Foreign Policy Research Institute A Nation Must Think Before it Acts Terrorism Is Free Speech

Terrorism Is Free Speech

Freedom of speech permits the support of terrorism, as long as you are only providing “expert advice and assistance” to groups the federal government has designated as “foreign terrorist organizations.” So says a California district judge, in a decision that can only be disheartening for those on the frontlines of the struggle against terrorism. We can hope the decision will be set aside on appeal, but it nevertheless shows how vulnerable our legal instruments are against international terrorism— and how powerful the influence is of those who would dismantle existing Homeland Security legislation.

The Decision

In a decision released January 26, Federal Judge Audrey B. Collins (Central District of California), ruled in Humanitarian Law Project, et al. v. Reno et al. that the U.S. Departments of State and Justice cannot stop groups from providing “expert advice and assistance” to either the Kurdistan Workers’ Party (PKK) in Turkey or the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka.

The plaintiffs had brought their suit in 1998, after passage of the Anti-Terrorism Law, most of which was initially upheld by Judge Collins. However, she agreed with the plaintiffs that the prohibition against providing “expert advice and assistance” was “impermissibly vague.” The newest decision comes in a new phase of the case based on the post-9/11 Patriot Act’s similar prohibitions. “The USA PATRIOT Act places no limitation on the type of expert advice and assistance which is prohibited and instead bans the provision of all expert advice and assistance regardless of its nature,” said Collins. She specifically cited the provision that makes it a crime to provide personnel and training to designated terrorist groups as unenforceable, saying that it was sufficiently vague to raise First and Fifth Amendment issues. (Surprisingly, she rejected arguments by the plaintiffs that the law was too general and that it gave the Secretary of State “virtually unreviewable authority” to designate a group as a foreign terrorist organization.)

As the New York Times noted[1], Judge Collins is the first federal judge actually to strike down part of the Patriot Act. But this is not the first legal challenge to aspects of the war on terror. California courts have made earlier attempts to weaken anti-terrorism legislation introduced in 1997. In 1998, the Ninth Circuit Court of Appeals ruled that fundraising for the lawful activities of a foreign terrorist organization is protected by the First Amendment, if there is no specific intent to further the group’s illegal ends.[2] That decision, resulting from a complaint by pro-terrorist Arab groups, would have allowed Hamas, Palestinian Jihad and others to openly raise money in the United States. Had it not become moot after 2001, the decision also would have allowed most of those tried or indicted since 9/11 to remain free, and the terrorist-funding Islamic “charities” the Bush administration has closed down to remain open and active.

The Plaintiffs

The plaintiffs in the case were suing for the right to provide support “to the political and humanitarian activities” of the PKK and LTTE. One of them, the International Educational Development-Humanitarian Law Project (IED-HLP), has long provided aid to the PKK, and was joined in the suit by five Tamil organizations who aided the LTTE.

The IED-HLP said that, since 1992, it had conducted fact-finding investigations of human rights violations by the Turkish government against the Kurds, published reports on their findings that were supportive of the PKK, and provided training to the PKK on how to advocate for their “rights” under international law. The five Tamil organizations support the LTTE with donations of food, clothing, books and educational materials for its orphanages, refugee relief centers, and schools. These groups also wanted to make cash contributions to the LTTE to finance both its 1997 lawsuit challenging its terrorist designation and the distribution of LTTE literature in the United States.

So who are the terrorist beneficiaries of this court case, the PKK and LTTE? Both the PKK (now going under the name of the Kurdistan Freedom and Democracy— KADEK) and the LTTE are separatist, terrorist, Marxist organizations, whose actions have so far led to more than 100,000 deaths over the past two decades.


The PKK has always been defined not by Kurdish nationalism but by Marxism. Founder Abdullah Ocalan was half-Turkish, as he himself reminded his Turkish commando captors in Kenya in 1999; its other early leaders included ethnic Turks as well as Kurds, but no “workers.” In the “Party Program of the PKK,” adopted at the Fifth “Victory” Congress of January 1995, the organization portrays itself as the vanguard of the new global socialism movement. On the subject of the decline of the USSR, it claimed that Soviet socialism was a rough, wild, even “primitive” deviation. By contrast, its own approach to socialism was “scientific and creative.”

The Party’s internal structure also demonstrates its Leninist character. Ocalan’s continuous control was only obtained by ruthlessly eliminating challengers, “the most deviated” of whom, he says, “could only be neutralized.” Even journalist Chris Kutschera, a sympathetic but knowledgeable analyst of the PKK, has acknowledged that five or six of the Party’s original leaders were killed. Three others committed suicide, and others have been driven underground.

After training in PLO-run international terrorist camps in Lebanon, the PKK opened its military campaign against the Turkish state in 1984, largely from its secure bases in Syria. By 1990–93 it was able to take advantage of the post-Gulf War environment (specifically, the power vacuum created by the de facto creation of an autonomous Iraqi Kurdistan), and it became a real threat to Turkey’s territorial integrity. The PKK engaged in a massive rural insurgency in southeastern Turkey, which, by 1999, resulted in some 30,000 fatalities. These deaths were mostly insurgents, civilians and anti-PKK village guards— and almost all were Kurds. Indeed, far more Kurdish civilians have been killed by the PKK than Turks, some as reprisals for suspected collaboration with Ankara, others during clashes with rival clans. Kurds in Europe and Lebanon who disagreed with Ocalan were murdered. Throughout the 1990s the PKK in Iraq enjoyed Saddam’s support and regularly engaged in clashes with local Kurdish forces.

At its Fifth Congress the PKK decided to engage in suicide bombings and, by 1997, the group had formed “Suicide Guerrilla Teams.” The early “volunteers” came from the most vulnerable segments of society: young, impoverished, poorly educated women. The group’s ambitions went even further: in November 1996, thirteen PKK members arrested on the Syrian border with the Hatay Province were found to possess antimony, which they thought was uranium.

PKK operations in Western Europe are led by relatively well-educated people. They enjoy support from governments and groups in Western countries (Germany, Benelux, Scandinavian states), local governments such as the Basques in Spain, prominent individuals and member parties of government coalitions in Italy, France, Russia, and Greece, and most of the remnants of Germany’s and Italy’s Marxist terrorists. These latter occasionally participated (and were killed or captured) in PKK combat operations.

In addition to its key role in PKK propaganda and political support, Europe was and still is the major source of PKK funding. European assessments of the PKK’s income generally placed it at between $200 and $500 million a year for the mid-1990s. The German government has asserted that the PKK collects millions of deutsche marks at its annual fundraising events, and some sources have estimated PKK’s annual income from these along with drug trafficking, robberies, extortion, and emigrant and arms smuggling at $86 million (U.S.). Considering the range of PKK drug trafficking in Europe (Germany, France, Denmark, Romania, Switzerland, Belgium, Netherlands), the group is wealthy indeed. None of this dissuaded such self-proclaimed “human rights” militants as Danielle Mitterand, the radical widow of former French president, from addressing Ocalan as “Dear President Ocalan” in a 1998 letter which ended with: “Looking forward to an initial result, rest assured, Abdullah, that I am committed to be beside you in the bid for peace, Sincerely yours, Danielle Mitterand.”

This, then, is the organization the HLP managed to get Judge Collins to allow open support for in the United States in the name of the First and Fifth Amendments. Karen Parker of IED-HLP, an NGO accredited by UNESCO, has called it “an affront to humanitarian law” that Turkey and the United States designate the PKK a terrorist organization. IED-HLP president Ralph Fertig, a retired administrative law judge with the EEO Commission in Los Angeles, claims that the Kurdish civilian population is being “terrorized” by the Turkish armed forces and that the PKK elements are being denied protections they should have under humanitarian law.

The Liberation Tigers of Tamil Eelam (LTTE)

Ever since the group’s founding in 1976, the LTTE have been led by a high-school dropout and perhaps the world’s most successful terrorist, Velupillai Prabhakaran. His main spokesman is Anton Balasingham, a Marxist and former journalist. The group’s goal is to establish a totalitarian, ethnically pure Tamil state in northern and eastern Sri Lanka.

Whereas the PKK engaged in suicide bombings only sporadically, the LTTE were the world’s main practitioners of suicide terrorism until very recently, when Palestinian groups overtook them. Their more prominent victims include former Indian Prime Minister Rajiv Gandhi in 1991 and Sri Lankan president Ranasinghe Premadasa in 1993. Since 1987, at least 243 Tigers, all members of a special “Black Tigers” unit, have blown themselves up, including 53 women (“the Birds of Freedom,” in LTTE parlance). In addition, just about every LTTE member captured has followed Prabhakaran’s strict orders and swallowed the cyanide pill that is an obligatory part of terrorist equipment.

In the book Inside an Elusive Mind: Prabhakaran. The First Profile of the world’s Most Ruthless Guerrilla Leader (Delhi, 2003), M. R. Narayan Swamy writes that LTTE managers in the Western world use coercion to force Tamils to support them, “keeping tabs on Tamils, their incomes, and names and addresses of their relatives back in Sri Lanka.” Considering the enormous size of the Tamil diaspora in Britain, Canada, Australia, and the fact that many of its members are professionals with high incomes, these are huge sums of money — to which one can add the “taxes” imposed on inhabitants of LTTE-controlled areas in Sri Lanka and international drug and precious stones trafficking. Judge Collins’ decision would open the gates for a flood of legal contributions from the likes of Parker and Fertig, as well.

Where are these contributions going? To LTTE’s de facto statelet in Sri Lanka, where “illicit” sex, smoking, liquor, and homosexuality are forbidden and rules are enforced by a secret police at Prabhakan’s arbitrary will. That is the future of the “free Tamil state” for which the LTTE fights for and in the name of which the group has left 60,000 dead. This is also the militant aim of the Humanitarian Law Project (HLP). Nonetheless, the HLP describes itself as “a Los Angeles-based not-for-profit organization that advocates for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law before the United Nations, where it has consultative status as an NGO, and in other arenas.” Or, alternatively, in a purely Orwellian manner, HLP states it is “a nonprofit organization founded in 1985, dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law” (See it works for the PKK’s right to kill).

The HLP’s Goals

The HLP is open about its goals within the United States. As Parker puts it, “Citizens, wherever they are, pay taxes. Our taxes have gone to perpetrate atrocities and gross violations of human rights and the humanitarian law around the world. Now, as we succeed in unraveling and curtailing that involvement, less tax money is required in those areas.” In fact, by making PKK and LTTE “taxes” [read: extortion and crime proceeds] legal, Judge Collins’ ruling would permit further atrocities by those groups, precisely because “less tax money is required in those areas.”

A Canadian Security Intelligence Service report asserts that a “quasi-diplomatic” LTTE organization had cells and offices in some 54 countries in 1998. The most important are in Western nations with large Tamil expatriate communities, most notably the UK, France, Germany, Switzerland, Canada and Australia. Most LTTE international propaganda tends to be conducted through politically sympathetic pressure groups and media units, the activities of which are coordinated through umbrella front organizations such as the Illankai Tamil Sangam in the United States. The LTTE uses its “peace” slogan to attract NGOs such as the IED, whose support has helped the LTTE internationalize their cause.

The Implications

Nancy Chang, senior staff attorney at the leftist Center for Constitutional Rights (CCR), asserts that the Anti-Terrorism Law effectively intimidates the plaintiffs from exercising their First Amendment rights. She contends that convictions under this law can result in up to ten years imprisonment and substantial fines. The plaintiffs’ counsel, David Cole, a professor at Georgetown University Law Center, was an attorney for one of the al-Arian defendants who was subsequently deported. He explains the legal theory behind the case: “The Anti-Terrorism Law violates a cardinal principle of the First Amendment: it imposes guilt by association, rather than on the basis of one’s acts. The Anti-Terrorism Law makes it a crime to send blankets to a refugee relief center, not because doing so is wrong, but because the government has designated the group that runs the center as ’terrorist.’ This is guilt by association, which is prohibited by the First Amendment.”

This is the faulty logic accepted by Judge Collins.

In a globalized world of mass communications, travel and instant financial transactions, the PKK and LTTE cannot survive without international help. The same can be said of al-Qaeda, Hamas, the Philippines’ New People’s Army, the Basque ETA and many other violent groups. And, as Clausewitz put it, war is the continuation of politics by other means. Giving “political and humanitarian” aid to terrorists is paying for murder.

Prof. Cole’s claim that the Anti-Terrorism Law “imposes guilt by association, rather on the basis of one’s acts” is made in apparent blissful ignorance of such legal concepts as “accessory to crime” or “conspiracy to commit murder.” It makes one wonder about the legal training that is being inflicted on his Georgetown students. According to this kind of thinking, Hitler or Osama bin Laden would be untouchable. After all, neither committed a physical crime. So would Sheik Omar Abdel Rahman, convicted in connection with the February 1993 bombing of the World Trade Center. He was merely a poor, blind old man, obviously incapable of personally inflicting violence.

How much should we excuse supporters’ purported ignorance of the nature of these groups? Ignorance should be no defense here: a search for PKK on Google brings 355,000 results; one for LTTE returns 278,000. These are not exactly obscure sects. In fact, the plaintiffs in Judge Collins’ court made no secret of their being well aware of the nature of these groups.

The IED-HLP or CCR say that the First Amendment is being violated by the application of the Anti-Terrorism Law’s restrictions to legitimate activities of supporters of international human rights. This means that the providers of funds, recruiters, and ideologues of terrorism are immune from punishment, while their homicidal rank-and-file recruits are unpunishable under “human rights” protections (“human rights” that 100,000 victims of terrorism by the PKK no longer enjoy). No one is to blame.

One can only hope that Judge Collins will be overruled, if not by her colleagues on the Ninth Circuit (yes, miracles do happen), then by the Supreme Court. But regardless of what happens, we can draw valuable observations from these developments. The War on Terror has numerous fronts, many of them, unfortunately, within America itself, where sympathetic lawyers, “human rights” militants and inane judges can seriously undermine national security in the name of justice.

[1] “Citing Free Speech, Judge Voids Part of Antiterror Act,” Eric Lichtblau. The New York Times. January 26, 2004.

[2] American-Arab Anti-Discrimination Committee v. Reno, 9th Circuit Court of Appeals, 1997.