Asking the same question I did last month, Georgetown Law Professor David Cole wonders, “Did former Attorney General Michael Mukasey, former New York Mayor Rudolph Giuliani, Tom Ridge, a former homeland security secretary, and Frances Townsend, a former national security adviser, all commit a federal crime last month in Paris when they spoke in support of the Mujahedeen Khalq [MKO] at a conference organized by the Iranian opposition group’s advocates?”
Free speech, right? Not necessarily.
The problem is that the United States government has labeled the Mujahedeen Khalq a “foreign terrorist organization,” making it a crime to provide it, directly or indirectly, with any material support. And, according to the Justice Department under Mr. Mukasey himself, as well as under the current attorney general, Eric Holder, material support includes not only cash and other tangible aid, but also speech coordinated with a “foreign terrorist organization” for its benefit. It is therefore a felony, the government has argued, to file an amicus brief on behalf of a “terrorist” group, to engage in public advocacy to challenge a group’s “terrorist” designation or even to encourage peaceful avenues for redress of grievances.
As Cole notes, he himself represented the Humanitarian Law Project in the Supreme Court case that affirmed Mukasey’s and Holder’s definition of “material support”:
[T]he Supreme Court ruled against us, stating that all such speech could be prohibited, because it might indirectly support the group’s terrorist activity. Chief Justice John Roberts reasoned that a terrorist group might use human rights advocacy training to file harassing claims, that it might use peacemaking assistance as a cover while re-arming itself, and that such speech could contribute to the group’s “legitimacy,” and thus increase its ability to obtain support elsewhere that could be turned to terrorist ends. Under the court’s decision, former President Jimmy Carter’s election monitoring team could be prosecuted for meeting with and advising Hezbollah during the 2009 Lebanese elections.
While I agree with Cole’s argument here in regard to the counter-productivity of the Mukasey-Holder definition (it would, for example, make you or me a criminal if we were to advise a Hamas activist to embrace non-violence) and his suggestion that Congress should reform the laws governing material support of terrorism to “make clear that speech advocating only lawful, nonviolent activities… is not a crime,” it’s worth noting that this would still place some of the MKO’s advocates on the wrong side of the law.
In November, Rep. Michelle Bachmann, by way of advocating that “the Islamic regime of fraudulently-elected President Ahmadinejad must be removed now, before it is too late,” called on the Obama administration to support the MKO, lamenting, “We have shackled this freedom-seeking group which has the ability to help Iranians rise up against that tyrannical regime.”
In my view, it shouldn’t be illegal to suggest such things, it should just be recognized as extraordinarily dumb. (Is it really that hard to understand why an Iraq-based organization backed by Saddam Hussein during the Iran-Iraq war might not be embraced by Iranians as tribunes of freedom?) But it is curious why Tanter, Bachmann and other MKO supporters seem able to flout the law as currently defined.