I recently gave a public lecture at a law school in Chennai, the capital of the state of Tamil Nadu in southern India. I had been invited to speak about the relationship between the law of armed conflict and international human rights law in situations of armed conflict or occupation. The audience was highly engaged and asked a number of pointed questions. Several attendees asked for my legal opinion about the situation in Sri Lanka, and in particular about the application of international law to the interaction between the Liberation Tigers of Tamil Eelam (LTTE) and the state's forces.
In the midst of my comments, it suddenly occurred to me that I might be dangerously close to committing a federal crime. I remarked to the questioners that I assumed that they were not members of the LTTE, and explained why this was relevant. They, of course, were aghast at the notion that a U.S. citizen could be prosecuted for lecturing about international law, and especially while doing so outside the territory of the U.S. I then pointed out that the legislation was not limited to U.S. citizens, and that they would also be potentially criminally liable under U.S. law for teaching any subject to members of the LTTE.
The federal crime of "providing material support or resources to designated foreign terrorist organizations" is a criminal law of extraordinary breadth of scope, both in terms of the range of conduct it captures as well as its jurisdictional sweep. (1) The constitutionality of its criminalization of speech, and in particular, the teaching of international law to foreign terrorist organizations (FTOs) was upheld in the case of Holder v. Humanitarian Law Project. (2) Can this be consistent with the international obligations of the United States? To what extent is the issue of its accordance with international law relevant to the interpretation and application of the law in the context of the U.S. legal system?
The statute, as interpreted by the Court, is in tension with a number of international obligations binding on the United States. (3) This article focuses on two tensions in particular. The first is the tension between the scope of conduct captured by this law and the international legal obligation to respect the fight to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights. The second is the tension between the statute's jurisdictional reach and the rules of international law pertaining to jurisdiction.
This article examines these tensions and analyzes their implications with respect to the proper interpretation and application of the law, and to the international legal responsibility of the United States.
OVERVIEW OF RELEVANT PROVISIONS OF THE STATUTE
The criminalization of providing material support to foreign terrorist organizations is set forth in 18 U.S.C. [section] 2339B. The conduct criminalized by the statute consists of "[k]nowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so." (4) The statute stipulates that a person "must have knowledge that the organization is a designated terrorist organization ... that the organization has engaged or engages in terrorist activity ... or that the organization has engaged or engages in terrorism...." (5) In addition to such conventional forms of support as funds and material goods, the definition of "material support or resources" includes a broad range of activities, including some consisting solely of speech. In particular, "training" and rendering "expert advice or assistance" are expressly criminalized. (6)
Seemingly conscious of potential constitutional infirmities, the statute sets forth a rule of construction to prevent First Amendment conflicts. It states, "nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States." (7)
The statute's jurisdictional reach is similarly broad. Subparagraph (d)(2) of the statute makes clear that it applies beyond the territory of the United States. (8) The legislation expressly provides for extraterritorial jurisdiction to overcome any presumption that its application would be limited to conduct committed within the United States. (9) Just how widely that extraterritorial jurisdiction sweeps is set forth in the preceding subparagraph. There is jurisdiction over an offense if, inter alia, the offender is a U.S. citizen or resident, the conduct occurs in whole or in part in the United States, the offense occurs in or affects interstate or foreign commerce, or the offender is brought into or found in the United States, (10) even if the conduct required for the offense occurred outside the United States. Jurisdiction based on the mere presence of the offender on U.S. territory is essentially a form of universal jurisdiction, as it makes no reference to location of the crime, or to nationality of perpetrator or victim, or indeed to any other interest specific to the United States. (11)
Notably, the Congressional findings accompanying this law root Congress' authority to enact this statute in its power to "punish crimes against the law of nations and to carry out the treaty obligations of the United States." It also sets forth the finding that "international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts...." (12) The findings also provide a rationale for the broad sweep of the term "material support." In particular, Congress finds that foreign terrorist organizations "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." (13)
THE SUPREME COURT'S RELEVANT HOLDINGS IN HOLDER
In Holder, the U.S. Supreme Court upheld the constitutionality of [section] 2339 as applied to training and rendering expert advice or assistance, even when an offender does not intend to further the unlawful aims of the FTO. In this pre-enforcement challenge, the Court found, in particular, that [section] 2339's criminalization of speech, as applied to the plaintiffs' planned activities, did not (would not) violate their First Amendment rights.
The plaintiffs, U.S. citizens and organizations, sought to engage in a variety of activities in support of two designated FTOs: the LTTE and the Kurdistan Workers' Party or Partiya Karkeran Kurdistan (PKK). Among those planned activities was the provision of training on how to use international law "to peacefully resolve disputes." (14)
In analyzing whether criminalization of this activity would run afoul of the First Amendment protection of freedom of speech, the Court seemed to hold that the relevant standard was strict scrutiny, (15) ordinarily requiring that the criminalization of speech be necessary to further a compelling government interest. The articulation of the Court's reasoning, however, casts some doubt as to whether this was the standard the Court actually applied. (16) In any event, the Court found that the government's interest was sufficiently compelling, noting that all parties agreed "that the Government's interest in combating terrorism is an urgent objective of the highest order." (17) It also found that the determination by the political branches that this criminalization of speech was necessary was "adequately substantiated." (18) At the same time, as the dissent points out, it is not altogether clear that the majority conducted its own assessment of whether or not the criminalization of this speech was necessary. (19)
In assessing whether the statute passed constitutional muster as applied to plaintiffs' planned training on how to use international law to peacefully resolve disputes, the Court relied on the possibility that such information could be used by the organizations "as part of a broader strategy to promote terrorism." (20) They could, for example, invoke international legal processes to "buy time to recover from short-term setbacks, lull opponents into complacency, and ultimately prepar[e] for renewed attacks." More generally, the skills acquired could enable them to use the international legal system "to threaten, manipulate, and disrupt." (21) The Court did not address the issue of the statute's jurisdictional reach. (22)
THE INTERNATIONAL OBLIGATION TO RESPECT THE RIGHT TO FREEDOM OF EXPRESSION UNDER THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
The right to freedom of expression is not absolute. Indeed, every legal system in the world recognizes the legality of restrictions on the exercise of this right. As Humanitarian Law Project demonstrates, even the United States, which is generally seen as providing extraordinarily broad protection for this right, subjects it to certain limitations.
The United States is a State Party to the International Covenant on Civil and Political Rights (ICCPR or "the Covenant"). (23) Article 19(2), in conjunction with Article 2 of the Covenant, requires parties to "respect and to ensure" the right to freedom of expression, which includes "freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice...." (24) Recognizing that exercise of this right carries with it "special duties and responsibilities," Article 19(3) permits States Parties to impose restrictions necessary to meet certain specified aims. (25) These restrictions "shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals." (26) By its terms, Article 19(3) permits only those restrictions that...