HLP President Ralph Fertig on the Antiterrorism and Effective Death Penalty Act of 1996

With the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the United States government gave unfettered and effectively unreviewable authority to the Secretary of State to designate any group "as a foreign terrorist organization" and to punish by fine, imprisonment for up to ten years, or both "whoever...knowingly provides material support or resources to [it]...or attempts or conspires to do so..."

The law defines "material support" broadly to include, among other items, "lodging, facilities, training... personnel, transportation, and other physical assets except medicine or religious materials." Under the vague terms of the law, anyone subject to U.S. jurisdiction who contributes blankets or baby food to refugee camps administered by a group designated by the Secretary of State as "terrorist" could be fined and imprisoned for ten years. Anyone who meets with members of such organization to train them for appearances before the United Nations or the policy makers of any member government, or who in the course of these activities, provides lodging or personnel to the designated group, could also face a ten year sentence.

In October, 1997, the Secretary of State designated 30 groups as foreign terrorist organizations. Among those named was the Kurdistan Workers Party (the PKK) which had repudiated terrorism and was engaged in the kind of liberation struggle recognized under the Geneva Protocols.

The Humanitarian Law Project/ International Educational Development (HLP/ IED) challenged key provisions of the AEDPA in U.S. Federal District Court, arguing that it:
          (1) unconstitutionally criminalized the provision of humanitarian aid to the PKK;
          (2) infringed the right of free speech and chilled the right of free association with the PKK;
          (3) granted the Secretary of State authority in violation of the First and Fifth Amendments;
          (4) and that taken as whole, the law was unconstitutionally vague.

The federal trial court enjoined the government from enforcing those provisions that prohibited the providing of "personnel" and "training" on the grounds that such terms were unconstitutionally vague. Members of the Humanitarian Law Project are free to advocate and to train and provide personnel to the PKK for the purposes of advocacy and training in non-violent expressions of their cause.

However, the court denied all other claims. It affirmed the law that bars humanitarian aid, and that allows the Secretary of State to chill the rights of free association (abridging the protection of the First Amendment) without due process of law (as otherwise protected by the Fifth Amendment). While recognizing that the First Amendment protects the expressive component of seeking and donating funds for political advocacy, the court refused to recognize such protection for groups cited by the government under the AEDPA.

The Ninth Circuit Court of Appeals affirmed the trial court decision on all points. The limited rights granted to HLP/IED and its co-plaintiffs are specific. It is not at all clear whether any other group or individual has the same protection, particularly if he, she, or it operated anywhere other than in the Ninth circuit, an area embracing the West coast of the United States.

The White House may thus continue to use a mere allegation of "terrorism" to place any group beyond the reach of humanitarian aid or even association with persons of good will who are subject to US jurisdition. The US Administration need not document its basis and does not allow the group so labeled to review the grounds on which such determination was made. It ill behooves the U.S., the major opponent to an International Criminal Court that would investigate and try crimes against humanity, to flout well established principles of human rights law. The AEDPA denies the right of the accused to face its accuser or to be tried on the basis of evidence. It denies those arbitrarily named by a covert procedure their right to liberty or resources without due process of law. It violates the most fundamental premises of equity and fair play.

Ralph D. H. Fertig, President, Humanitarian Law Project/International Educational Development