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As
a citizen of the United States where elected officials
frequently herald our democratic values, freedom and
liberty, social tolerance, jurisprudence and the Bill
of Rights, does it stand to reason that I should harbor
a degree of trepidation as I write the following essay?
Although I am aware that the US Court of Appeals for
the District of Columbia Circuit has ruled on the
very issue that I will provide further explication
for in this essay, am I justified in fearing potential
governmental retribution solely because of my political
viewpoint and sensibilities? As Howard Zinn wrote,
“I suggest that free speech does not become a
reality until people insist on it, struggle for it,
practice it, because corporate wealth, governmental
power, judicial decisions all limit that right.”
At the outset of this piece, let me state with no
equivocation, that what I pen here I write as an individual
of conscience, neither in an overt nor a veiled attempt
to solicit support for any organization and not to
serve as an endorsement of any organization. My words
are primarily directed to those who would deny the
freedoms of association, press, speech, and due process
and those who would deter the forward march of liberty,
equality and fraternity.
In May 2001 the US Department of State, in conjunction
and collaboration with the US Department of the Treasury
and the US Department of Justice [although Attorney
General Ashcroft oftentimes seems more preoccupied
with his sense of law as opposed to justice…hmm,
a topic for a future article?] proscribed the
Real IRA and included the 32 County Sovereignty Committee,
32 County Sovereignty Movement [hereafter referred
to as 32 County] and the Irish Republican Prisoners
Welfare Association [hereafter referred to as IRPWA]
as aliases of the Real IRA. These organizations were
thus designated as [FTO] foreign terrorist organizations.
According to State Department guidelines, the legal
criteria for designation is as follows:
(Reflecting
Amendments to Section 219 of the INA in the USA PATRIOT
Act of 2001)
-
It must be a foreign organization.
- The
organization must engage in terrorist activity,
as defined in section 212 (a)(3)(B) of the INA (8
U.S.C. § 1182(a)(3)(B)),* or terrorism,
as defined in section 140(d)(2) of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989 (22
U.S.C. § 2656f(d)(2)),** or retain the capability
and intent to engage in terrorist activity or terrorism.
- The
organization’s terrorist activity or terrorism
must threaten the security of U.S. nationals or
the national security (national defense, foreign
relations, or the economic interests) of the United
States.
Furthermore,
the legal ramifications of the designation on US citizens
and other persons under US jurisdiction are as follows:
-
It is unlawful for a person in the United States
or subject to the jurisdiction of the United States
to knowingly provide "material support or resources"
to a designated FTO. (The term "material support
or resources" is defined in 18 U.S.C. §
2339A(b) as "currency or monetary instruments
or financial securities, financial services, lodging,
training, expert advice or assistance, safehouses,
false documentation or identification, communications
equipment, facilities, weapons, lethal substances,
explosives, personnel, transportation, and other
physical assets, except medicine or religious materials.)
- Representatives
and members of a designated FTO, if they are aliens,
are inadmissible to and, in certain circumstances,
removable from the United States (see 8 U.S.C. §§
1182 (a)(3)(B)(i)(IV)-(V), 1227 (a)(1)(A)).
- Any
U.S. financial institution that becomes aware that
it has possession of or control over funds in which
a designated FTO or its agent has an interest must
retain possession of or control over the funds and
report the funds to the Office of Foreign Assets
Control of the U.S. Department of the Treasury.
The
32 County and IRPWA organizations as well as their
US members and supporters secured the pro bono legal
services of a Washington, DC based law firm and filed
a petition for judicial review of the designation.
The appeal was based on deprivation of constitutional
rights such as the Fifth Amendment right to due process
of law and the First Amendment right to free speech
and association as well as US Code concerning statutory
jurisdiction, authority and substantial support in
the administrative record. The petitioners’ brief
states that, “…petitioners do not engage
in terrorist activity and are not an alias for, or
also known as, the Real IRA…there is no record
support that petitioners engage in terrorist activity…petitioners
have no activities other than engaging in political
speech about the peace process in Northern Ireland
and fundraising for lawful political and humanitarian
purposes, and the record does not establish that petitioners
have furthered any illegal activities of the Real
IRA.”
As
a result of the designation, however, the US members
and supporters were compelled, among other things,
to close a post office box, close a bank account,
discontinue maintenance of a website, and cease all
lawful political advocacy. The State Department made
the designation based principally on information supplied
by the British and Irish governments as well as public
domain information. According to the Summary of the
Administrative Record,
“…In
particular, we have placed a heavy emphasis on detailed
information furnished directly to us by the governments
of the United Kingdom and the Republic of Ireland.
The U.S. Government depends on those two governments
for information concerning terrorist activities
in Northern Ireland. The British and Irish security
and intelligence devote considerable effort to collecting
information on groups in Northern Ireland and we
trust the experience of those two governments in
analyzing this information and assessing its credibility.”
As
opposed to the Real IRA, which is banned, 32 County
and the IRPWA are perfectly legal in both the United
Kingdom and Ireland. The British and Irish governments
evidently “do not have credible evidence that
petitioners engage in terrorist activities.”
Moreover, the British Government has concluded that
these organizations engage solely in lawful political
speech and legitimate fundraising efforts. British
Lord Williams of Mostyn has been quoted as saying,
“My
Lords, a clear distinction needs to be made between
the expression of political attitudes, opinions
and beliefs and the actual commission or instigation
of terrorist crime…on the basis of the evidence
currently available, the Government assess(es) that
the 32 County Sovereignty Movement is not concerned
in terrorism, as defined in statute.”
Lord
Williams also stated that, “It is not unlawful
[in the United Kingdom] to raise funds for purposes
which are not terroristic,” and when asked by
Lord Swinfen if there was any indication that 32 County
passed funds to the Real IRA replied, “My Lords,
I know of no sufficiently admissible evidence which
would sustain a criminal charge.” The position
of the British Government is clearly that fundraising
for political purposes is not illegal. It does not
stand to reason then that these organizations should
be outlawed in the United States. As the petitioners’
brief notes, “Although the United States government
has claimed that it relied upon information provided
by the British and Irish governments, those governments
have refused to ban petitioners, and the British government
has expressly recognized that petitioners are engaged
in lawful political advocacy and fundraising.”
The integrity of American democracy is at issue here.
As the petitioners’ brief elucidates, “Advocacy
is a cornerstone of the First Amendment.” Political
advocacy is greatly enhanced when people pool time,
energy, talents and resources. As is cited in the
brief, the US Supreme Court has noted that, “It
would indeed be ironic if, in the name of national
defense, we would sanction the subversion of one of
those liberties – the freedom of association.”
The Court of Appeals, in this instance, chose to frown
upon political advocacy and expression, curtail the
freedom of association and generally punish citizens
for holding what some might interpret as an unpopular
opinion. The petition for judicial review was tersely
denied.
So, what is an American patriot to do? I propose to
utilize all potential avenues of conventional constitutional
politics in an attempt to overturn this designation.
It is unlikely that Secretary of State Powell will
revoke the proscription on 32 County and the IRPWA.
The court system alternative for reversal has been
exhausted. The remaining option is to lobby and petition
for an Act of Congress. I have no idea how difficult
this task may become and no crystal ball to inform
me of what may lie down the road but I do know that
the US Department of State is emphatically wrong in
their designation of 32 County and the IRPWA and I
do know that the US Court of Appeals for the DC Circuit
unilaterally erred in its finding in this case. I
know that my constitutional rights have been trampled
upon by the Executive Branch acting in an arbitrary
and capricious manner. Lastly, I know that I, as a
citizen of conscience, will not go quietly, will not
submit and will not acquiesce to this flagrant injustice.
This political battle begins now and I encourage all
people of good sense and good will to join in this
effort. Resistance is not a dirty word.
I have established an email account for use in this
endeavor so I may be contacted at actofconscience@hotmail.com.
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