Guilt by association: how the US Supreme Court let fear overshadow common sense

A recent Supreme Court ruling on the ­material support of terrorist groups ­threatens reporters, NGOs, and the ­pursuit of peace, writes Joshua Hersh.

The passing of Mohammed Hussein Fadlallah, Lebanon's top Shi'ite cleric, earlier this week, was a cause for great sorrow and mourning in Beirut and beyond. It was also an illustrative reminder of the odd compartmentalisation of the American worldview. In Lebanon, Fadlallah was hailed as a transformational figure, a benevolent, religious man with cross-sectarian appeal and a progressive and egalitarian outlook. His fatwas protecting the rights of women - allowing them to fight back against domestic violence, opposing female circumcision, even permitting Shia women to keep their nail polish on while praying - were repeatedly celebrated by a unusually diverse cast of political and religious leaders. In strictly divided Lebanon, there are few individuals whose death could have brought Hizbollah MPs, Sunni ministers, and the Christian president together, as happened on Sunday.

In the United States, on the other hand, Fadlallah will be remembered as something entirely different: a terrorist, whose ties to Hizbollah and early support for suicide attacks made him persona non grata in the West - and, according to some accounts, the target of a CIA assassination attempt in 1985. It is no secret, or surprise, that any link to terrorism - that loaded word - draws a heavy curtain over the American perception of the Middle East. Fadlallah's relationship with leading Hizbollah figures is not in doubt, although the exact dynamic remains unclear; most experts agree that he was not, as is often suggested, the party's "spiritual leader", and certainly not a political or tactical one. In the case of Fadlallah, who died of natural causes at the age of 75, this is merely a passing matter of historical perspective - Fadlallah, those who knew him say, never seemed particularly perturbed that Americans regarded him as a supporter of terrorism.

But the American tendency towards oversimplification, even obfuscation, whenever terrorism comes into the picture can have serious ramifications, too. Just last month, the United States Supreme Court issued a ruling, in the case of Holder vs Humanitarian Law Project, that some lawyers and international activists are calling the most consequential instance yet of fear overshadowing common sense. The Humanitarian Law Project is a non-profit organisation based in California, dedicated to "protecting human rights and promoting the peaceful resolution of conflict". In the course of its practice, its has worked with groups, including the PKK in Turkey, that have been designated as terrorists by the United States. The organisation petitioned the court system to determine whether its work could potentially contravene the government's proscription against providing "material support" to such groups.

"Material support" can be hard to parse. For years, the assumption has been that obvious misdeeds - giving money to help a terrorist organisation to purchase bomb-making equipment - would bring prosecution, as would any other substantive form of contribution that helped a group's illegal aims. (The law also prohibits Americans from offering terrorist groups "training" and offering "expert advice or assistance".) What the leaders of the Humanitarian Law Project wanted to know was whether offering expertise to help a designated group accomplish political and humanitarian aims - such as petitioning the UN for aid for its followers, or teaching non-violent forms of conflict resolution - would also qualify as "material support". As it happens, the terror lists themselves, which are issued by a number of federal agencies, each using separate criteria, have been the subject of constant debate but limited scrutiny. The United Nations and the United Kingdom also keep their own lists of terrorist organisations; only 10 organisations are listed in common by all three.

The US Supreme Court, in an opinion by Chief Justice John Roberts, concluded that it would - even if the expertise offered was intended to encourage an organisation to end its violent ways, or was entirely neutral. (As Justice Sonia Sotomayor, who sided with the dissent, said at one point: "Under the definition of this statute, teaching these members to play the harmonica would be unlawful".) Roberts wrote that any comprehensive engagement with a designated terrorist organisation qualifies as "material support" - no matter what the intent - because it "helps lend legitimacy" to the group.

It was a sweeping decision. As David Cole, the Georgetown professor who argued the case for the Humanitarian Law Project, pointed out in the New York Times, under this interpretation of the law, the former president Jimmy Carter, who has met with and advised Hizbollah (a designated terrorist group, but also a political party in Lebanon) in the course of monitoring elections in Beirut, could potentially be prosecuted. (Although, it is hard to imagine the United States pursuing such a case against a former president.)

Though the court's ruling skirted around such First Amendment issues, activists and NGOs working in the Middle East were quick to observe its possibly dire consequences for international peacemaking. A look at the majority opinion, and the oral arguments before the court, makes it clear that the decision reflected a familiar American oblivion to nuance any time the word "terrorism" makes an appearance. At one point in the oral arguments, Justice Antonin Scalia rejected Cole's efforts to compare the present case with past court rulings about Communist Party membership, arguing that while people joined the Communist Party for "philosophical reasons", because "they subscribed to that philosophy", the same could not be said of the groups America has designated as terrorists. "I don't think that Hamas or any of these terrorist organisations represent such a philosophical organisation," Scalia said.

Such moral certainty is hard to come by in a place like Lebanon, if only because it's a practical impossibility. An aid worker can no more avoid Hizbollah and its influence than he can escape the traffic jams and summer heat. As a result, the need to abide by the United States's strict rules leads to some strange bureaucratic calisthenics: NGOs that work in the south of the country, where Hizbollah is preeminent, are reported to awkwardly subdivide their operations between projects funded by the US - which stick to policy work in Beirut - and those funded by countries like Norway or Sweden, which permit direct contact with Hizbollah. But more often than not, working in the region requires exploiting the grey area where the law has not been strictly defined. As one American NGO worker in Lebanon told me the other day, if Carter could truly be prosecuted for his work, "then we'd all have to go to jail with him".

The Supreme Court's ruling has made that grey area smaller - and it has done so at a moment when there is a growing consensus on the need for dialogue and exchange with groups that Americans consider their enemies. In Iraq and Afghanistan, for instance, the US Army has slowly turned to discussions with former combatants in an attempt to end conflict. And just last month, Ambassador Ryan Crocker, who oversaw the successful engagement with Sunni former combatants in Iraq, told a Senate panel that the US should begin direct talks with Hizbollah, saying that "engagement can be extremely valuable in ending an insurgency".

Engagement is not always pretty, and may not always be the right way to go. Often enough, though, it is, and before it gets the Ryan Crocker imprimatur, it falls to a small vanguard of academics and experts, people easily lambasted in the political sphere but, supposedly, protected constitutionally. These people now face new questions about the legality of their life's work. The ruling, as Andy Carl, one such negotiator, who runs an organisation called Conciliation Resources, wrote in a BBC op-ed the other day, means that "peacebulding work, already dangerous to do and difficult to fund, just got harder".

In his opinion - after criticising the dissenting view for having what he characterised as a naive view toward interaction with terrorist groups - Roberts declared: "Congress and the Executive, however, have concluded that we live in a different world: one in which the designated foreign terrorist organisations 'are so tainted by their criminal conduct that any contribution to such an organisation facilitates that conduct.'" Unfortunately, out here in the rest of the world, it's not nearly so simple.

Joshua Hersh is a journalist living in Beirut whose work has appeared in The New Yorker and the New Republic.