 Good afternoon. I want to welcome you all to this important discussion. Before seeing anything else, I'll ask you to turn off your cell phones, if you haven't already done so, to interfere with the sound system. My name is David Smock. I'm a vice president here at USIP in charge of the Center for Mediation and Conflict Resolution. As you all know, the Supreme Court recently upheld two laws that make it illegal to provide material support to organizations designated by the State Department and Department of Treasury as being terrorist organizations and affirm that this material support includes advice and training relating to such things as human rights, non-violence, and peace. This workshop today has been organized to discuss three phases and implications of this decision. First, is to explain exactly what the decision means and what it doesn't mean. Secondly, to provide some arguments on both sides of the decision. And thirdly, to provide some information on the implications of the decision for organizations like USIP and others that are involved in international peacemaking. There is bio data on the five presenters on the tables out there, so I won't go into great detail. But our leadoff speaker is David Cole, who is a professor of law at Georgetown University. David argued the case before the court on behalf of the Humanitarian Law Project and has been working on this case for 12 years. David. Thanks. So the operative word there has been working on the case for 12 years. Just before I came over here, the last call I took was a call from my adversary at the Justice Department at the district court level. And we have to file on Monday something with the district court saying, what should we do with the case at this point? And we agreed that we should dismiss the case at this point. So I have been working on it for 12 years, but now my life is open and free, and I have lots of opportunities to do other things. I feel a little sort of guilty coming here, being the bearer of bad news and the one who brought this decision to you. But as I will say at the end, I think this is kind of a long struggle. By no means the end of this issue as we go forward. And I think probably the best way to understand it and put it in context is to think back to the previous period of time in our history where there was a great national security sort of threat slash panic, depending on what view you take of it. And there was a tremendous desire because of that national security threat to authorize the government to engage in preventive measures to stop the bad thing from happening. The bad thing then was communism. And what we had was the McCarthy era. And what the government did in the name of empowering itself to prevent communism from taking over the United States by force and violence was not merely to criminalize seeking to take over the United States by force and violence, but also any advocacy of Communist Party doctrine, any membership or association or support of the Communist Party, regardless of what that support or advocacy consisted of. And then there was an administrative process in which a secret branch of the executive came up with a secret list of proscribed communist groups. And we know sort of the end result. Well, I think the material support laws really are a kind of 21st century resurrection of that principle. Now the threat is terrorism. The concern is that we need to prevent it from happening. So it's not enough to make it a crime to engage in terrorism or even to conspire to engage in terrorism or even to aid or abet terrorism. We want to give the government the power to act preventively to go after people who have not actually engaged in any or conspired in any terrorist activities. And the way we do that is by, again, creating a list of proscribed organizations and making anything that one does in affiliation with or in support of those groups regardless of the purpose of the aid and regardless of the end to which the aid is in fact used, make it a crime. And just as with the McCarthy era period, this gives the government very, very broad scope but also creates a very, very broad chilling effect on activities that one would think we would want to encourage. And so the case that went to the Supreme Court was on behalf of the Humanitarian Law Project, a peace group that had been working prior to the material support statute with the Kurdistan Workers Party in Turkey and seeking to encourage them to pursue peaceful ways of furthering their interests rather than violent ways, teaching them how to bring human rights claims, helping them bring human rights claims in Geneva, and working with them on peace initiatives. Once this law was put in place and the Kurdistan Workers Party was put on the list, it appeared to become a crime to engage in this activity because the law prohibits not only the provision of money but the provision of any expert advice, any training, any personnel, or any service to a prescribed organization. And it doesn't require any proof that the service, training, advice, or personnel is intended to further any kind of illegal activity or indeed is likely to further any kind of illegal activity. And even in the case of our clients, a speech that was designed to discourage terrorism, reduce resort to violence, was criminalized. In the Supreme Court, we made a very, we won, I should say, for the first 11 and 1 1⁄2 years. But what does that matter at this point? On the issue that this kind of speech is not constitutionally, cannot be constitutionally prescribed by the statute. The lower courts unanimously held those parts of the statute to be unconstitutional. But the Obama administration took the case to the Supreme Court. Now Justice Kagan defended the law before the Supreme Court. And the Supreme Court upheld the law, even as against what we presented as a very narrow challenge. We weren't challenging the whole scope of making it a crime to provide support to prescribed groups, but only arguing that it's unconstitutional as applied to pure speech advocating only lawful, nonviolent activities. And there were some very strong precedents in our favor, going back to the Communist Party cases, where the court held that, yes, you can criminalize the illegal things that the Communist Party does, but you can't make it a crime for someone to support the Communist Party in its lawful ends, because it has lawful ends as well as unlawful ends, because otherwise you're engaging in guilt by association, you're criminalizing lawful speech. We lost the Supreme Court upheld the law. It said that the law was a regulation of speech, thereby rejecting the government's entire defense of the statute, which didn't regulate speech at all. The court said, yes, it regulates speech. Therefore, it has to satisfy the most stringent, strict, skeptical scrutiny that the court ever applies, but then it applied that scrutiny in a way that was the most deferential kind of a limp version of strict scrutiny that I think has ever been witnessed before. And the court said, well, the government really hasn't advanced very many reasons why this law is necessary, why it's necessary to criminalize advocating for peace, et cetera. But we can imagine some reasons why it might be bad. So even if the Humanitarian Law Project and other peace groups are seeking to encourage only peace and nonviolence, if they teach them how to bring civil rights claims, they might use that knowledge to harass and disrupt. I would think that we would rather have terrorist organizations using courts to harass and disrupt than engaging in terrorism, but no. Secondly, if we work with them on negotiating for peace, they might use that as a delay tactic to rearm to engage in further terrorist activity. And third, even if neither of those things come to pass, the mere act of working with them in any respect gives them legitimacy. And then they can use that legitimacy to go out and get adherence and get other support and engage in terrorist activity. And that, and ordinarily, under strict scrutiny, the government not only has to advance arguments. The court doesn't make them up for it. But I told David, it'd be hard for me not to editorialize and describe it. But secondly, the court says under strict scrutiny, you have to demonstrate, you have to not only come up with the justice union, but you have to demonstrate with evidence that, in fact, these concerns that you've identified are real concerns. So where was the evidence that helping a group work for peace had ever led to more violence or encouraging bringing rights claims had led to more violence? The court said, well, actually here, because the government's justification is preventive, we can't really require it to come up with any evidence. And it did not require it to come up with any evidence. So in the end, the court, I think, abandoned the lesson of the Communist Party era, which is that these kinds of measures are overbroad, do tremendous damage to legitimate activities, and that it is incumbent upon the government under the Constitution to distinguish between support that's particularly talking about speech that furthers violence and support speech that does not. As I said, I don't think this is the end of the line. If you go back to the Communist Party era, the early Supreme Court cases in that era all upheld these kinds of measures, and it was only after many years and after McCarthy was censored by the Senate that the Supreme Court started to establish the principles that this kind of overbroad legislation is unconstitutional. So I don't think this is the end. I think that we'll have opportunity in discussion to talk about avenues for reform, but I, and I think legislative reform is one possibility. I don't think many Congress members really thought that when they passed this law, they were making it a crime for Jimmy Carter to go to Lebanon and monitor elections in Lebanon. But they did, because in monitoring elections in Lebanon, Jimmy Carter, who filed the meekest brief in our case, had to meet with each of the parties to the electoral conflict, provide his expert advice on what to look for in a fair election, and in doing so, he met with Hezbollah, one of the parties to the election. He provided his expert advice. He engaged in criminal conduct. I don't think Congress intended to make that a crime, and I think there's some possibility for some kind of legislative carve-out. The last thing I'll say is just in terms of going forward, one sort of danger spot on the horizon is that the government is making arguments now, and in fact, prevailed in a criminal case, on a theory that says that you can be punished, not merely for working with a designated group, not merely for working with one of the groups that's on the Treasury list or the State Department list, but for working with a non-designated group, a non-designated group, or supporting a non-designated group, if the government then later shows that unbeknownst to you, unbeknownst to you, the non-designated group was in fact connected to or supporting or allied with a designated group. Now that is a very, very scary proposition. It's one that a court upheld in the case against the Holy Land Foundation, which is currently on appeal. It's one that the government is advancing in a designation case here involving a Muslim charity called Kindheart. So I will close with that, but happy to talk about reform efforts in the question and answer. Thank you, David. Our next speaker is Alastair Miller, who is Director of the Center on Global Counterterrorism and Cooperation. He also teaches at both Johns Hopkins and Georgetown University. Alastair. Thank you very much. Thanks for inviting me. Thanks to USIP. I'm gonna start perhaps by disappointing many of you here by telling you that I'm not a lawyer. That might come to relief to some others. And also might bring some disappointment by saying that I see some merits in both sides of the argument. So those of you who are expecting to see a knock down drag out fight between me and Ken may not see that on this lovely afternoon. But I want to explain by making three core points why I see some merits to both arguments and then just stand by offering some final thoughts on how we might go forward with this because I hope in the same vein that David does that this is in the end of this decision. So to explain why there's merits to both sides, first I'll talk about the sort of administrative side of this. And that is the intended consequences of not only the holder decision, but the larger process of listing terrorist organizations in the first place. And how does that really help to stop terrorists? Then I want to look at the real world and that is what do we know about how to end terrorism? How does this listing process and the holder decision really affect counterterrorism in practice? And then thirdly, to look at the unintended consequences, how does the holder decision undermine actions that can help to end terrorism? So to start with on the administrative side, the designation of foreign organizations has a purpose. And I think it has a very important purpose. Foreign terrorist organizations are foreign organizations that are designated by the Secretary of State in accordance with a section of the Immigration and Nationality Act. To basically look at people in three categories and it says that it's really rather obvious, but are they foreign? Do they engage in terrorist activity and do they actively threaten the security of the United States or its citizens? And some of the intended benefits of that list is that it enables the Department of Justice to prosecute anyone found to be providing material support to a foreign terrorist organization. And the list provides the Department of Treasury a basis from which to go and freeze the assets of those organizations that are held in the U.S. if they can find those assets. The list, as the State Department states, mentions is that it also intends to stigmatize and isolate designated organizations. That all makes sense. And deter donations and contributions to those organizations that might help them thrive and engage in activity that harms us. And it is intended to heighten public awareness of those groups that threaten us. So that all seems to make sense why we have the foreign terrorist organization designation list. And in a nutshell, one could argue that this puts these nasty people on notice and that it provides the government a basis from which to take actions that undermine their activity. And on that basis, you can see why the interaction with designated groups, including the dispensation of expert advice or teaching or what have you, could be considered or should be considered under the law unlawful and carry harsh penalties. Now I want to look at the second point that the real world and the real world is, what do we know about terrorism, how it ends? There is a lot of literature on this subject and it's based on some solid research looking at cases such as the IRA and others and how they've gone from an actively terrorist group down to something the real IRA, which is far more marginalized and is not threatening the population in the United Kingdom and Northern Ireland in particular in the same way that it did throughout the 1900s and particularly in the 70s, 80s and 90s. And seeing as we're at a USIP event, I thought that I would quote from two renowned experts who've contributed to a useful USIP report on how we end terrorism. The first one is Martha Crenshaw, who concludes that governments must confront terrorists on two fronts. The first is those among the rank and file who are disposed of violence. And the second is the population, the wider population in an effort to separate or marginalize the former from the latter. Following from that, Paul Wilkinson also says in the USIP report that a political agreement can attract the support of a large segment of the population and that support can be a very important component in the end of the cycle of violence. So in practice, if you look at the current sort of doctrinal underpinning of US policy in the name of counterinsurgency strategy, you see the same logic being applied. And that is that you try to peel the population away from those hardcore terrorists in order to isolate them and therefore weaker the latter and allow the former to address their grievances through political means. And I don't think it's an accident that we've seen the Taliban removed from the FTO list because the Obama administration is trying to seek some accord in Afghanistan in order to peel one group away from a hardcore terrorist group. We're seeing this in practice by the US government as we speak. So on to the third point, the unintended consequences. Whether they're academic like Cranshaw or Wilkinson, as I just mentioned, or those who are on the battlefield with hardened experience like David Kilcullen or David Petraeus, they have based their analysis on careful research and case studies. And they know that segments of the population need to be peeled away from the hardcore. And in order to do that, you need to have some interaction with those groups. And the government cannot do that on its own. And there are non-government organizations that can play a very, very vital role in reaching out to segments of the population that can be peeled away. So we have a situation where we peel the general population who may have supported the IRA for whatever reason away from the real IRA and reduce them to a small shadow of themselves and make them politically impotent. Because we know the strongest currency that terrorists have is in fact the support of the population. If we can reduce that, we can help to reduce terrorism and some kind of interaction through proxy, through groups such as the one that David has been defending helps us in that process. And the humanitarian law project, for example, can help to isolate groups by providing them with advice that could bring them into the mainstream political process, as David mentioned. Yet the holder case has led to a situation where American law schools, for example, have stopped giving advice, deliberately stopping giving advice and law trainings to others outside the United States and, importantly, funding sources from the U.S., which has the sort of wealthiest philanthropic base in the world with wealthy foundations and others, are refusing to give money to humanitarian and human rights groups who are working on the front lines to help peel away the core from the periphery and hopefully get us into a situation where we help to end terrorism in the areas where we're fighting it. So what is the way forward, finally? I think the United States does need to have a legal and administrative basis from which to take action against terrorists who threaten the United States and its citizens. And the FTO, the Foreign Terrorist Organization designation list, does that. But the reality is that it also undermines activities that can help to isolate the violent elements of terrorism and marginalize the public and financial support that remain viable. So we have to remember, terrorism isn't an exact science and having a list and all these administrative procedures isn't really all that applicable in the real world and we have to be flexible. Terrorism is a social phenomenon and countering it is therefore not an exact science and cannot be governed by narrow rules that are inflexible. The reality is that there needs to be restrictions on interaction with designated groups, including the provision of material support, but there needs to be more flexibility in how those are applied. If countering terrorism is the objective, more careful consideration needs to be given to how legal decisions not only further that objective but how those decisions can actually undermine that objective. I think the decision, the holder decision by the Supreme Court has failed to do that and could jeopardize rather than strengthen our security. So I'll end by saying that the flexibility needs to be applied to cases where careful consideration is given as to the purpose and the end towards that support that's being given, as David has mentioned. And as David mentioned also, I really hope that this isn't the end because if we're serious about countering terrorism and the more that we understand the environment in which we're working on the ground, we have to give more flexibility to those groups who can operate by proxy to help to undermine terrorist as we know it. Thank you. Ken Weinstein is a partner at O'Milvaney and Myers. Previously he was assistant attorney general for national security. He was chief of staffs at the director of the FBI and US attorney in the District of Columbia and has given a lot of thought to this case, Ken. Okay, good afternoon, everybody. When Alasdair started out, he stood up and said he was gonna disappoint you because he's not a lawyer. And I think I'm gonna disappoint you because I am a lawyer, which I find is usually a more disappointing factor than otherwise. But, and like a good lawyer, I think I'm gonna start out by raising an objection to these proceedings. And that is that I'm the guy up here who's sort of positioned somewhat contrary to the interests of the US Institute of Peace. And I find that to be really unfair branding because if it was the US Institute for War Mongering and Xenophobia, I'd feel a little bit better, but it's the Institute of Peace. So that's a cross I'm gonna have to bear here. But what I wanna do is try not to be too lawyerly here. First though, let's just sort of isolate what the issue is here. And what it is that the government decided to do in passing this law. The government said, look, if you contribute funds, resources, training, advice, et cetera to an organization that is involved in terrorism, is listed as a foreign terrorist organization, whether you intend those resources specifically to go to a terrorist activity or not, you're gonna possibly face a criminal sanction. And they made that decision with legislative history, with a full sort of analysis of the issue and with the full recognition of the pros and cons of doing that. And then over time, however, find that statute to address some of the issues that have been raised in its application. But it was a very clear policy decision as reflected in that legislation. And I think that the analysis for today is sort of a two-step analysis. One is, can the government do that? In other words, is that constitutional? But then the second question, which I think most of our speakers are going to and will go to, is whether it's wise for the government to do that as a policy decision. Let me start very briefly with the legal analysis, and that's a pretty easy one. It's easy not because I'm a brilliant lawyer, but because the Supreme Court of the United States had just said it's constitutional. And some of the themes that they struck are, first, they point out that this is a matter of national security. And national security is one of the core functions, if not the most core function of the executive branch. And therefore, the executive's decision in this area and the legislative branch's, the political branch's decision in general, is due significant amount of deference from the courts. Secondly, they point out that the executive branch and legislative branch, they have the expertise in this area. They actually understand the real life implications of this kind of support on the terrorist organizations around the world and the threat that they pose in the United States. And as Justice Roberts said in the opinion, it's the executive branch that gets the morning threat briefings every morning, not the courts. So that was, I think, a very important recognition of the courts of the limits of their understanding as to the implications of this law in the real world. And then they point out that the political branches have made the determination that I just went through, which is, hey, if you give to a foreign terrorist organization and you know that it's designated as a foreign terrorist organization or that it is involved in terrorist activities, you are gonna possibly face criminal sanctions. They made that determination. And even though that's gonna have implications for people who wanna give resources to organizations for charitable reasons, they made the determination, the value judgment that that's appropriate. And the court said that is reasonable given the government's interest in stopping terrorism. So that was the, there were many facets of the legal argument, but those are some of the main points of the legal argument. Now let's go over to where I think the future of this debate really is gonna be, is whether this value judgment, the policy decision that we have that's reflected by the law is appropriate. And I will look at that as a prosecutor. I spent most of my career as a federal prosecutor and sort of look at it and look at this issue as along the lines of does it get the job done and the job being protecting the United States against terrorists? But also I wanna look at it in the context of our times. And this is not to say we have to look at things differently like they did in the era of McCarthy out of fear, but let's look at it, let's look at this issue in the context of the threat that we're facing. And really this goes back to 9-11, which coincidentally is gonna be, we're gonna mark it's anniversary tomorrow. 9-11 showed us two things. It showed us one, the scale of the damage and the suffering that can be inflicted by international terrorists. We all knew that intellectually, but I think there was 9-11 that really drove home the reality that that is something that can happen and something much worse, exponentially worse than happened if terrorists actually have weapons of mass destruction. But also, and I think more directly relevant to this issue, it made us realize the inadequacy of our sort of more traditional, prosecutive tools whereby somebody commits a crime, we prosecute them, we penalize them severely and that punishment not only incapacitates that bad guy and keeps him from doing it again, but deters others from doing similar acts in the future. That works for a large swath of criminal conduct. It doesn't work when you have people like you had on 9-11 who are fanatics, who are not only willing to give up their lives, build into the operational plan that they will give up their lives, are looking to do that. So they're not gonna be deterred by the fact that some terrorist in the past was put away for a long period of time. What that's told us is that we need to focus on preventing these terrorist attacks in the first place, not waiting until they happen and then punishing people and then thereby deterring others in the future. And so prevention really became the watchword after 9-11 operationally throughout the government. And you saw that in many different ways. You got the Patriot Act which provided stronger investigative tools, the FBI and others to find out what terrorists are doing before they actually launched their plans. You got the Ford Intelligence Surveillance Act was revised and strongly enhanced in order to give federal authorities the ability to find out through eavesdropping what kind of plans are being hashed once again before they result in attacks. But you also had a different approach by the federal prosecutors. And federal prosecutors stepped back and said, okay, well, we can't just wait until the attack happens and then build a big case and prosecute these guys. What we have to do is we have to use the laws we have now creatively to try to interdict them. And one thing they did is we started using sort of lesser crimes, visa frauds, false statements, counts, this kind of thing to bring people in, to arrest people who we thought were involved in terrorist plots. So get them off the street and incapacitate and disrupt the plot. But we also started making much greater use of those statutes which are designed not only to prosecute people for the completed terrorist attacks but to go after people who enhance or help build the infrastructure that allows for terrorism. And primarily those of the material support laws that we're talking about today. And there are a number of different provisions that are that make up the material support statutes but the main one that I'm talking about here is 18 USC 2339B, which is the one that says if it's a foreign terrorist organization, you give resources, training, et cetera to that organization. Knowing that it's designated or knowing that it's involved in terrorism, you can face a penalty of up to 15 years. And that provision has been absolutely critical. That has really been the most used provision in our effort against terrorism since 9-11. I think the last I saw there were somewhere above 150 different cases that have been brought since 9-11 under that statute. And it's been used for, it's most often used for the traditional support that you think of, money going to al-Qaeda or arms being shipped to the Tamil Tigers, let's say. But it's also used for the sort of not so traditional type of support, services, training, personnel, the kind of things we're talking about here. We've had, obviously we've had number of cases against people who have gone to terrorist camps for training. We've had cases against a person who health terrorists, cell members, get immigration papers against somebody who provided Jihad training to young recruits. We had a case against somebody who provided satellite transmission services to Hisbalat, to Hisbalat TV station. So we've used this statute against people who provided support other than just money, which is what most people think about. And this statute and its use has been absolutely vital. And it's vital for three reasons. There has three consequences for terrorist organizations. First, it degrades their capability. The more you sap their resources, the more you sap the support they have, obviously the less capable they are of carrying out their mission. Secondly, it disrupts them. Every time you take some operative off, that disrupts the operation, maybe slows down whatever operation they're planning. So if Al Qaeda, which is very methodical and thinks and plans years ahead, plans on having certain travel papers generated for their cell members and that the person responsible for producing those travel papers is arrested, that throws off their operational plan and helps to disrupt and prevent attacks. But also, and this is one thing I think people don't recognize, is that every time you take off somebody who's providing that kind of support, it helps to expose the people in the Al Qaeda network or the terrorist network, because they then have to go out and find somebody else to perform that service. And whenever they have to operate or step out of their kind of preset operational plan and look for somebody else to provide a service, that exposes them, puts them out there and helps us. It helps make it easier for us to detect them. So it's vital that we use those material support laws against traditional terrorist organizations, but it's also vital that we use them against the organizations that we're talking about here, which are dual organizations, which have both a terrorist end as well as a non-terrorist, perfectly legitimate and often very salutary mission as well. And the reasons, all these reasons are laid out in the Supreme Court decision, but the reason is why it's important to use this law against organizations like that. First, while it sounds well and good to think, well, we're just giving the money for this organization to try to learn how to build peace, there's nothing that says that money's gonna stay directed toward that end and not be reverted over to the organization's terrorist end. So if you give money to Hezbollah, thinking it's gonna go to a hospital, there's nothing that says that Hezbollah will take that money and send it over to the terrorist operatives. Similarly, there's no organizational firewall, and that's the term the Supreme Court used. Oftentimes the same infrastructure that such an organization, what I call a dual organization, same infrastructure that goes to its more salutary mission is also the one that's used for terrorism. So let's just take the media, a media operation. You could give money to the media operation thinking that they're gonna be promoting peace in a particular region, but they could take that money and they could divert it to producing video that proclaims the glory of terrorism. And the third thing, I think there's a very strong point that the Supreme Court points out is, one of the reasons why you don't wanna allow resources to go to these organizations, even if that, even let's just say those resources are gonna go just to the charitable pursuits, is that that allows that organization to generate goodwill, to generate adherence and recruits within the population they're targeting. It makes it harder for us to delegitimize that organization. And one of the best ways of defeating a terrorist organization is delegitimizing it in the eyes of the people in its region and in the eyes of the world. And if you give them money to build a hospital, they build a hospital in their name, people in that community are gonna respect and appreciate them for doing that. It's gonna make it easier for them to draw recruits from that community. We can, yes, we can go and we can basically just kill our way, try to kill our terrorist organization into extinction, but I think a better way to do it is by focusing on delegitimizing them and this statute allows them to do that. So in short, the government's argument is we need to be able to starve these organizations of resources. It results in some unintended effects or results in some unfortunate situations where money can't go to legitimate causes, but that's something we've dealt with forever. We've had embargoes throughout the life of our country and oftentimes embargoes are directed at a country because we wanna change that country's government, but it has a terrible impact on the people of that country. The value judgment is made that that's something that's necessary for purposes of our foreign policy and this is exactly what's happening. Here in this area in the terrorism area. So for all those reasons as a prosecutor, looking at this as, so this issue as how are we gonna get the job done? I understand the government's decision here to go forward both with this legislation and with carrying out this legislation aggressively. I recognize, however, that there is a very difficult value judgment here and that there are times where people like the plaintiffs in this case are prevented by the statute from doing things that could well be good. I think it's useful for groups like this to keep examining it, look at possible legislative fixes because our approach to counterterrorism has to change with the circumstances and we have to learn lessons as we go. So I think today is a good example of undergoing that process and I appreciate you having me here. Thank you Ken. Our next speaker is Jett Crocker who is a professor at Georgetown University. Member of the USIP board and for a long time the chairman of our board, former Assistant Secretary of State for African Affairs and author of many books on international peacemaking. Jett. Thank you very much, David. Very pleased to be here with this distinguished panel. I also am not burdened with legal knowledge and so I have that professional deformation of having been both an academic and a diplomat. The words banning, proscribing, listing and blackballing do not exist in the diplomats' dictionary and I have a copy of the diplomats' dictionary it's sitting right in front of Kay there written by my former deputy, Chas Freeman and I checked very carefully before making that statement that those, because he's spent a lot of time thinking about this, that those words do not appear in a diplomats' dictionary and they shouldn't. They shouldn't. I spent close to a decade of my life negotiating with and making peace with parties which were at the time certifiable, indictable by today's norms probably could be even proscribable. What we were doing, we described at the time as trying to convince unconcenting adults to commit unnatural acts. That's mediation. That's what mediation is. So to the extent that this statute and its most recent interpretation create a pall or discourage mediation activities and that's a point I wanna throw at the attorneys here who are qualified to answer it. It is bad news for America. It's bad news for world peace and it's bad news for the peacemaking craft. What we're gonna wind up doing and I'll come back to this is eliminating ourselves as a role player in some of these arenas and leaving the agenda to others who are not subscribers to the lists that we're talking about. So I do think it's important to look at the five things that are supposed to be prevented. Training, finance, service, advice, expertise and where do those lines cross over to what I would call mediation or dialogue promotion which is quite distinct from advice. I spent as I said close to a decade, I was always advising people but I was advising them in my own country's national interest, not in their countries or their movement's national interest. So I think that distinction is an important one and we might wanna have some conversation about whether mediation could be criminalized. As distinguished from advice, as distinguished from training. Now training is very important stuff and this organization here, USIP, is very proud of its role in training and education and is determined to expand it and continue it. So we are very much watching this debate unfold and we're very concerned about where it might go. So that's first point. My former boss, George Shultz, when he was criticized as I was for talking to organizations and groups and countries like Cuba or the African National Congress or the PLO back then like to remark that it's not who you talk to, it's what you say to them which sounds kind of commonsensical in a way, doesn't it? I mean, but it also depends on who are the movements or the bodies, the groups of the countries that we're talking to. And here again, I make a point when the interests of time very briefly, I think there's 46 organizations on this list at last count. Is that about right? 47. 47. I'm sure the number's not declining. My point is this, most of them do not consider that they are at war with the United States. Most of them aren't. Most of them are at war with their own governments or with another movement in their own country. So the question really is how wide is the net? And if we're talking about remedies, what should be done in that regard to have a more refined list? I have no problem with what this legislation and decision portends as far as al-Qaeda is concerned. I have no brief for al-Qaeda. It's been a while since I recall at the LTTE which no longer really exists as a military movement was aimed at the United States or the PKK or a number of other organizations that are on this list. They do have local enemies, lots of local enemies, but I'm not sure that we are their adversary. So the question is how many, there's lots of armed actors, many of which are prescribed these days by either the US or the EU. But my point is that not all armed actors are the same. Some are legitimate representatives of something in their own societies. Some are what I'd call venture capitalists. They are people who have seen other people do it and they wind up getting visas and they get travel allowances to go to nice countries where they have decent hotels and they get lots of free meals and so forth. And so they become copycat terrorists if you like. Look at Darfur. Darfur is a classic example of that. Started out with a couple of movements. It was now last count of 18 movements. It's their venture capitalists or their startups. So there's lots of reasons that we might say that some groups belong on a list and some groups don't. I would wonder what we would say today about talking to the PA, talking to Fatah. Well, we decided that Fatah's okay. Talking to Hamas is not okay. That's an interesting case and it's one we probably should discuss at the Q and A time and the interest of time, I won't go into it, but there are some reasons we don't talk to Fatah. They have to do with our relationship. We don't talk to Hamas. Has to do with our relationship with Fatah and our relationship with Egypt and our relationship with Israel. So I think we have to figure out how many agendas we're getting into in this whole arena of prescribed lists. I wanna come back to the point that I made about the issue of mediation and I hope that some of our panelists will shed some light on that. And I think it would be useful for someone on this panel and I guess I'm the designated hitter here to refer to this really splendid report that's on the table outside about mediating with prescribed actors. It lays out in considerable detail the kinds of criteria and considerations that should be in our mind when we decide whether or not to talk to someone. It's really quite a thoughtful summary of the pros and cons and there are cons and there are pros whenever you make a decision to talk to someone. I think it was Ken who said a minute ago that you can sometimes offer legitimacy to someone by talking to them and that's a factor. You have to think that through. You have to think it through but it's also a factor that sometimes the people that you're offering a chance to speak with are the people that actually control the guns in a given conflict situation. So I guess I think we have to look very carefully at the pros and cons. Are the parties we're thinking of interested in peace? Do we have any way of judging if they're serious or not? That's a criterion that we can look at. Are the parties legitimate representatives in some way as we view it of their movement or of their population? Do they have the capacity to deliver on a peace agreement? These are not insignificant considerations. Do they, does talking to them have some possibility of leading to behavioral change within the movement which is a very key point that I think Alistair made. I mean there are some movements you can influence by talking to some movements perhaps you can't. And that's an analysis. It's not something to be defined by legislation and Supreme Court justices. I think we probably all agree about that. You need an actual analysis. Sometimes we have to figure out whether or not strategic engagement in the U.S. national interest warrants talking to people even though there are risks. And if it doesn't perhaps there are other ways indirectly that one can arrange to engage with such a party using cutouts, using NGOs, using friends and allies and so forth. But there are risks. And this report that's on the desk out there is very clear on what some of the risks are. So it's a calculation that needs to be made and needs to be made by people who are qualified to make it. What can we do about this situation that we're now in as a result of this judgment? One thing we can do is to have a careful look at the 47 organizations on the list and see if they're all adversaries of the United States of America that weren't being treated in the same categories for the same reasons when it comes to funding, to training, to service, to personnel and to expertise and to mediation. I don't want to see a mediation between the United States and Al-Qaeda. That's not my point. My point is that there might be some utility in having from time to time the capacity for our leadership in mediation with some other civil conflicts around the world. So we can look at the lists. That's one thing we can do. Another thing we can do is get more skillful at discussions with the Department of State about the capacity to obtain waivers and talking to Treasury about licenses and so forth. Perhaps some dialogue between organizations like USIP and some of those executive agencies might be useful. I personally would not think that going the legal route or going the route of moral lawsuits is going to be the best option in the near term and I would despair going to the Congress for obvious reasons. The reason some organizations get prescribed is because there are lobbies in this country that pay big money to get legislation passed so that somebody gets prescribed. Let's be frank and honest about it. I mean, that's the way the world works. If you don't like somebody, you go to the Hill and you get a ban implemented through legislation. So now if none of those remedies appeal to you, the fourth remedy is to let the Qataris and the Norwegians and the Turks and the Swiss and the organization of the Islamic Conference do all the mediating and do all the training. I don't think that's really what the Congress originally intended or what the Supreme's had in mind either so I'll leave it there. Thank you. Thanks, Chet. Our final speaker is Kay Ghanane who is the program manager at the Charity and Security Network, which is very actively engaged on the Supreme Court decision and its implications, Kay. Thank you and good afternoon. First I'd like to describe a little bit more about what the Charity and Security Network is. It formed at the end of 2008 as the result of joint effort of peace building groups, grant makers, international NGOs, aid and development groups, civil liberties, faith-based organizations that have problems with the collateral damage that national security laws are causing to legitimate charitable development peaceful operations and wanted to work together to formulate reform proposals and advocate for them. So I coordinate their efforts. They are a terrific, wonderful group to work with and we have now after nearly two years of operation put together what we think are sensible, practical reform proposals that are based on real-life field experience of what the civil society organizations go through. So that's the work that we're doing and we'll be doing and that's what informs my remarks on the implications of the HIP decision on international peace building. At the first look there's no change. The law was upheld, peace building mediation has been prescribed as prohibited expert advice and assistance since the material support laws passed the Congress. So that didn't change but what did change and is a big change is hope that the problems over breadth of this law was causing for resolving violent conflict and providing humanitarian assistance, hope that the courts could solve this problem or take care of it. Now with the Supreme Court ruling, whether you agree with it or disagree with it, it's done and what we now have to look at is what the Congress and the administration will do. The court did not rule that we must, under the Constitution, that we must criminalize these activities. What they ruled was that they would defer to Congress and the administration because of their expertise in the area of national security. That pushes the ball into the court of the Congress and the administration and imposes on them a very heavy and grave responsibility to get it right, to make sure that the facts and assumptions that they're using as a basis of these laws are in fact correct, that they reflect realities on the ground, that they're smart, productive, and consistent with our values as Americans. So that is the job going forward. The impacts on peace building, now U.S. nationals that work for international peace organizations are covered by this law, whether they're based in the U.S. or not, and that's limiting their activities. U.S. organizations that are involved in efforts, for example in Afghanistan and peace building, have to withdraw from certain projects or from certain meetings where their international colleagues are able to go forward with the peace efforts. So this reduces both American effectiveness and influence and doesn't really do much for our reputation internationally. And in addition, it's making potential criminal liability for those who might be engaged in back-channel communications to arrange peace negotiations, just the logistics of working with people to get those meetings together and to make them happen involves too many concrete and coordinated communications for them not to be prescribed under the Supreme Court's ruling. There's also the problem of grant makers who wish to support peace building activities and negotiations are not sure what to do and we've also heard from lawyers who aren't sure even who they can represent, whether they're on the group or not, because they might be involved in a peace building effort with a prescribed group. I don't see any big loopholes in the HLP decision, although other legal experts may weigh in on that. Chief Justice Roberts talks about the ruling only applying to coordinated communications with prescribed groups, but even if coordination could be clearly defined in these contexts and for those who want to try to tackle that job, I'd have you look at campaign finance reform laws and the ongoing excruciating efforts the Federal Election Commission has made to try and define that one word. It drills down to the most basic elements of what is necessary for peace building and other nonviolent activities. You can't change people's direction. You can't change hearts and minds if you don't talk to them and if you pretend they're not there, you're not going to change them either. So for activities as simple as negotiation for release of hostages or child soldiers or entering territories to remove landmines could also be impacted under the ruling. So the distinction between peace building and humanitarian aid is also not always entirely clear cut. There is a lot of overlap and often aid workers on the ground because they're in the community and no people are sometimes the first ones to hear that a prescribed group may be interested in peace negotiations and they need to be able to follow through on that to try and make it happen. The impact of the ruling will be for now a chill on peace building and humanitarian activities which goes against what we all want which is less conflict and more peace in the world. So the question is, I think going forward now that the ball is back in the court of the Congress and the administration how do we best get there? What is the smart policy? In May of 2009, after a three-year investigation and worldwide hearings, the prestigious International Commission of Juris released a report assessing the damage-urging action which found that governments, not just the U.S. but including the U.S., have, quote, confronted the threat of terrorism with ill-conceived measures that have undermined cherished values and resulted in serious human rights violations, close quote. It calls on governments to reassess these short-term emergency strategies before they come permanent. And I think the HLP decision gives Congress and the administration a good opening for such a reassessment. There are some fundamental questions they need to ask. Mr. Wainstein referred to the Congressional consideration in passing the material support laws that looked at, investigated the factual background. We've been trying to find specific facts, examples, or information in the public record to support the congressional findings around this. And so far, we've been able to do it. The law itself has a finding that foreign organizations that engage in terrorist activity are so tainted by the criminal conduct that any contribution to such an organization facilitates that conduct. And then a House report from 1995 basically makes the fungibility argument that any aid to a prescribed organization frees up dollar-for-dollar money that can be used for violent ends. If that's the case, there are maybe ways we can find to prevent that. It's not necessarily inevitable. But the real question is, is that still the case? What is the actual factual situation on the ground? Under what circumstances does the situation, as Mr. Wainstein referred to, actually occur? How can it be prevented? How can we fulfill our humanitarian obligations under international law and as, with our values as Americans and still prevent supporting violent activity? That's a fact-finding investigation. I think Congress and the administration are obligated to undertake now given the extreme level of deference to their judgment. And we should not be relying on flawed assumptions or what may very well turn out to be flawed assumptions that have dominated policy in this area for some time. For example, the fungibility argument. Where are the factual situations to support that? I don't think it happens in every case. It may happen sometimes. When is that? How can it be prevented? The other is that this radioactive theory that basically if you put a group on the list or delegitimize and over time we'll lose our public support. If that were the case, then why is the Kurdistan Workers Party, which was on the list, still active the day after the Supreme Court decision this year, an affiliated organization with the PKK was responsible for a bus bombing in Istanbul that killed 11 people, including four civilians. So obviously since all the time that David has worked on the HLP case, if they had been allowed to go in and do their human rights training and mediation work with the PKK back when, maybe incidents like this might have been avoided, but at least it's clear that in all that time it's been so delegitimized that they've seized operations. There's also this false choice between safety and aid and humanitarian activities. I think we need to look at this as an opportunity to have a discussion of how to break out of that. We don't have to accept what's called the collateral damage of denying humanitarian aid or criminalizing peace building in order to make effective use of the material support laws. Our group has proposed changing the material support law to legalize the peace building activities and to legalize humanitarian aid that's required by the Geneva Conventions when there's no reasonable alternative but to provide it through a terrorist organization and when lives are at stake, lives of civilians. The other way to do this would be under existing law when Congress passed a material support statute. It did include a provision empowering the Secretary of State to make exemptions for expert training advice and assistance when she finds that such activities are not a threat to national security. And peace building, I think, enhances our security, doesn't threaten it and maybe a simple and quick way out of this problem would be for the Secretary of State to take such action. So my conclusion, I think, I encourage you all to pursue dialogue and fact-finding and to urge the Congress and the administration to do the same. Let's have a policy here that's based on reality and also based on our values as Americans on humanity and a belief that we can turn people away from violence. Thank you. We have about 20 or 30 minutes for Q&A and we have mics which we will bring to you when I recognize somebody who has a question they want to make. You can start in the back there. You'll identify yourself. Hi, I'm Cindy Beall. I work for Congressman Jim McGovern in the House and I really didn't want to be the first question, but that's the way it goes. I have a couple of questions. One, I'm trying to figure out who determines whether or not someone has possibly engaged in criminal activity. Is that like our justice department? Or how that happens, right? Because there is an interpretive process here. I mean, there's a, like any legal case, someone determines somewhere that a criminal activity might have occurred, begins an investigation, and then ultimately brings charges. And I'm trying to figure out from this whether that's the Department of Justice that does that and not, you know, some lawyer, Joe Schmidt, in a law firm, decides that makes a determination and tries to bring you to court or something. I'm just trying to figure out how that process might work. I guess along with that is, would the Justice Department, or as you kind of said, came in and go, maybe the State Department be, or the Treasury Department be issuing regulations or guidelines to further define some of these categories or something. Would that be the next kind of step here that, and then that would be something that people could weigh in on. And my last piece of this is, let's take this as a hypothetical case. You have been approached by families who have relatives who are hostages taken by a prescribed group. They have asked you to be an interlocutor with that prescribed group in trying to get their relatives free. You go, because you're not a naive naïve on these kinds of issues, and it's not the first time you've been invited to such a barbecue, you go to the State Department, you let them know what you've been asked to do, you seek their advice. Since they cannot directly mediate or negotiate with this prescribed group, they give you the green light, certainly not in writing or anything, they actively work to make sure that the U.S. government puts no obstacles in your way. You go to the national government where that prescribed group in the country that operates, you let them know what you're doing, what you've been asked to do by the families. They're not really happy about it, but they're not putting any obstacles in your way. Can you do this, or are you now going to be, you know, possibly subject to prosecution if you act as an interlocutor on behalf of these families to try and get their relatives free? I guess that's a nice little hypothetical which happens all the time in a wide variety of cases because I think as Ambassador Crocker said, you don't mediate with your friends. You mediate with difficult parties, prescribed groups, or your enemies. He didn't quite say it that way, but that's my paraphrase. And so those are my questions. Thank you. Does anybody want to take that up? In addressing your hypothetical, I know these situations arise all the time, and unfortunately there are no clear answers that I know of. It depends on what level of risk the person involved is willing to take on personally in terms of prosecution. There also seems to be in some situations, especially in disaster relief in areas controlled by prescribed organizations of a don't ask, don't tell policy seems to be emerging with the State Department, which is we will pretend we don't know what's going on because the law has forced us into that. Just if I could address your first question. I think the question was when it comes to the enforcement of the statute, who is it who decides? We think we should undertake an investigation of person A for possibly providing material support to a foreign terrorist organization, and that is the Justice Department. The Justice Department has sole discretion to decide whether to initiate a grand jury investigation to start investigating, getting documents, talking to people and finding out whether whatever conduct was undertaken violates the provisions of the statute. And obviously the Department of Justice also has the decision as to whether or not to actually bring a criminal case. And so keep in mind there is also prosecutorial discretion. And prosecutorial discretion applies to when you have a situation which might technically violate the law, should we go ahead and bring that charge or not? Or should we bring a lesser charge? And that prosecutorial discretion is factors into any charging decision for any type of crime, a situation like this, where you have people who might have technically violated the law, but their intent was not to provide assistance to terrorist activities per se. If I could just add to that two things. One is that prosecutorial discretion is in theory a response, but I don't think it's a very satisfactory one. One, because it is discretion, you have no right to engage in the activity, you're sort of hoping that a prosecutor won't take you on with respect to it. Two is that in our case, with the Humanitarian Law Project which was seeking to do peacemaking and human rights advocacy, the government could have resolved the case from the outset by saying we are not going to prosecute you. In our discretion we will not prosecute you. We then would not have had any standing to challenge the law and the case would have gone away, but instead they spent 12 years arguing we have the right to go after you and to prosecute you. And the third thing is that it's not just the Justice Department and it's not just the State Department's list of 47 groups, because as many people in the room probably know there's also a Treasury Department list and that has several thousand names of groups and individuals on it and the same proscriptions essentially apply to it except that they can be enforced civilly as well as criminally which means they can be enforced by OFAC the Office of Foreign Assets Control the Treasury Department so that it's not even just the Justice Department that's making these decisions there are a whole host of something like 20 government entities that are involved in one way or another in terror financing regulation, oversight investigation and the like and so with respect to core criminal prosecutions, yes Justice Department, but you're not off the hook simply because there's not a criminal prosecution. Thank you. Yes, in front here. Yes, my name is Jim Jones I work as a consultant and in the past I have worked in countries under conflict and had some modest engagement with organizations that are on the list of 40, 47 I think you said. Let me first off say that I certainly agree with Ambassador Crocker that any list of 47 that is as desperate as this one is one has to question what what sense does it make to even have the list I'd like to comment and maybe get your comment on something that you said Ken you talked about the importance of legitimating OK groups that are on this list and the US clearly makes an effort to do that it seems to me that there's a flip side to that coin that's rather dangerous and that is in the process of delegitimating the groups in effect the US is sometimes legitimating organizations opposed to the foreign terrorist organization and those organizations are guilty of enormous human rights abuses and that is a very, very dangerous thing and I one country that I have in mind specifically now is Colombia where I have some experience and have engaged with insurgent groups and efforts were made to burn me because of that so at any rate I this whole notion of delegitimating it's a flip side of legitimating would anybody care to comment on that you're right it's a policy decision of value judgment whether to put a particular organization on the foreign terrorist organization list and that's for the Secretary of State to make that determination we can all question that extermination as every one of the 47 odd organizations that are on there whether they should be or shouldn't be and there would be some people who'd say there's nothing these people should not be on the foreign terrorist organization list and for the following reasons and others would argue the contrary and one of the arguments might be that yeah look this organization maybe they're resorting to some tough measures but look at the people they're up against they're really bad people and I think that's one of the 47 and fine that they're up against people who are no more savory than them bottom line is and I think this comes through very clearly in the Supreme Court decision that's a policy decision for the government to make for the executive branch and so I think that leads to the point that we've heard from the panelists here which is step two of this is to try to influence that decision making as to whether the list we have right now it is the right list should there be measures in place to sort of soften the impact of this and so might just add one thing to that and that is that there is a process at the State Department where the list is reviewed those designations are reviewed every two years so it's not like you get put on the list once and you can never come off but one thing that sort of baffles me is that there is an opportunity for redress and that you can in fact appeal and see if you can get off the list but I'm not sure where that process now goes in relation to the court decision because if you want to get legal advice and support for how to how to get your name off the list you're then in trouble and the other last point that I have on legitimacy is I also wonder in the case of some of the worst groups out there and we all I think resoundingly agree that al-Qaeda should be on the list they enjoy that sort of legitimacy they feel that being called upon and picked out by the United States is sort of a badge of honor and then finally my point would be made my last point would be that it seems that removing names off the list has a political agenda behind it and taking North Korea off as a state or taking groups off in order to try and engage with them might actually seem to the rest of the world as something arbitrary and not in the relation to their activity necessarily I want to make a short legal point about legitimacy as a justification for criminalizing speech never before this is I think a very very dangerous sort of precedent because never before has the court said that it's okay to criminalize speech that's what this case was about it was about whether the government can criminalize speech the court said yes it's criminalizing speech it's okay why because if you say good things about the group or you speak to the group it'll then people will think good things about the group and we have an interest in delegitimating the group well that are if you take that argument and you apply it to the communist party cases they all would have come out the other way right the supreme court ultimately ruled you can't make it a crime to advocate communist doctrine you can't make it a crime to be a member of the communist party you can't make it a crime to associate with and support the legal ends of the communist party those are all unconstitutional because they penalize speech and association but under this decision congress would simply have had to say well we wanted to delegitimize the communist party which is of course exactly what they did want to do and that was never accepted as a justification for criminalizing speech so I think that's a very very dangerous precedent to give the government the power to say we can make your speech a crime if we don't like what you're saying about a particular group because it quote-unquote legitimate doctrine. If I may just clarify one thing it is dangerous to well let me step back and say this whole area is probably difficult because this is the intersection of national security law enforcement and speech terrorism is fused with philosophy it's not like drug dealing which is just all about making money terrorism always has some end expressive end and so therefore you it's fraught with difficulty that being said in this case the Supreme Court made it very clear that if I got walking out in the streets right now and said you know go PPK I'm behind everything they say that's not against the law I can independently advocate on behalf of the ends of all these terrorist organizations and I have not violated the law and the court is very clear about that it's only if I do so in coordination with that terrorist organization than then the Department of Justice says wait a minute that would be material support. And the court was very clear all the court said was that the government concedes that independent advocacy is not prohibited but we're not going to decide and we're not going to tell you what kind of coordination turns your advocacy into a crime so when the New York Times published an op-ed by the Hamas leader saying what Hamas wanted or the Washington Post and the LA Times all did that they coordinated with that Hamas leader to take his words, edit his words publish his words, provide a service to him in coordination they weren't engaged in independent advocacy should that be a crime and the court didn't answer that question and so again you've got this tremendous chilling effect where you really yes you can speak if you don't ever talk to the group you can speak up on its behalf but if you ever talk to the group it's a crime if you speak up on it. Chad? A quick comment that Lefty Pinko President Richard Nixon when he went to China I think was probably saying that he was definitely not legitimizing the PRC it kind of depends what you say to the PRC it seems to me but really what we're all saying in a way is that we need more visibility into the process of both listing and delisting and that could be helpful. I don't know the last time somebody was delisted maybe some experts in the panel who do know but if this list keeps getting longer and longer what it means is that there are fewer and fewer people we can talk to we Americans can talk to or anybody who receives American funding can talk to correct me if I'm wrong but I believe it was actually the Taliban about three months ago it was I've got one I've got a question more of a statement from our overflow group we've got two rooms full of people who weren't able to fit in here this is more of a statement than a question but addressing the fungibility and giving monetary support to group for humanitarian purposes couldn't money be used to actually build a hospital rather than giving money to a terrorist group designated group to build the hospital in case the money was to be diverted for another purpose so as I say it's more of a statement than a question yes take the microphone this is Derek Brown with the peace appeal foundation but we joined the amicus brief that David filed not that David filed but the ACLU filed this is probably a question for Ambassador Crocker which is I actually think it's perhaps more about the waivers or the process by which organizations at this point in time get clearance to have conversations but that said that sort of presumes a Soviet style mediation program where the U.S. government can anticipate whatever openings are there or can request openings and it seems to me and I would ask your comments of whether or not you think mediation as it has been practiced is far more chaotic it comes up much more randomly from the days in which Stan Scheinbaum first had contact with the PLO you know led to the opening up of the OSL process it seems to me we there's almost no way that proactively people who are engaged in mediation whether they're U.S. citizens can get the kind of clearances that would allow them you know they're going to have to take the risk at the end of the day well I'll jump in on this because I did ask the question to those who are legally trained I made the point up front that I'm not burdened with legal knowledge is it criminalized criminalizable behavior to meet with both sides in a civil conflict an armed conflict if one of the sides is on the list if they pay for their coffee and you pay for your coffee mediation works best with Italian food but in this case in this case you'd go Dutch is it illegal to meet with both sides not to train or to advise or to provide expertise but to start a process as a track 2 organization I see John Marks over there with the distinguished track 2 organization there's probably a lot of others here in the room as well as this one right here we're not an NGO we're a quango we're quasi something but I think the lawyers you have to answer that question lawyers are not good at answering questions we raise questions but but I think I'll tell you what the government said they said you can join a group that's on the list you can become a member because the Supreme Court hasn't overturned the case of saying you have a right to be a member you can go and talk to members of the PKK but if in talking to them you give an answer that's based on any kind of specialized knowledge or you provide any kind of service that might be of benefit to them then you're violating the law so mediation could be construed as a service to both parties and therefore of benefit to both parties and therefore a crime and if you're an expert mediate maybe if you're a really ignorant mediator and you have no you have no specialized knowledge if you're an expert mediator then you're providing your expertise so it's it's very at the oral argument Chief Justice Roberts said to the government you can go talk to these groups but if you give them an answer that's construed to come from some kind of expertise it's a crime I don't see how anyone could understand this statute that's what he said but then he wrote a decision saying it's perfectly clear no problem and it's constitutional I'd just like to add in terms of the waivers what we are proposing that the secretary of state do is issue a general waiver that would contain clear standards that could be used by groups engaged in peace building rather than having to go on a case by case basis and get permission it's inefficient but it also creates it taints the proceedings by putting a state department greener red light on a particular group just to follow up on that I think that's a great idea and there is precedent for it there is a general waiver for certain forms of legal services to these designated organizations and they've got categories so you don't have to go ask them there's a general waiver so a general waiver would be a way to get a categorical exception for some kind of peace initiatives it doesn't require congressional legislation so it could be done by the executive which might be more amenable than congress and certainly more rational or hopefully more rational so that's a great suggestion John I'm John Marks from search for common ground and as Chet just said we engage in this kind of activity but not with organizations like al-qaeda and I would draw a real distinction here between let me just say al-qaeda probably four or five others in the world and then others on that list there's a group on that list that the U.S. government protects in Iraq because they have a political reason for protecting them are the soldiers who protect the compound of one of those organizations in violation of this law that list is a very uneven list there's a group that recruits from Brooklyn for members in Israel in that list and so the thing that I object to I think about the most and I'm not talking about the larger constitutional argument that David would bring out but is kind of the deprivatization of track two diplomacy the fact that now we have to go for a license or a waiver to the U.S. government or at least looking at that which over the years expertise has grown up a way of dealing with problems I mean, while Chet was doing his great mediation in southern Africa there was a private group called San Egidio that was doing the same thing in Mozambique with a group that absolutely would have been on that list if it existed, Ranama these were terrorists to their core and after five or six years they were able to mediate a peace settlement which eventually the governments came back in but it probably wouldn't have been consistent well it depended on which government it probably wouldn't have been consistent with U.S. government policy at the time to do it it's an Italian group but would they have been given a license or a waiver to do this and I just think what we're doing here is using a sledgehammer to deal with a problem that calls for a great deal of sophistication their groups and then their groups and I don't have any answer to remedies I think the general waiver one that you brought up is an excellent idea but it's something that could really have a profound impact on the work that many of us in this room do and that's why we're so concerned can I just to be fair here take the State Department side of the argument in responding to your very good point and that is nobody wants to engage with Al Qaeda you don't want to nobody in this room wants to and you say that there are groups on the list that are separate from that but it's a real challenge actually for those who are analyzing it and looking at the list every year to see whether there are links or not with Al Qaeda and some of those links might be actual operational links some of them might be these I think someone mentioned the entrepreneurial copycat type who might say they have a link with Al Qaeda but they don't really so it is very very difficult for the State Department as well to just say oh okay these are really the worst people on the list and here's some people that might be better it's not that easy and some of them do have these nefarious links behind the scenes that maybe you and I don't even know of so I think we have to take that into account as well back there now you yes hi Jim Joseph from Arnold & Porter in Washington I'd like to disagree with one thing Professor Cole said that lawyers don't answer questions they ask them I'm in the position representing groups that are part of K's network and others where I do have to answer these questions can we go meet with Hamas and do XYZ and Hamas I think is a very good example of one that creates very difficult issues the UK government doesn't consider them a terrorist organization the political arm of Hamas they've divided them into two the US does to bring humanitarian aid to parts of Palestine to build hospitals in Palestine even if you tried to build it yourself you'd have to get permits to do that you'd have to talk to the political arm of Hamas I mean how do you deal with these questions how do you answer them other than saying you have to rely on prosecutorial discretion which maybe you might have a sense that President Obama's administration wouldn't prosecute you but there's a five-year statute of limitations President Palin's administration might you know how do we answer these questions and is it just that we shrug our shoulders and say we really don't know any comment? other questions I think that just underscores why discretion is not sufficient and what the constitution what we ought to demand as citizens I think what the constitution demands is that there be a narrowly crafted law this is the opposite of a narrowly crafted law those questions arise because of the failure to draft it narrowly Chad just a quick reference back to the issue of legitimacy most of the organizations we're talking about have guys who live by the gun and have no future career prospects without a gun and most of these organizations also have people who have other kinds of skill sets shall we say and the best way to delegitimize the guys with the guns is to find a way to engage with the guys that don't have the guns or don't rely on those particular skill sets but obviously you've got to watch it case by case my problem with this whole conversation is who's making the case by case judgments is it the Supremes is it Justice is it Treasury, is it State, is it the Congress and it's very humbling to realize that there's no answer to that question right now yes, up in front of you my name is Mary Ann Stein and I'm the president of Private Foundation and the founding chair of the Fund for Global Human Rights which funds human rights organizations that are on the ground in the countries where the abuses are taking place and frankly we're bravely proceeding and making our grants but I think that we and many of our grantees are terribly threatened by this legislation and these court decisions and another one that I know David you're running in Amica's brief about is the Holy Land case where not only do we have the organizations that are on these lists but we now have organizations that aren't on the list where we can be found criminally implicated for making contributions if the government then announces ex post facto that these groups are associated with or controlled by the prohibited groups so I think we all have to keep in mind that's the direction this is going and that this is very problematic and I just want to pick up on some of the human rights issues the floods in Pakistan and all of groups who are possibly linked with terrorist organizations and some of them I believe are terrorist organizations on these lists I'm not as familiar with the contents of the lists as everyone else and yet we have millions of people who are suffering and material aid needs to get to these people yet some of them will come into the rubric of these decisions of material aid this is in my mind incredibly immoral and counterproductive we are in a battle for hearts and minds in Pakistan and this is something very troubling somebody else mentioned the issue of child soldiers a number of the organizations that the Fund for Global Human Rights supports are negotiating with terror groups to try to get them to stop conscripting children please it needs to be continued so I want to say two things one I think it's not just peace negotiations and mediation that needs to be looked at and in some way exempted or protected from this kind of a ban but it is there are kinds of activities that need to be looked at very carefully and and written out of the prohibition and I think I'm not sure exactly where that can happen but I also would suggest that the argument that you made Ken and I can't read your last name that isolating these groups is always the positive or by not dealing with them we delegitimize them I'm not sure we have the proof of that I think we may in fact have the proof that sometimes that's counterproductive and so I think the underlying premise here is not necessarily correct and really needs to be looked at and if it is correct it needs to be applied where it's really evidentially shown to be the case and in a way that is as productive as possible and the least counterproductive possible from a point of view of our national interest and the moral interests and humanitarian interests that are all connected here anybody want to comment? I just want to make one comment and that is you struggle with this as a philanthropy I also wear two hats and it's a very very difficult call and you don't want to get yourself in trouble and in fact if you look at the State Department itself and the USAID they've been in trouble for giving money there was one case of a Bosnian organization that received money that was a listed entity so if the government can't do it it's very hard with the information that they supposedly have it's very hard for private organizations but on the other side of the coin the point that you make about humanitarian assistance and how it's immoral to prevent people in those situations when receiving aid is well taken but is it also not immoral for the people who receive that aid to be using it for nefarious purposes? and I think this highlights a great challenge for the government as well I mean one has to understand that restrictions are placed not because they want to hurt people in floods but because there is a distinct possibility and the OFAC has long lists of cases where people actually do abuse money that they receive under the auspices of official aid so it's a conundrum and it's a very very complicated case that although it tugs at a heart strings is more difficult than perhaps one might suggest I'm not suggesting it's not very difficult and I'm saying that that's very difficult to do we'll take we'll take two more questions and then wrap up yes I'm Scott Gilmore with the American Bar Association Center for Human Rights I have two brief questions first this holder decision seemed to criminalize the provision of legal services which previously we might have thought to be constitutionally protected I'm curious if anyone would care to comment on how this decision has impacted the legal profession particularly in the light of other legal hurdles or reputational hurdles faced by lawyers who represent unpopular clients FTO's national security detainees the second question is also if anyone would care to comment on how legislative reforms might possibly allow us to more narrowly craft a material support law thank you well as I said there is a general license for certain legal services but they're relatively limited legal services so representing a designated group in challenging its designation is a generally licensed exemption so you don't need a license for that but for almost anything else you do and I don't know exactly how it's affected lawyers I do know that I've gotten calls from lawyers and law students concerned for example one was someone who was working with an organization that was helping immigrants, detained immigrants and the question was if we learn from a detained immigrant that he or she was a member of a group that's on one of these lists and again we keep talking about the 47 list but 47 group list but really the relevant one is the Treasury Department which is several thousand an individual who was a member of one of these groups then can we continue to represent him or are we providing our legal assistance, expert advice and violating the law and in the Supreme Court the justices asked the Solicitor General what about filing an amicus brief in this case on behalf of one of the groups on the list that would be a crime the Solicitor General said so that's you know so it has a real effect I think on legal services as well in terms of reforms I mean Kay suggested one the general I think there's two ways of legal reforms one is to carve out things we want to protect like peacemaking initiatives and like or humanitarian assistance in certain contexts and the other would be to more narrowly define the crime in the first place and that's the I think that's actually the more rational route but that's I think the tougher route that is something along the lines of what the Supreme Court said was constitution required with respect to the Communist Party that is you to be prosecuted for joining or aiding the Communist Party it was not enough for the government to prove that you joined and aided the Communist Party and the Communist Party engages in illegal activities they had to prove that you intended to further those illegal activities and then you are guilty but if you intended to further its civil rights work or its employment you know organized labor organizing work or what have you and did not intend to further its illegal activities then you are not guilty the Communist Party may be guilty but you are not guilty I think that's the principled line but I think that's very would be very very difficult to get enacted I think maybe some carve out for some kinds of very very sympathetic activities like peacemaking making efforts and human rights advocacy might be possible if I could the David's point about putting an intent element in there and that's actually the first thing everybody thought of and at first blush it seems to make sense well you can only actually face criminal penalties by providing support to a designated FTO if you intended to actually further that FTO's terrorist activities make sense the problem is it really isn't workable as a matter of enforcement because the reality is it would be impossible very difficult for us to prove up prosecutors I should say to prove up what your intent was I mean just to use a sort of absurd example it could mean that Al Qaeda could open up a hospital and I could then send a check to Al Qaeda say for the hospital in the little memo line and you know knowing full well that actually that could be used for the hospital it's going to go for terrorists you know for bombs and stuff but it would be possible for the government to prove up that I really intended to further terrorist activities as opposed to the charitable activities that's the problem that's why the Congress said look if you the intent required here is simply to intend to provide resources to what you know is a foreign terrorist organization or an organization involved in terrorism and that's just a very real problem we would not be able to prove those cases up and as a result much more much more support would go to terrorist organizations just to step back a second though everybody's correct here that the problem is one of line drawing and it's not unique in this area but the whole problem here is line drawing I agree that there should be a focus on a possible carve out for some kind of peacekeeping activities there already is a specific carve out in the legislation for materials religious materials or medicine that's already in the legislation so you're not going to be exposed to criminal liability if those are the type of materials you provide to an organization maybe something akin to that could be crafted for peacekeeping kind of activities the problem is further line drawing for instance saying well you know Al Qaeda obviously is a bad organization everybody agrees with that but what about Hamas some people agree some people don't it's hard to draw those lines and that's why the court said hey we put that in the hands of the executive branch that has the best information to make the policy decision as to which organization should be and should be on the rest if I could just say one word on this intent thing there are hundreds and hundreds of statutes criminal statutes that require the government to prove intent and it gets convictions every day every conspiracy prosecution requires proof that there was intent to further the end of the conspiracy every aiding and abetting prosecution requires intent to further the crime that you're aiding and abetting and the government gets those convictions so the notion that it's somehow be impossible to prove that because someone wrote a you know this is for hospitals and sent it to Osama bin Laden that he could that person couldn't be convicted I think is just begs credulely now I got I've got to respond to that the reality is you're right there's an intent element in absolutely every criminal provision and there is one in this one I've told you what the intent is that Congress requires but the problem is if you have let's take a Hamas if you have a senate check in the Hamas and you say I'm just doing this because I want to help Hamas out and Hamas takes that money and puts it right in the guns that it uses for terrorist activities there's no way we'll ever be able to prosecute a person like me and as a result the channels will be open to provide support to this organization so it's a very real problem unless I'm stupid enough to walk around in order to put in that memo this is for terrorism it really is going to be very difficult because these organizations, the dual organizations have two prongs to them and all I have to say as a potential defendant is hey I was going for the charitable prong not the other and I can tell you it would be very difficult but that's exactly the difficulty that the Supreme Court said the Constitution demands with respect to the Communist Party at a time when the Communist Party was the greatest threat to the United States in the world backed by the second greatest superpower with massive nuclear weapons directed at us and nonetheless the Supreme Court said you've got to prove intent I don't see why the same shouldn't be true with respect to Hamas I'd like to interject another angle at coming at this problem that could be part of a legislative fix which I think there's some Congress has a responsibility to do some oversight and some fact finding before they settle on a legislative fix and that includes getting information and taking advantage of the expertise of the NGOs that do this work on the ground and what a lot of the NGOs are thinking is good faith and due diligence should be taken into account here when it should be part of this line drawing process maybe you can't prove the intangible thing inside my head that is intent but I can demonstrate I acted in good faith to have the resources of my charity go for humanitarian aid or be used for peace building and I can show that by concrete steps of due diligence oversight and things that are well known practices within the NGO sector that I've engaged in and that can be demonstrated the problem has been especially in the Treasury Department to date a lot of the people in charge of the enforcement don't have the background in the NGO sector and the knowledge and expertise to really appreciate what those practices are and to understand how good faith can be concretely demonstrated through these visible kind of actions it's not an intangible thing that would have to be measured but in terms of legislative fixes there's nothing pending in Congress right now there's the first ever oversight hearing on these issues broadly including to process clear standards material support was held in the House in May and the first time since 9-11 if there's been any congressional oversight at all and more of that needs to happen and hopefully there will be some legislative fixes under consideration soon take one more question Hi, my name is Eric Miller at the moment I'm a private citizen anyway I'm also a political analyst for Central Africa but my question is that under the way the law seems to be construed the only alternative is war if you can't negotiate with anyone how can you even begin the process for conciliation, confidence building measures if it's simply let's say this terrorist organization or rebel group decides one day I would like to open up for peace negotiations work out some sort of amnesty deal but if you can't even send a liaison to meet with them to begin preliminary meetings then the only result is perpetual war and also Mr. Weinstein you said that you rest solely in the purview of the executive to make the decision which groups are terrorists but since we're all human and the executive is comprised of humans we make mistakes you know today's allies could be tomorrow's enemies tomorrow, yesterday's allies are tomorrow's enemies we gave weapons to the Mojadin and now there's Al Qaeda from their offspring and also we had contracts with Victor Booth one of the world's greatest arms dealers and this was out of the State Department in DOD so how can we say that the executive is going to get it just right and that if those same standards you apply to private citizens when the government can't even make the correct distinction well as the second half of your question keep in mind there is a process by which an organization that's on that list that's designated can challenge that designation I believe one of the two organizations here did challenge the designation and failed in the courts yeah but that's because the process is you get to say I shouldn't be on the list the government gets to say you should be on the list the government gets to put all its evidence in in secret and you don't get to put any evidence in so that's the process last time David and I went around the bush on this issue but it's there is a process for challenging and I agree that one of the good byproducts of this debate is sort of renewed scrutiny on who is on the list the problem is if it's not in the hands of the secretary of state should it be in the hands of every private citizen to make that decision I mean that who's going to do it and that's sort of what the court said the court said look it's really not our place to supplant the executive branch here the executive branch is the branch of government that has the best information maybe it's not perfect information maybe they don't use that and just make decisions with that information perfectly but their best position to make that decision like so many conversations in Washington one might think that there aren't any other countries in the world that face these issues but the 27 members of the EU are grappling with this they're doing it somewhat differently and I think we might learn from watching their process I hope we will watch it I'm not sure exactly where they differ but I do know that in case after case EU diplomats and people funded by the European Commission are pulling back from peacemaking precisely the same reason they pulled back in Sri Lanka they pulled back in Uganda and DRC and so forth I think there's going to be some experiential learning going on here with that we'll draw it to a close but I want to thank you for coming and thank our presenters