This Live Seminar examined how recent legal and policy trends—punctuated by a June 2010 U.S. Supreme Court decision—may alter modalities of humanitarian engagement with non-state armed groups. In Holder v. Humanitarian Law Project, the Supreme Court upheld the constitutionality of a law criminalizing various forms of “material support” to prohibited groups.

1. Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University Criminalizing Humanitarian Engagement? Counterterror Legislation and Humanitarian Action September 16, 2010

2. Criminalizing Humanitarian Engagement? Counterterror Legislation and Humanitarian Action Live WebseminarSeptember 16, 2010 Mr. Claude Bruderlein Director Program on Humanitarian Policy and Conflict Research at Harvard University Ms. Naz Modirzadeh Associate Director Program on Humanitarian Policy and Conflict Research at Harvard University Ms. Elizabeth Holland Program Associate Program on Humanitarian Policy and Conflict Research at Harvard University

4. How may humanitarian mandates drawn from international humanitarian law and human rights law conflict with laws criminalizing “material support” to non-state armed groups?

5. What effect may these American laws have on non-U.S. organizations and individuals operating abroad? How may engaging with prohibited organizations trigger criminal or civil liability?

6. How may laws regulating interactions with non-state armed groups inhibit humanitarian access to vulnerable populations?

7. What implications arise for the core humanitarian principles of neutrality, independence, and impartiality in such contexts? These questions will be explored by reference to contemporary armed conflicts and to the applicable legal and policy frameworks.

8. Panelists David Cole Professor Georgetown University Law Center Ken Wainstein Partner, O’Melveny & Myers LLP Former Homeland Security Advisor Gabor Rona Interim Director Protection of Civilians Section, UN Office for Coordination of Humanitarian Affairs (OCHA)

9. David Cole is a professor at Georgetown University Law Center, a volunteer staff attorney for the Center for Constitutional Rights, the legal affairs correspondent for The Nation, a regular contributor to the New York Review of Books, and a commentator on National Public Radio’s All Things Considered. He is the author of five books. Less Safe, Less Free: Why America Is Losing the War on Terror, published in 2007, won the Palmer Civil Liberties Prize for best book on national security and civil liberties. Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, received the American Book Award in 2004. His most recent book is The Torture Memos: Rationalizing the Unthinkable (Sept. 2009). He has litigated many significant constitutional cases in the Supreme Court, including Texas v. Johnson and United States v. Eichman, which extended First Amendment protection to flagburning; National Endowment for the Arts v. Finley, which challenged political content restriction on NEA funding; and most recently, Holder v. Humanitarian Law Project, which challenged the constitutionality of the statute prohibiting “material support” to terrorist groups, which makes speech advocating peace and human rights a crime. Since 9/11, he has been involved in many of the nation’s most important cases involving civil liberties and national security, including the case of Maher Arar, a Canadian citizen rendered to Syria and tortured there. New York Times columnist Anthony Lewis has called David “one of the country’s great legal voices for civil liberties today,” and Nat Hentoff has called him “a one-man Committee of Correspondence in the tradition of patriot Sam Adams.” David has received numerous awards for his human rights work, including from the Society of American Law Teachers, the National Lawyers Guild, the ACLU of Southern California, the ABA Section on Individual Rights and Responsibilities, and the American-Arab Anti-Discrimination Committee.

10. The Law 18 U.S.C. 2339B makes it a crime for US persons or persons subject to US jurisdiction to provide “material support” to any group that has been designated as a “foreign terrorist organization” by the Secretary of State. “Material support or resources” is defined to include not just money and other financial instruments, but any “service, expert advice or assistance, training, or personnel”. The statute requires no showing that the donor knew or intended that his support would further any unlawful, much less terrorist, activities of the designated group. Question presented: Is it constitutional to make advocacy of human rights and expert assistance in peacemaking a crime under the First Amendment?

11. Designation Criteria The Secretary may designate any group that (1) is foreign; (2) has engaged in “terrorism,” broadly defined under US law to include any use or threat to use a weapon with intent to endanger person or property; and (3) whose activities undermine our “national defense, foreign relations, or economic interests.” Designated groups may in theory challenge their designation, but: The group cannot introduce evidence on its behalf The government may rely on secret evidence to defend the designation The third criterion above is judicially unreviewable.

12. Supreme Court’s Ruling Statute criminalizes speech, and must satisfy “strict scrutiny,” which requires government to show prohibitions are necessary to further a compelling government interest. Court ruled that strict scrutiny was satisfied because: speech advocating human rights might enable terrorist groups to use human rights advocacy to harass; assistance in peacemaking might allow terrorist organizations to delay while preparing for another terrorist attack; and in any event, working with such groups will give them “legitimacy” and “good will,” which will empower them to engage in more terrorism.

13. Implications A crime for President Carter to do election monitoring in Lebanon, because he met with and advised Hezbollah. A crime for HLP to encourage the PKK to pursue peaceful means of resolving their disputes, such as human rights complaints in Geneva. A crime for the New York Times to publish an op-ed by Hamas leader expressing his organization’s views on the Israeli/Palestinian conflict.

14. What Is Not Prohibited Aid provided by persons not subject to US jurisdiction. Aid to non-designated organizations (unless one knows that the organization is a front or intermediary for a designated group). Talking to such organizations, as long as one does not provide any “expert advice” or “training” or a “service” in doing so.

15. Ken Wainstein is a partner in O’Melveny’s Washington, DC office, and a member of the White Collar Defense and Corporate Investigations Practice. He focuses his practice on handling corporate internal investigations and civil and criminal proceedings. Ken spent 19 years in the Department of Justice. From 1989 to 2001, he served as an Assistant U.S. Attorney in both the Southern District of New York and the District of Columbia. In 2001, Ken was appointed Director of the Executive office for U.S. Attorneys, where he provided oversight and support to the 94 U.S. Attorneys’ offices. The next year, Ken joined the Federal Bureau of Investigation to serve first as General Counsel and then as Chief of Staff to Director Robert S. Mueller. In 2004, he was appointed, and later confirmed as, U.S. Attorney in Washington, DC. Ken was confirmed by the Senate again in 2006, after being nominated as the first Assistant Attorney General for National Security at the Justice Department. He established and led the new National Security Division, which consolidated DOJ’s law enforcement and intelligence activities on counterterrorism and counterintelligence matters, and he oversaw the Department’s role in regulatory mechanisms such as the Committee on Foreign Investment in the U.S. (CFIUS). In 2008, Ken was named President Bush’s Homeland Security Advisor, with a portfolio covering the coordination of the nation’s counterterrorism, homeland security, infrastructure protection, and disaster response and recovery efforts.

16. Gabor Rona is the interim director of the Protection of Civilians Section of the UN Office for Coordination of Humanitarian Affairs. His permanent position is as International Legal Director of Human Rights First, where he advises its programs on questions of international law and coordinates international human rights litigation. He also represents Human Rights First with governments, intergovernmental and non-governmental organizations, the media and the public on matters of international human rights and international humanitarian law (the law of armed conflict). He also teaches international humanitarian law at Columbia Law School. Before coming to Human Rights First, Gabor was a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva. At the ICRC he focused on the application of international humanitarian and human rights law in the context of counter-terrorism policies and practices.

19. Domestic Administrative Agreements between Donor States and UN Agencies Consistent with domestic law Inconsistent with international law Reporting requirements for “prohibited transactions”

20. UN Personnel vs. “Implementing Partners” UN and ICRC: Privileges and Immunities based on Agreements with States “Implementing partners” (NGOs): no privileges and immunities AUTHORITY OF THE FEDERAL BUREAU OF INVESTIGATION TO OVERRIDE INTERNATIONAL LAW IN EXTRATERRITORIAL LAW ENFORCEMENT ACTIVITIES June 21, 1989 At the direction of the President or the Attorney General, the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI’s actions contravene customary international law. The President, acting through the Attorney General, has the inherent constitutional authority to deploy the FBI to investigate and arrest individuals for violating United States law, even if those actions contravene customary international law. Extraterritorial law enforcement activities that are authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations Charter. An arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.

21. Issues Raised by U.S. Law It prohibits funding for, and carrying out, humanitarian activities/assistance targeting listed organizations, including communications designed to foster compliance with international law and the facilitation of humanitarian access; It prohibits funding for, and carrying out, humanitarian activities/assistance that do not target listed organizations, but from which such organizations could be expected to benefit; It has a chilling effect on funding for, and carrying out, other humanitarian activities/assistance that are not, in fact, subject to the law but in connection with there is a risk that a listed organization might benefit; and It places at risk of prosecution individuals who participate in humanitarian activities that potentially involve or affect listed organizations.

22. Questions and comments

23. Panelists David Cole Professor Georgetown University Law Center Ken Wainstein Partner, O’Melveny & Myers LLP Former Homeland Security Advisor Gabor Rona Interim Director Protection of Civilians Section, UN Office for Coordination of Humanitarian Affairs (OCHA)

24. HostsClaude BruderleinNaz ModirzadehProducerElizabeth HollandTechnical DirectorJames BrockmanProduction TeamChristina Blunt, Dustin Lewis, & Anaïde Nahikian

25. The Live Seminars on Humanitarian Law and Policy are produced by: Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University Sponsored by: For more information on the Humanitarian Law and Policy Forum, please visit: http://ihlforum.ning.com or http://twitter.com/hpcr or contact: ihlforum@hpcr.org