June 23, 2010

THE U.S. Supreme Court has upheld a part of the USA PATRIOT Act that criminalizes free speech as "terrorism"--and the Obama administration, which was expected to stop its predecessor's assault on the Constitution, is celebrating the decision as a victory.

The 6-3 decision of the court, announced June 21, upholds a portion of the 2001 Patriot Act that classifies some speech and other "intangible assistance" as material aid to terrorists.

The justices agreed with the arguments of the Obama administration--specifically, its choice to sit on the Supreme Court, former Solicitor General Elena Kagan, who made the White House's case before the court.

The administration opposed a lawsuit brought by the Humanitarian Law Project that challenged the law's provision that prohibits material support--specifically the giving of "expert advice or assistance"--to groups designated as "terrorist" by the U.S. State Department.

The law project wanted to provide advice to two groups--the Liberation Tigers of Tamil Eelam and the Kurdistan Workers' Party--on peacefully resolving disputes and working with the United Nations. But in his opinion justifying the decision, Chief Justice John Roberts said that the motives of the Humanitarian Law Project didn't matter, and any assistance to a group on the State Department's terrorism list represented "material support."

The consequences of the ruling are far-ranging, as the New York Times pointed out:

The court at least clarified that acts had to be coordinated with terror groups to be illegal, but many forms of assistance may still be a criminal act, including filing a brief against the government in a terror-group lawsuit. Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists' sources. The FBI has questioned people it suspected as being sources for a New York Times article about terrorism, and threatened to arrest them for providing material support.

In a strong dissent, Justice Stephen Breyer, supported by Sonia Sotomayor and Ruth Bader Ginsburg, said the court's majority was too willing to believe the government's argument that national security concerns required restrictions on speech and had "failed to insist upon specific evidence, rather than general assertion."

As David Cole, a lawyer with the Center for Constitutional Rights, told the Times, "This decision basically says the First Amendment allows making peacemaking and human rights advocacy a crime."

On an individual level, the ruling strengthens the government's ability to pursue the kind of witch-hunts carried out against Palestinian professor Sami Al-Arian or Pakistani student Syed Fahad Hashmi, two of the approximately 150 defendants that the government has charged with violating the material-support provision since 2001.

In Hashmi's case, after enduring nearly four years in solitary confinement, he agreed to plead guilty to a single count of material support for the "crime" of helping an acquaintance store and transport ponchos and waterproof socks that allegedly ended up with al-Qaeda organizations in Pakistan. For this, he has been sentenced to another 15 years in prison.

But the lawyers who argued the case pointed out that the impact goes further--the Patriot Act's material-support provision is so vague that humanitarian groups and journalists and their sources can be ensnared.

Some legal theorists believe the law is so broad that it could be interpreted as criminalizing any speech that could be said to give legitimacy to a terrorist group--for example, those who support the right of Hamas to lead the Palestinian Authority (after being democratically elected), even though the organization is on the State Department list. That's because, as Breyer pointed out in his dissent, the law could have made a distinction between "when the defendant knows or intends that those activities will assist the organization's unlawful terrorist actions" and when they don't--but it fails to do so.

"Instead," as lawyer Wendy Kaminer noted in The Atlantic, "the majority gave the administration a blank check to criminalize political speech specifically intended to advance peace."

The ruling also fails to acknowledge that there are almost no checks on the ability of the State Department, under the direction of the Secretary of State, to designate groups as "terrorist"--and that those decisions are often based on political calculations.

THIS RULING will be seen as another win for the Supreme Court's right wing, now led by Chief Justice Roberts, a Bush appointee. But it's also claimed as a victory by the Obama administration--and in particular, its former Solicitor General and current Supreme Court nominee Elena Kagan, who argued the government's case in February.

Kagan has been criticized as too liberal by some conservative Republican senators, but this case shows she fits in squarely with the majority of justices who support expanding presidential power at the expense of our rights.

In fact, that's one of the reasons she was chosen to join the court. She agrees with the Obama administration's fundamentally conservative position on these "war on terror" issues.

Barack Obama was expected by millions of people who voted for him to challenge George Bush's shredding of the Constitution. But a year and a half into his presidency, not only is the U.S. prison camp at Guantánamo Bay still up and running, but the Obama White House has explicitly upheld Bush administration policies on trial by military commissions, rendition of prisoners to allied regimes where torture is legal, warrantless wiretapping and the use of executive powers to hinder the prosecution of U.S. officials for illegal acts.

One of the latest outrages is the case of Yemeni detainee Mohamed Hassan Odaini. The government has concluded that Odaini did nothing wrong--but the Obama administration has refused to release him, and instead has fought vehemently in court to keep him imprisoned at Guantánamo. As Salon.com's Glenn Greenwald wrote:

[T]he Obama administration is knowingly imprisoning a completely innocent human being who has been kept in a cage in an island prison, thousands of miles from his home, for the last eight years, since he's 18 years old, despite having done absolutely nothing wrong... If you're willing to work to keep a person whom you know is innocent imprisoned, what aren't you willing to do? What decent human being wouldn't be repulsed by this? I don't care how many times someone chants "Pragmatism" or "The Long Game" or whatever other all-purpose justifying mantras have been marketed to venerate the current president; these are repellent acts that have no justification. Of course, none of this is new for the Obama administration; it's consistent with their course of conduct from the start.

The lesson here is that Barack Obama and the Democrats may have talked a different talk about civil liberties on the campaign trail, but they are committed to the same vicious policies as their predecessors. The Obama administration is willing to curtail all of our civil liberties in pursuit in the name of what was once Bush's "war on terror"--but is now wholly Obama's.