A War Like No Other (29 page)

In saying that the plaintiffs’ claim “cannot prevail,” Roberts did not, from my perspective, mean to qualify his general endorsement of the statute and the necessary implication that the statutory ban on coordinated political advocacy is constitutional. Rather, he was simply refusing to tell the plaintiffs on what side of the constitutional line they fell—that is, whether plaintiffs’ proposed advocacy was coordinated or independent. According to Roberts, plaintiffs “cannot prevail” in their constitutional attack on the ban on coordinated political advocacy because they “do not specify their expected level of coordination with the PKK or [Tamil Tigers] or suggest what their ‘advocacy’ would consist of.”
³²

Even this limited exercise of restraint is questionable, for it contradicts the tradition, earlier recognized by Roberts and well anchored in long-established doctrine,
³³
that calls for an accelerated adjudication of free speech claims. Roberts’s restraint puts on the would-be speakers the burden of either initiating another injunctive proceeding for the purpose of obtaining clearance for their advocacy or running the risk of criminal prosecution and a sentence of up to fifteen years in jail for their advocacy. Under either alternative, speech loses.

The Prism of War?

It will not be news to anyone that the Supreme Court was divided in
Humanitarian Law Project.
What might be news is that the Court was divided 6–3 and that the majority included Justices John Paul Stevens and Anthony Kennedy, often seen as friends of free speech. Neither wrote an opinion, so it is difficult to know the extent to which they subscribed to Roberts’s theory. I can imagine either one of them insisting that Roberts exercise a measure of restraint and fudge the advocacy issue.

Justice Stevens retired shortly after the decision was handed down. He was succeeded by Elena Kagan, then President Obama’s solicitor general, who defended the material support statute before the Court, even as it applied to political advocacy. Her theory—thoroughly rejected by Roberts—was that the material support statute regulated conduct, not speech.
³⁴
She insisted that the word “services” primarily covered activities performed by someone for a designated organization (for example, fixing a computer) and only incidentally regulated the kind of communicative activity in which plaintiffs wanted to engage. However, as Roberts quite properly explained, the mere fact that a statute generally regulates conduct does not insulate it from a
First Amendment attack or require a less stringent standard of review when it is applied to speech.

Kagan took her bearings from
United States v. O’Brien,
³⁵
which upheld a congressional statute that made it a crime to burn a draft card. Roberts disagreed. He thought that the controlling precedent was
Cohen v. California.
³⁶
The statute that
Cohen
involved—one criminalizing breaches of the peace—generally regulated conduct, not speech. Yet the Court set aside a conviction under the statute when it was used to punish political advocacy, specifically when the statute was applied to an individual who protested the Vietnam War by wearing a jacket with “Fuck the Draft” on the back. No one knows what Elena Kagan’s position might be on political advocacy now that her role has changed from advocate to associate justice, though there is no particular reason to be optimistic.

The dissenting opinion in
Humanitarian Law Project
was written by Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Here too there is reason for disappointment. To his credit, Breyer brilliantly and forcefully rejected Roberts’s distinction between independent and coordinated advocacy and, in that context, properly warned of the dangers of using the so-called legitimation rationale—for either construing a congressional ban on advocacy or defending it. What should be of concern to the Court, Breyer said, is the impact of the statute on “advocacy in
this
country directed to
our
government and
its
policies.”
³⁷
Yet the space Breyer created for such political advocacy was, in my judgment, too limited. Driven by the desire to avoid a constitutional conflict, Breyer read the statute to be applicable to political advocacy only when the speaker knows or intends that the speech will assist the designated organization in its violent activities and that assistance is significantly likely to help the organization in carrying out such activities.

Although Breyer’s position is more protective of political advocacy than Roberts’s and for that reason might well be preferred, it too falls short of what the First Amendment requires—incitement to imminent lawless action and a likelihood of success. Breyer said that when the requisite knowledge is present, political advocacy on behalf of a designated organization bears “a close enough relation” to violent activities to warrant criminalization.
³⁸
He cited
Brandenburg
at this point in his argument,
³⁹
but that strikes me as a misreading and a misappropriation of that decision, for
Brandenburg
is predicated on the distinction between incitement and general advocacy of violence and confines the censor to prohibiting incitement. A statement that extols the PKK and its use of violence may make the PKK’s violence more likely, even significantly more likely, and that may be the intention of the speaker. But without a further showing, such an utterance—however detestable it may be and however close it may be to incitement—is not an incitement but rather general advocacy and thus should be treated as part of the domain of public discourse that is protected by the First Amendment.

The limited nature of Breyer’s dissent did not placate Roberts. He implied that Breyer was naïve and chided him for not addressing “the real dangers at stake.”
⁴⁰
In the context of discussing plaintiffs’ interest in being allowed to train members of the designated organization to work with the United Nations, Roberts said, “In the dissent’s world, such training is all to the good.”
⁴¹
He then continued, “Congress and the executive, however, have concluded that we live in a different world.”
⁴²
In this world, foreign terrorist organizations are “so tainted” that any contribution to such an organization—even political advocacy or training members of the organization to work with the United Nations—should be criminalized.
⁴³

Of course, Breyer is as aware of the dangers of terrorism as is
Roberts. He made a concession to free speech, and although his was more generous than Roberts’s, it was not large enough to satisfy the requirements of the First Amendment. Roberts made a distinction between independent and coordinated advocacy and, in my view, allowed Congress to criminalize coordinated but not independent advocacy. Breyer rejected the distinction between independent and coordinated advocacy, but then made another distinction—this time between the peaceful and the violent activities of the designated organization. In so doing, he allowed Congress to criminalize political advocacy when the speaker knows that his advocacy will assist the organization’s violent activities. Seen from this perspective, it seems fair to say that both Breyer and Roberts inhabit the same world and are driven by the same fear of terrorism that accounts for the other offenses to the Constitution that have been made over the past decade in the name of fighting terrorism. What is lacking from Roberts’s and Breyer’s opinions—and even more so from Elena Kagan’s brief for the government—is an abiding commitment to the kind of political advocacy that is the essence of a vibrant democracy.

We have long become accustomed to sacrifices of freedom in times of war,
⁴⁴
and an awareness of this tradition might temper the concerns that the
Humanitarian Law Project
decision engenders. Indeed, Roberts invoked and sought to exploit this tradition. In a coda, he quoted from the Preamble and the writings of James Madison to emphasize the need to “provide for the common defense” and to protect “against foreign danger.”
⁴⁵
Roberts also reached back into history and made a reference to World War II when he dismissed Breyer’s willingness to assume that Congress had an interest in allowing Americans to train foreign terrorist organizations to use peaceful means of dispute resolution. Roberts said that such an assumption is as plausible as assuming Congress concluded that “assisting Japan on that front might facilitate [the United States’] war effort.”
⁴⁶

This way of framing the issues in
Humanitarian Law Project
seems inapposite. Over the last decade, we have grown accustomed to thinking of the fight against terrorism as a war, and this has been as true for Obama’s tenure as it was during Bush’s. Although President Obama has been meticulous in avoiding the use of the phrase “War on Terror,” he has repeatedly declared that we are at war with al-Qaeda. The talk of war by both President Bush and President Obama stems from the fact that the military has been deployed to achieve national objectives—to capture and, if need be, kill the fighters and leaders of al-Qaeda. Yet this military campaign against al-Qaeda does not entail the exceptional circumstances that history indicates or that we ordinarily imagine when we think of war and use it to excuse or justify the adjustment of basic liberties.

For one thing, al-Qaeda does not pose a threat to the survival of the nation in the way that Japan or our other enemies did in World War II.
⁴⁷
Moreover, in contrast to other military campaigns that we have conceived of as war, there are no bounds—either geographic or temporal—to the fight against al-Qaeda. Al-Qaeda is an international organization that operates in secret. As a result, all the world might be seen as a battlefield, and the battle may go on forever.
⁴⁸
Osama bin Laden is now dead, but other leaders have emerged and will continue to emerge, and local cells appear able to operate on their own.

The statute at issue in
Humanitarian Law Project
reaches al-Qaeda—it is one of about fifty terrorist organizations on the secretary of state’s list. But, as I mentioned before, this statute is not confined to al-Qaeda and, in fact, extends to such organizations as the PKK and the Tamil Tigers, which makes the talk of war and the references by Roberts to World War II seem even more strained. These organizations pose no threat to the survival of the United States—the threat that, more than any other, makes war so exceptional. Isolating and starving foreign
terrorist organizations like the PKK and the Tamil Tigers may protect individual Americans traveling abroad and serve foreign policy objectives such as improving our relationships with our allies, but these ends, though surely legitimate, do not have the transcendent character of the one we usually associate with a war and which might possibly justify sacrificing a constitutional liberty—the survival of the nation.

In addition, to treat any military campaign that might be undertaken by our allies against designated terrorist organizations such as the PKK or the Tamil Tigers as a war of the United States defies the bounded quality of a war, even more so than the military campaign against al-Qaeda. These organizations may have a life as long as al-Qaeda’s, but even if they are annihilated, as the Tamil Tigers were, similar organizations will inevitably arise somewhere in the world. Throughout history, there has always been one group or another prepared to use violence to pursue its aims. Of course, organizations such as the PKK and the Tamil Tigers are more geographically bounded than al-Qaeda, but the ban on advocacy that the Court upheld applies to any organization in the world that the secretary of state, in his or her wisdom, is prepared to designate.

Given these considerations, it is wrong to view the material support statute and its ban on political advocacy through the prism of war or to be sanguine about the Court’s willingness to sacrifice our liberty by upholding it.
Humanitarian Law Project
cannot be defended, as Roberts would have it, as a temporary concession to the felt necessities of a war against an enemy that puts the very survival of the nation at risk. The ban on political advocacy that the Court sustained will, I fear, soon become a permanent feature of ordinary life in America and may even radiate out to spheres unconnected to the fight against terrorism and in that way alter the very architecture of the doctrinal edifice that has long protected freedom of speech.

Prologue to Chapter 9

Trevor Sutton

Although Obama’s foreign policy has not been the defining element of his presidency, as it was with Bush, neither has it simmered on the back burner. Obama, like Bush, is a war president, and his national security agenda in particular has been a reliable source of controversy. Many aspects of that agenda have drawn criticism, but a few stand out as especially contentious. In 2009, the debate over the fate of Guantánamo and the trials of key figures behind the September 11 attacks dominated headlines. In 2011, the killing of Anwar al-Aulaqi sparked a heated national conversation about drones. In 2012, the Obama administration’s response to a terrorist attack on the U.S. embassy in Benghazi, Libya, spawned a litany of conspiracy theories and attack ads.

In 2013, what may be the fiercest debate of them all broke out. After Edward Snowden, a former National Security Agency contractor, disclosed that the agency had been collecting vast quantities of data related to electronic communications, the media, privacy-rights groups, and legislators of both parties raised alarms over the scope of communications surveillance
undertaken by the executive branch in the name of intelligence gathering. Also subject to sudden scrutiny were the judges of the Foreign Intelligence Surveillance Court, who, the public learned, had authorized the NSA surveillance. Unusual among Obama’s national security controversies, some of the sharpest criticism of his administration came from legislators who had been reliable allies, such as Senators Ron Wyden of Oregon and Mark Udall of Colorado.