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Terrorism Is Free Speech
By Michael Radu
FrontPageMagazine.com | February 3, 2004
Freedom of speech permits supporting 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 infamous 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.
Judge Audrey Collins, who was appointed to the court in 1994 by Bill Clinton, is a product of Affirmative Action. Her decision follows a familiar pattern of California jurisprudence that the Supreme Court routinely overrules in some 80 percent of the cases, far more than for any other court. Indeed, California judges are the ones who declared that God has no place in the Pledge of Allegiance and who have twice attempted to cripple the nation’s already limited legal defenses against terrorism.
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
The PKK has always been defined not by Kurdish nationalism but by Marxism. Founder Abdullah Öcalan 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.â€
The Party’s internal structure also demonstrates its Leninist character. Öcalan’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 Öcalan 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 Öcalan as “Dear President Öcalan†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.â€
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.
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