Covering a multitude of sins (continued)

Doing an end run around the First Amendment

The First Amendment (and the body of case law that surrounds it) prohibits the Department of Justice from using mere association with Islamist fundamentalists or advocacy of their views as grounds for arrest. In the McCarthy era of the 1950s, for example, when a legislative "subversive activities" committee demanded that a professor discuss his political associations and views (including his reported assertion that the capitalist society would collapse in violence), the Supreme Court ruled their questioning unconstitutional. In 1969, the high court ruled that a Ku Klux Klansman’s speech advocating "revengeance" against the government was constitutionally protected. While one cannot use speech to incite imminent lawless action (such as exhorting an angry crowd to burn down a local building), the court ruled, merely advocating violence in less specific terms (such as saying the building deserves to burn) is protected. And in a 1987 case, a county clerical employee won the right to tell a co-worker that if assassins "go for [President Reagan] again, I hope they get him."

However, the Bush administration is doing an end run around the First Amendment and successfully attacking dissident political advocacy through aggressive application of the rapidly expanding "material support" laws. Traditionally, a law that bars material support would prohibit aiding and abetting others in committing or planning a crime. But the Anti-Terrorism and Effective Death Penalty Act (AEDPA), passed by Congress and signed into law by President Clinton in 1996, created a broader definition of material support, making it a crime to donate money and material items to political groups deemed to be "foreign terrorist organizations." In 2001, the Patriot Act further expanded the definition of material support to include offering "expert advice and assistance" to terrorist organizations. The end result is that the material-support laws, as outlined in the AEDPA and especially the Patriot Act, provide Ashcroft with a potent weapon to squeeze First Amendment rights to free association and speech.

Take the case of Sami Omar al-Hussayen, a graduate student in computer science at the University of Idaho. The leader of the school’s Muslim Student Association, al-Hussayen assisted various organizations and individuals in establishing and maintaining Web sites that allegedly promoted terrorism. He also acted as the moderator for a 2400 member e-mail discussion group supposedly devoted to supporters of violent jihad. According to Ashcroft’s March 4 press statement announcing the indictment against al-Hussayen, by maintaining the Web sites and the discussion group, "Al-Hussayen knew and intended that his computer services and expertise would be used to recruit and raise funds for violent jihad around the world."

Prosecutors have used the Patriot Act’s prohibition against providing "expert advice and assistance" to go after al-Hussayen. If they succeed, the line between constitutionally protected advocacy and illegal material assistance will be virtually eradicated, as will the line that had been drawn — until now — between one who moderates an online discussion group and those who post messages. Worse, the Wall Street Journal reported earlier this month that prosecutors in the case plan to call defendants who pleaded guilty in other material-assistance terrorism cases as witnesses against al-Hussayen. They will tell the jury that they were influenced to commit their crimes partly by al-Hussayen’s Web site and discussion group. That a moderator of a Web site or online discussion group can be held criminally responsible for acts committed by his readers and words written by his subscribers is an innovation with staggering implications for free speech and free press. If successful, al-Hussayen’s prosecution will have a profound chilling effect not just on authors, but on those who publish, edit, and promote discussions of controversial topics.

The "expert advice and assistance" provision of the Patriot Act has recently come under fire. In Humanitarian Law Project v. Ashcroft, the restriction was challenged by a variety of groups that provide humanitarian and legal assistance — as well as perform political advocacy for — organizations ranging from Sinn Fein and the Tamil Tigers to Palestinian humanitarian-relief foundations. The plaintiffs in that lawsuit, whose actions have been curtailed by the new law, charged that it unconstitutionally infringes on their freedom of speech. California federal district-court judge Audrey Collins ruled in favor of the plaintiffs and enjoined Ashcroft from enforcing the provision within the district. (Collins elected not to issue a national injunction.) It remains to be seen, however, how the Court of Appeals for the Ninth Circuit (which includes California) will rule on this issue. The case may end up before the Supreme Court.

Ashcroft, meanwhile, is seeking to expand these material-support laws even further. In testimony before the House Judiciary Committee on June 5, 2003, the attorney general said that anti-terrorism laws must be "clarified" so the government can charge people who provide any kind of assistance, no matter how innocuous, to terrorist groups as "material supporters" of terrorism. "[W]e need for the law to make it clear that it’s just as much a conspiracy to aid and assist the terrorists, to join them for fighting purposes, as it is to carry them a lunch," Ashcroft said. (Apparently this may already be a crime and we just don’t know it — recall, after all, that Mohamed K. Bellahouel reportedly first came to the government’s attention because he had served food to two of the 9/11 hijackers.)

Ashcroft’s proposed "clarification" of the material-support laws would allow him to cast a much wider net, potentially ensnaring anyone who has spent a significant amount of time with a "terrorist." To be effective, such vague and expansive laws need not even be tested in the courts; their very existence would serve as a deterrent to all but the most brave (or foolish, as the case may be). The Supreme Court has, in the past, struck down vague and overly broad laws that impinge on First Amendment rights because even when rarely enforced, such statutes impose a "chilling effect" on free speech and its close relative, free association. But it is hardly clear that courts will do so again, given the countervailing pressures of the war on terror and Ashcroft’s national-security claims.

While we wait to see whether the high court will protect the First Amendment, the Justice Department continues to test the boundaries of the Patriot Act’s material-support statute. Take the case of Lynne Stewart, a radical and outspoken attorney for accused terrorist Sheikh Abdel Rahman. Last year, Stewart was indicted for "material support" of terrorism because she organized conference calls for her client; according to the Justice Department, this constituted the providing of "communications equipment" to a terrorist group. Stewart is further alleged to have served Rahman’s organization in a "quasi-employee" capacity. Judge John Koeltl of the federal district court in New York dismissed the charges on July 22, 2003, as a vague and overbroad application of the statute: "[B]y criminalizing the mere use of phones and other means of communication, the statute provides neither notice nor standards for its application." Moreover, he wrote, "the Government fails to explain how a lawyer, acting as an agent of her client, an alleged leader of an FTO [foreign terrorist organization], could avoid being subject to criminal prosecution as a ‘quasi-employee’ allegedly covered by the statute."

Judge Koeltl clearly realized the level of discretionary power the "quasi-employee" label puts in the hands of prosecutors. "[W]hen asked at oral argument how to distinguish being a member of an organization from being a quasi-employee, the government [prosecutor] initially responded, ‘You know it when you see it,’" Koeltl observed. The chilling effect on both speech and effective legal representation is obvious.

Prosecutors responded to Koeltl’s ruling by reframing the indictment, charging Stewart under a different provision of the "material support" statute. According to the new indictment, the fact that Stewart read correspondence to her client and released press statements on his behalf constituted provision of personnel to a terrorist conspiracy. It remains to be seen whether the revised indictment will stand.

A LONG AND complex assault on liberty is under way — an assault aimed not at the fringes of liberty, but at its core: the rights that form the threshold between freedom and tyranny, the rights that allow citizens to push back against government excess. And if we let that assault push us across this threshold, we will find it very difficult to return, for we will have lost the essential tools that free people have historically wielded.

Even those who shrug at lost liberties — who believe that it’s worth paying the price of core freedoms to defeat terrorism — would be wise to worry about these developments. After all, one consequence of free speech is that it makes it easier to detect and reverse grave errors. If the head of state is indeed a fool, to use Nikita Khrushchev’s worrisome but instructive joke, national security is hardly enhanced by hiding his mistakes.

Harvey A. Silverglate is a regular Phoenix "Freedom Watch" contributor, an attorney with Boston’s Good & Cormier, and co-author of The Shadow University (HarperPerennial, 1999). Carl Takei is a writer, paralegal, and soon-to-be law student at Boston College Law School.