By Thomas R. Pickering and Nancy Soderberg, Special to CNN
Editor’s note: Thomas R. Pickering served as Under Secretary of State for Political Affairs and as Ambassador and Representative to the United Nations. Nancy Soderberg is a former Deputy National Security Advisor and Ambassador to the United Nations. Both are members of The Constitution Project’s Liberty and Security Committee. The views expressed are their own.
Last Friday marked the anniversary of the Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project in which the Court held the sweeping view that “material support” to terrorist organizations included even support aimed at promoting peace. That means the U.S. government can criminally prosecute groups or individuals for facilitating peace talks, offering training in conflict resolution, or teaching a course on humanitarian law, simply because these activities involve members of a group on the State Department’s list of foreign terrorist organizations. That undercuts America’s security – and the Obama administration can and must fix it.
Of course, true “material support” for terrorists – sales of arms and supplies, military training and other activities that truly aid terrorists and make their criminal acts possible – must be subject to vigorous prosecution under the law. However, very different efforts by non-governmental groups and individuals to guide and persuade members of an armed group to pursue lawful and legitimate avenues to address their grievances should not be subject to potential prosecution. Yet, today they are.
The Court’s overly broad interpretation of this language has already had a dramatic chilling effect on peacebuilding activities across the globe. For example, the Carter Center wanted to create a student “parliament” among the universities located in Gaza to train students to resolve disputes through peaceful dialogue rather than violence, but it did not do so out of fear that some of the students might later turn out to be members of listed groups. In Sri Lanka, the Alliance for Peacebuilding wanted to work with a former U.S. ambassador to that country to create dialogue between the Sri Lankan government and the Tamil Tigers, but it did not because the communications needed to bring the latter group into the discussion are prohibited under the material support laws. Similar examples exist.
As former ambassadors involved in previous peace negotiations, we know there are certain conflicts in which government officials cannot engage directly because of the myriad political considerations they must balance. Peacebuilding organizations and individuals, independent from government, are free of these political constraints and so are unique in their ability to act as neutral conveners who can foster different thinking key to breaking a deadlock in a conflict. For decades, organizations and private individuals have served in this capacity, providing this kind of critical “Track II” diplomacy that helped to bring peace and security to the United States and abroad. Yet, since the Court ruling, these organizations and individuals are now at risk of being prosecuted as criminals.
Luckily, there is a simple way to fix this problem. The law that has been interpreted to bar peacebuilding also contains a provision giving the Secretary of State the power to exempt expert advice, training, and personnel from the material support prohibitions in instances where the Secretary finds that these activities will promote peace and do nothing to further terrorism. With the concurrence of the Attorney General, Secretary of State John Kerry should sign an order exempting these limited but critical peacebuilding efforts from the material support clause, paving the way for them to continue their critical efforts free from the threat of prosecution.
We are proud to join a number of former government officials and religious leaders in sending a letter to Secretary Kerry urging him to act quickly to remove this barrier to peacebuilding. As we note, “Doing so would open the door for professional peacebuilders to fully engage in helping to end armed conflicts and suffering around the world, while making the U.S. safer.”
Peacebuilding organizations follow in a long American tradition of diplomacy and respect for the rule of law. We believe these initiatives are crucial for a peaceful world in the 21st century. Our nation and the world would be much safer for it.