Supreme Court Prohibits Steering Terrorist Groups Toward Peace

"Legislating from the bench" is a term often used by conservative lawmakers who find that "activist judges" are trying to take their Constitutional prerogatives away from them, sometimes justifiably, sometimes with more than a tinge of vengeful paranoia based in unresolved ethical or political dilemmas.

But in certain cases, explicitly not legislating from the bench has the same effect, as in the Obama-pleasing, peacebuilder-shocking decision the Supreme Court made this week about U.S.-based relations with government-designated terrorists groups.

On the one hand, the Supreme Court's divided 6-3 decision made the Obama Administration strangely happy, because it upholds the very anti-terror provisions instituted by the Bush Administration which Obama vouched to improve upon taking office, and which he has not yet. But let's forget that for a moment, and judge the judicial decision on its merits.

The Obama Administration has repeatedly marked the importance of the prohibition of "material support," mostly meaning money to government-designated terrorist groups, which has been used some 150 times and resulted in 75 convictions since September 11, 2001. It makes self-evident sense to cut off terrorist activities at their sources, and insofar as this decision does that, it is beyond reproach.

The serious problem is, it doesn't just do that. And now it's time for the faults.

The Supreme Court has rejected a "free speech" (a term losing its meaning day by day, more below) challenge from Humanitarian Law Project (HLP) to allow them to use their considerable, proven means to steer terrorist groups away from terrorist acts and toward peace, specifically to aid Kurdish and Tamil groups. "The First Amendment permits the government to make human rights advocacy and peacemaking a crime," said Georgetown University law professor David Cole, who represented HLP in the trial.

According to Chief Justice John Roberts, "Such support frees up other resources within the organization that may be put to violent ends," and the decision about what constitutes and who is worthy of what approach should be left to the President and Congress. That is, no legislating from the bench.

As a result, the legislative and executive branches of the U.S. government now have a Supreme Court-sanctified monopoly of all relations with terrorist groups, of which they also have the exclusive powers to designate and rehabilitate. In other words, they have the power to create "our" own enemies without checks or balances, and without "us" being able to participate in their transformation from enemy to friend in any way.

Roberts' prevailing position was supported by the four other conservative Justices and the liberal-leaning John Paul Stevens. In so doing, they effectively prohibited all non-governmental support to government-designated terrorist groups, regardless of whether it is being used for conflict resolution, food, or disarmament purposes. Doing so is apparently the same as giving them guns and bombs for the Supreme Court and the Obama Administration. Who could be so foolish as to think otherwise?

Only slightly less problematic, however, was the dissenting position of Justice Stephen Breyer and his two liberal supporters. They framed the issue (following the terms of the case) not as a national security problem, international law conundrum or humanitarian predicament, but as a free-speech, First Amendment situation, finding that  "Not even the 'serious and deadly problem' of international terrorism can require automatic forfeiture of First Amendment rights." Almost heroic, except for one recent precedent-setting case.

In a decision from earlier this year (the repercussions of which will begin to be felt in the upcoming November elections and which I and many others believe erodes both free speech and democracy in America), the Supreme Court sided with corporations, allowing them to contribute limitlessly to political campaigns because such limits apparently violate free speech, which corporations like "natural persons" apparently posses. Who benefits most other than political parties? Media companies like Rupert Murdoch's News Corps, which will rake in even more advertising revenues in what may be the biggest political payoff in history.

So, corporations can "materially support" political candidates, media companies can be "materially supported" by political parties, but humanitarians cannot "materially support" terrorists in steering them toward peace, all in the name of free speech. Care to open your mouth?

Photo credit: meganwest