Tuan N. Samahon and Dr. Jeffrey F. Ringer, Political Science
Contrary political crosscurrents beset the conduct of U.S. counter-terrorism policy. While Washington actively supports numerous friendly governments and their various peace initiatives, constitutional permissiveness and ineffective legislation enable American nationals to subsidize terrorism against these very same governments and initiatives. The U.S. counter-terrorism policy dilemma, then, is to craft a politically viable counter-terrorism program that effectively blocks domestic subsidies of terrorism abroad, while yet avoiding First Amendment right violations.
Two recent legislative efforts, the 1994 Crime Bill and the Omnibus Counter-terrorism Act, propose differing ratios of security from terrorism to First Amendment protection. Representing a high ratio of First Amendment expression to terrorism prevention, the Crime Bill explicitly prohibits any investigation for “activities protected by the First Amendment to the Constitution, including expressions of support or the provision of financial support for the nonviolent political…goals or beliefs of any person or group.”1 Such a caveat for investigations, combined with fungibility loopholes, paralyzing evidence requirements, and overly wide protection of fund raising activities, combine to undo the Crime Bill’s ostensible purpose of cutting “material support” to terrorists.
In contrast, the 1995 Omnibus Counter-terrorism Act proposed a ban on “providing funds, directly or indirectly, to foreign organizations, including subordinate or affiliated persons, designated by the President as engaging in terrorism.” To 2 enforce this ban, the Omnibus proposal included new federal electronic surveillance powers and exacting accounting measures to discourage “nonviolent” political organizations from engaging in aid fungibility. However, even in the wake of renewed Hamas, Hezbollah, and Islamic Jihad bombing campaigns against Israel, a bipartisan Congress still gutted the Omnibus Act’s fund raising measures to protect First Amendment freedom of expression.3 Whereas the 1994 Crime Bill emphasized First Amendment right protection, the Omnibus Counter-terrorism Act’s sweeping measures accented security.
The crime Bill’s failure to effectively prevent the material support of terrorists and Congress’s inability to enact the Omnibus Act strongly suggest that a law enforcement approach to counter-terrorism alone will not suffice. Since First Amendment protected fund raising for “nonviolent” purposes (viz 1994 Crime Bill) inevitably benefits terrorists, law enforcement approaches to counter-terrorism encounter insurmountable difficulties. Whereas a vigilant law enforcement measure could resolve illegal fund raising, legal fund raising escapes such counter-terrorism programs unscathed. Moreover, as the fate of the 1995 Omnibus Counter-terrorism Act suggests, legislation that criminalizes presently sanctioned non-violent fund raising is politically unpopular and perhaps unconstitutional.
As an alternative to such law enforcement counter-terrorism programs, the Logan Act suggests a possible avenue for U.S. counter-terrorism policy. Specifically, the Logan Act prevents unauthorized U.S. citizens—and by extension its nationals—from either “directly or indirectly” attempting to influence foreign governments and thereby undermine the U.S. government’s foreign policy posture. The Act’s long inactivity 4 renders recourse to it as a solution very unlikely. But the Logan Act’s corollary would still seem to hold true for today’s counter-terrorism policy dialogue: If U.S. nationals acting abroad “with an intent to influence the measures or conduct of any foreign government”5 do so without Washington’s voiced disapproval or chastisement, their actions-in the eye of beholding U.S. nationals and foreign allied governments alike, receive tacit approval.
This tacit approval lends legitimacy to terrorist organizations. Since legitimacy justifies a particular group’s continued existence and activities, undermining terrorist legitimacy would contribute to undermining a group’s continued existence. To combat such legitimacy, the U.S. could adopt a political counter-terrorism program calculated to undercut the legitimacy of U.S. national sponsored terrorist groups. For instance, the U.S. could employ consular diplomatic weapons, against groups and individuals. A largely unused political tool that could act as a hedge against terrorist legitimacy would be depriving terrorist front groups of much needed visas to reach U.S. backers. Not only would this have the effect of blocking direct terrorist fund raising in the U.S., it would send a strong message of disapproval to U.S. nationals funding these groups. Recent events surrounding long time persona non grata Sinn Fein leader Gerry Adams have reinforced the inverse effects of visa granting; in granting Adams a U.S. visa, President Clinton both imbued the IRA with renewed legitimacy and undercut Anglo-American relations.
To be sure, a U.S. unilateral response against terrorist groups will not single-handedly resolve global terrorist threats; any comprehensive solution will certainly require multilateral action. But in the very least, by respecting the Logan Act corollary, Washington would send loud and clear signals to U.S. nationals, foreign governments, and terrorists, of an American commitment to legitimate government and consistent counter-terrorism policy.
References
- U.S. Code, 1994 Crime Bill, Title 18, Section 2339A (1994). 1
- U.S. Congress. House, Omnibus Counter-terrorism Act of 1995. 104th Cong., 2d Sess., H.R. 896.(1995) Draft bill. 2
- Stephen Labaton, “House kills sweeping provisions in counter-terrorism legislation,” New York Times, 14 March, (I 996) 1 A; II A.
- Jean Smith, The Constitution and American foreign policy, St. Paul: West Publishing Company (1989) 171.
- Ibid, 171.