Do US counterterrorism laws undermine peacebuilding?

What is the line between talking to a terrorist group in the name of peace versus supporting them? That’s the question that for years has pitted many civil society organizations against the U.S. government — and the debate is about to get more heated. In 2010, the U.S. Supreme Court barred a group of nongovernmental organizations from providing U.N.-designed conflict resolution training to members of the Kurdistan Workers Party and the Liberation Tigers of Tamil Eelam, or Tamil Tigers, both listed as foreign terrorist organizations by the U.S. government. After a lengthy legal battle, the court ruled that “training” and “expert advice,” even to promote peace, constituted “material support” to designated terrorists in violation of U.S. law. Today, the outcome of this case, Holder v. Humanitarian Law Project, continues to cause uproar among civil society activists for allegedly impeding First Amendment rights and grassroots peacebuilding in the world’s most fragile contexts. And now a new case could broaden the counterterrorism legal framework that, critics say, would further constrain free speech. In 2023, the Foundation for Global Political Exchange, a U.S.-based NGO that facilitates dialogue on the core issues in the Middle East, proposed a forum in Beirut including a wide range of influential players from the region with diverse political views. Among them were diplomats, academics, journalists, students, politicians, as well as members of Hezbollah and Hamas — both also listed as foreign terrorist organizations by the U.S. government. Launched in 2008 against the backdrop of the U.S. invasion of Iraq and the onset of the war on terrorism, the central ethos of the Foundation for Global Political Exchange’s dialogue programs is understanding the views of those you may disagree with, or even abhor — especially if those individuals are highly influential in the complicated political landscape of the region. “We think that it’s important if you’re going to construct good policy, good journalism, good academic work, that you know your adversaries as deeply as you can,” said Nicholas Noe, the co-founder and director of the Foundation for Global Political Exchange. “That's the best way to lead to both better understanding, but also … more peaceful outcomes,” he said. But the Biden administration barred the designated individuals from attending, saying the forum would provide a “platform for them to speak” in violation of U.S. law. “We did not expect the Biden administration to hand back to us a letter with such sweeping abrogation of basic First Amendment rights,” Noe said. The Foundation for Global Political Exchange and its partners at the Knight First Amendment Institute at Columbia University are now suing the U.S. government, claiming violations of the First Amendment and suppression of political speech. The results of the case, they said, could have wide-ranging implications for freedom of speech, including the ability of the media to feature the views of individuals labeled as terrorists by the U.S. government, as well as peacebuilders seeking to understand what drives those deemed “the enemy.” Defining the scope For decades, the U.S. has dealt with terrorist organizations by taking a hard line, heavily militarized strategy designed to isolate and eliminate these groups. This approach led to sweeping counterterrorism laws, enforced by a web of government agencies, which strictly prohibit aiding groups officially designated by the U.S. government. Material support to terrorist groups is prohibited under criminal law and sanctions, but neither ruleset provides clear guidance. Holder v. Humanitarian Law Project defined “material support” to include “training” and “expert advice,” expanding the framework beyond the typical scope of providing terrorist groups with finance and equipment. Alex Zerden, an attorney and former U.S. Treasury Department official who is now the founder and principal of the consulting firm Capitol Peak Strategies, elaborated on the rationale of Holder v. Humanitarian Law Project ruling: “You’re providing in-kind support that frees up other resources to allow them to engage in their violent acts,” even if that in-kind support is meant to resolve the conflict. Yet under sanctions regulations, “services” remain especially vague. “They bar services of any nature whatsoever,” said Joshua Andresen, the general counsel and vice president at the Foundation for Global Political Exchange, who is also a professor of national security law at the University of Surrey and formerly an attorney and adviser at the U.S. Departments of Treasury and State. “In principle, anything, anything you do that is not just accidentally bumping into a designated person on the street and saying hello could be a service,” he explained. In the Foundation for Global Political Exchange’s case, the U.S. Treasury Department seeks to include a “platform to speak” as a “service” prohibited under sanctions. The U.S. Departments of Treasury, State, and Justice, all involved with either the designation or enforcement of counterterrorism measures, declined to comment on this article after repeated requests. Despite his disagreement, Andresen is sympathetic to the government’s position. “They’re worried about recruitment. They're worried about the designated individual terrorists conducting, you know, intelligence on attendees. They’re worried about fundraising,” he said. “You want to limit that activity, but then you can’t do that in such a way that it cuts off dialog altogether.” But, according to Andresen, including designated speakers at a political dialogue forum remains the “right tradeoff” and is “part of Freedom of Speech, part of a free press, part of the society that, you know, we’re supposed to have in the United States.” The Foundation for Global Political Exchange is hopeful for a positive ruling, and it expects the final ruling this fall. “How far does Humanitarian Law Project reach in limiting speech has been an open question,” Andresen said, “Our case would at least, if successful, claw back some of that space.” The chilling effect In many conflict zones, NGOs are seen as impartial players, which civil society advocates argue makes them integral to conflict resolution. “Peacebuilding organizations have access to people that states might not, or the U.N. might not,” said Megan Corrado, an attorney and senior director of policy and advocacy at Alliance for Peacebuilding, a Washington, D.C.-based NGO that supports a global network of peacebuilders. According to her, all stakeholders must be involved: “Or else you’re not going to actually address the grievances that caused the conflict in the first place.” However, the vague terminology over what constitutes support to terrorist groups causes confusion and a chilling effect in the NGO sector in places where designated groups hold significant influence, such as Lebanon, Palestine, and Syria. “You see a reluctance to even try to do programming in some of these places where [foreign terrorist organizations] are active,” Corrado said. She described situations where peacebuilders were unable to take former terrorist group fighters off the field and into disarmament, demobilization, and reintegration programs to help get them back into society because of broad material support prohibitions. According to Zerden of Capitol Peak Strategies, the material support prohibitions are designed to deter specific activities that deprive terrorist organizations of resources. However, the vague language causes outrage among civil society groups that believe it undermines their work. “Peacebuilding should not have to wonder how to interpret the definition,” said Ashleigh Subramanian-Montgomery, the senior director of policy and advocacy at the Charity & Security Network, a Washington, D.C.-based resource center that specializes in the impact of national security laws on civil society. “It’s intentionally vague, honestly,” she added. “It’s putting the risk back on the NGO.” The U.S. government understands the challenges NGOs face and offers limited exemptions, but a disconnect between enforcement agencies undermines their ability to address the issue uniformly. For example, the Departments of Treasury and State maintain their own distinct lists, each with separate rules. “If you have trust in the peacebuilders that you are supporting … who are doing a great job trying to build peace in their country, please give them the trust to the maximum.” --— A local NGO leader The U.S. Treasury Department does exemptions for many of those listed under their sanctions programs if the work promotes democracy, peace, or other development objectives. But according to Andresen, the Foundation for Global Political Exchange’s political dialogue programs do not qualify because they do not clearly serve the “general benefit of the citizens of a particular country,” he said. Meanwhile, there is no clear exemption for those designated as “foreign terrorist organizations” by the State Department. Instead, the Department of Justice, which oversees enforcement, declared in 2011 that it has never “prosecuted an individual or group for a legitimate effort to persuade others not to engage in violence.” But this public statement is at odds with Holder v. Humanitarian Law Project, which barred that exact activity. There is sometimes crossover between the lists, with groups appearing on both, meaning Treasury permits the same activities that Justice does not. The chilling effect is arguably most pronounced for local NGOs, which often cannot afford dedicated compliance staff or legal counsels to navigate complicated U.S. laws. Yet the motives driving individuals to join extremist groups are nuanced with precarious socioeconomic conditions — a situation typically best understood by local groups. One leader of a local peace-building NGO in Syria, who requested to remain anonymous due to security reasons, described how some of the people they work with are teenagers who have been threatened or pushed by economic desperation to join terrorist groups but who do not actually believe in the extremist ideology. “Nobody opened to them any kind of option in life other than to be recruited by these armed groups,” they said. “Someone needs to speak to these people. The more we isolate people … the more extremist they get.” Their NGO largely avoids U.S. funders because of the limitations caused by sweeping counterterrorism measures, the leader said, noting that U.S. regulations are much stricter than European or Canadian counterparts. According to them, the issue is rooted in a failure to localize. U.S. donors do not trust local peacebuilders to navigate sensitive conflicts and engage with the communities in ways they know are effective at achieving peace. “If you have trust in the peacebuilders that you are supporting, if you have trust with the women groups who are doing a great job trying to build peace in their country, please give them the trust to the maximum,” the local NGO leader said.