms, is to treat them as criminals and not as sort of people engaged in some legitimate military conflict with you, right?
I mean, that's the grand irony in trying people like Khalid Sheikh Mohammed in a military commission.
It plays right up his alley.
It's very clear that, you know, he wants to be seen as a warrior in a political struggle and not as someone who murdered 3,000 civilians.
Right.
And, you know, it's funny because it's kind of contradictory because, after all, it is a war.
And if the people on the other side consider themselves soldiers in a war, that's fine.
But you're right that the best way to, I mean, obviously, waging war against them hasn't caught us Ayman al-Zawahiri or Osama bin Laden.
And Faisal Shahzad just pled guilty in New York yesterday.
Didn't even get a jury together for that one.
So, you know, it's pretty clear that, you know, police policy, you know, would be a better way to handle it.
But also, as you say, to delegitimize and kind of undo the would-be heroism of these people instead of pretending like Osama bin Laden is the leader of the Soviet Union or something, some mortal danger to us all, to minimalize him like the judge did with the alleged shoe bomber.
He said, you're no warrior.
You're nothing but scum.
You're the lowest guy in the whole prison.
Nobody cares about you.
And that's the way to handle these guys rather than making giant martyrs out of them and blowing up their egos and giving people more incentive to want to go out the same way.
Yeah, and I'm glad you mentioned the Soviet Union because, you know, in every way, it presented so much greater an existential threat than al-Qaeda or any of the terrorist organizations out there today.
And, you know, there was a whole line of Supreme Court cases where the Supreme Court in the 50s and 60s said, you know, you can't punish people for being members in the Communist Party unless they want to support the illegal ends of the Communist Party.
And those were cases that we tried to rely on here in saying, you know, you never know.
Well, your colleague David Cole writes today that Jimmy Carter could be prosecuted for helping the Lebanese hold elections under this thing.
Absolutely.
He talked to Hamas and Hezbollah and gave them training in what constitutes a fair election.
All right.
Well, listen, I really appreciate your time on the show today.
Sorry we went a little bit over the break there.
Everybody, for archive purposes later anyway, will be able to hear me say that Shane Cottedall from the Center for Constitutional Rights.
I really appreciate your hard work on this.
And I hope that there's another way around it you guys can find to get this thing fixed.
Well, thank you.
Thanks for having me.
And, you know, we'll keep fighting, although it'll probably be in Congress.
Right.
All right.
Well, I appreciate it.
I hope we can do it again.
Take care.
