How a University Hijacked a Void in American Counterterrorism Law

"PKK Verbot" by Libertinus is licensed under CC BY-SA 2.0

By | Jordan Cope

October 21, 2020

Jordan Cope is an Islamist Watch Fellow for Middle East Forum, and a law student at the Univ. of Texas.

A protest of PKK. In English the sign reads “PKK: Forbid, Cancel.” 

When it comes to sponsors of terrorism, the last you might suspect would be an American public university. But you might be surprised. Last month, San Francisco State University (SFSU) exposed structural shortcomings in one of America’s most important counterterrorism laws, 18 USC §2993, which prohibits providing material support to foreign terrorist organizations.

On September 23, SFSU’s AMED department sought to host Leila Khaled—a member of the political bureau of the US-designated terrorist organization, the PFLP—over a Zoom webinar. Khaled notoriously hijacked two planes in 1969 and 1970 on behalf of the PFLP, which pledges Israel’s destruction.

While private companies withdrew from streaming the event, first Zoom, and then Youtube, cutting its broadcast Livestream, SFSU clarified its intent to defend its department’s actions, including its president, Lynn Mahoney, who noted that SFSU “remains steadfast in its support of the right of faculty” to teach “free from censorship.”

Through its example, SFSU thus indicated that people could now interact with and streamline terrorists and their messages, thereby challenging American counterterrorism law, which has sought to preempt such interactions by designating and banning terrorist organizations’ media outlets, such as Hezbollah’s Al Manar and Hamas’s Al-Aqsa TV. Further, it was impressed that the private sector had become solely responsible for preempting such future interactions.  

Thanks to SFSU’s example, the University of Hawaii is now trying to host Khaled, whom Zoom has again de-platformed.      

SFSU’s failure to distinguish free speech from illicit action is likely a byproduct of the notoriously liberal Ninth Circuit’s defiance of what Congress intended, a broad scope application afforded to “providing material support,” an interpretation confirmed by the Supreme Court.   

Congress should thus amend §2339 to eliminate any possible leeway that the Ninth Circuit may exploit to normalize and enable domestic relations with terrorist organizations.       

Congress’s intent is clear in §2339, which is to afford “material support” a broad construction and to prohibit all interactions with terrorist organizations and members thereof. Hence, §2339(a) specifies that providing material support can constitute providing practically any matter, including “any property,” whether “tangible or intangible,” expert advice,” or “communications equipment.” By logical extension, material support for terrorism should entail providing a service, especially the premium service, Zoom Webinar, to livestream a terrorist.   

This understanding is reinforced by the fact that Congress affords very few exceptions—two, “medicine or religious materials”—to what when provided can not qualify as “material support.” Hence, Congress intended material support to assume broad applicability. 

The Supreme Court supports this understanding in its majority in Holder v. Humanitarian Law Project, where the plaintiff sought to “train members of [the]PKK… how to use humanitarian and international law to peacefully resolve disputes,” such as by teaching “how to petition various representative bodies such as the United Nations for relief.”

Important to note is that the aid was not meant to aid the violent activities of the PKK, a US registered terrorist organization, but rather to influence it to engage peacefully.

The Court forbade such activity, affording material support a broad scope, and emphasizing, “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”

The Court further refused to find any First Amendment infringement, noting that engaging with terrorists constitutes not speech, but rather action, coordinated communicative activities, which can be prohibited. The Court thus stresses, “Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with or controlled by foreign terrorist groups.”  

Justice Breyer dissents to the construction afforded, confirming its broad nature. He observes, “I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK. Rather, their arguments in this respect are general and speculative. Those arguments would apply to virtually all speech-related support for a dual-purpose group’s peaceful activities (irrespective of whether the speech-related activity is coordinated).”

Despite §2339’s intent being clearly defined, confirmed by the SCOTUS majority, and acknowledged by its dissent, the Ninth Circuit has denied “material support” the broad construction that it was afforded.

Hence, in Al Haramain Islamic Foundation, Inc. v. U.S. Department of Treasury, the court denied any wrongdoing when the Multicultural Association of Southern Oregon sought on behalf of AHIF-Oregon, a designated global terrorist, to “speak[ ] to the press, hold[ ] demonstrations, and contact[ ] the government.”

Its primary reasoning was that “coordinated advocacy,” a term referenced by the SCOTUS’s majority in Holder, assumed a vague construction that it simply could not in good faith apply to distinguish action from speech. 

Hence, the Ninth Circuit punts, “[b]ecause the Supreme Court did not reach the issue of ‘coordinated advocacy,’ we do not know its view on whether this rationale would apply to pure-speech activities like a coordinated press conference.”

The Ninth Circuit’s interpretation may defy that of other Circuits. In United States v. Stewart, the Second Circuit upheld a conviction for an attorney, who while representing the Blind Sheikh, engaged in a variety of activities that may have constituted providing material support. One of these actions, amongst many others, included relaying a message, that the Sheikh had absolved a ceasefire and a facsimile on the Sheikh’s behalf to a reporter.     

While Congress’s intent is self-evident, its bill’s language as an enforcement mechanism lacks bite. In its defiance, the Ninth Circuit has perhaps revealed to Congress the best way to ensure its future compliance. 

That is to clarify what “coordinated advocacy” means. Congress should thus tighten up its language to achieve the effect that it intends, and thus, fill the void recently exposed in one of America’s vital counterterrorism laws. Congress must clarify that material support constitutes coordinated advocacy, which reciprocally entails communication with, streamlining of, or action performed for a terrorist organization. Failure to do otherwise could enable terrorists to recruit, and to relay instructions, thus endangering America’s future.