This Raid on Peace Activists Brought to You By Elena Kagan

This article not only describes the hundreds of people who protested FBI raids of peace activists last week, but it provides more detail on what the FBI was looking for.

Agents were seeking “evidence relating to activities concerning the material support of terrorism,” the FBI said. Chicago FBI spokesman Ross Rice declined on Monday to discuss what agents were looking for, citing an “ongoing criminal investigation.” There have been no arrests.

Search warrants and subpoenas indicate authorities are looking for connections between the activists and groups including the Revolutionary Armed Forces of Colombia (FARC), the Popular Front for the Liberation of Palestine (PFLP) and Hezbollah. The U.S. government considers those groups to be terrorist organizations.

[snip]

Sundin said Monday she met FARC rebels when she visited Colombia in 2000, but noted that the Colombian government was holding peace talks at the time with the rebels, who held public forums where she met them. She said she has had no contacts with FARC since.

Kelly and Sundin acknowledged they’re active in the Freedom Road Socialist Organization, a group named in several warrants that openly supports FARC and PFLP and shares their Marxist ideologies. Two groups use the name after a 1999 split. They said their Freedom Road is a small group, but that they weren’t sure how many supporters it has. Kelly edits its newspaper.

These descriptions suggest that the FBI is raiding a bunch of peace activists it tracked during the RNC Convention to establish attenuated ties between them and at least three groups on the Foreign Terrorist Organization list.

What’s particularly interesting is the description of the work these activists were doing in Palestine and Colombia.

“We meet with human rights activists in other countries to get understanding of situations they face,” said Yorek.

Sundin said committee members use the trips to gather information that the group then uses in presentations to the public back in the United States.

“All trips always been very public,” Sundin said.

Aby said that in Palestine, committee members met with the Palestinian Women’s Commission and another group that advocates for Palestinian prisoners in Israeli jails. In Colombia, she said members met with representatives of Colombian unions.

“In Colombia, you’re considered to be a FARC supporter if you’re a member of a union,” Aby said. Critics of current Colombian President Juan Manuel Santos or former president Alvaro Uribe were also considered supporters of the FARC by Colombian authorities.

That is, after meeting with groups that the authorities in the country have an incentive to claim are terrorist groups, they come back to the US and publicize the conditions in the country.

Law Professor Peter Erlinder has said repeatedly precisely what I’ve been thinking about these raids since they happened: SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.

Congress has prohibited the provision of “material support or resources” to certain foreign organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a finding that the specified organizations “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations. Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and that applying the material-support law to prevent them from doing so violates the Constitution. In particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it infringes their rights to freedom of speech and association, in violation of the First Amendment. We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute inthe future.

Obviously, the six justices (the conservatives plus Stevens) who made peace activism material support for terrorism deserve the bulk of the blame for this decision. But this was also the argument where then Solicitor General Elena Kagan advocated for the broadest interpretation of the statute.

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

And lo and behold, just three months after this decision, the FBI is investigating a bunch of peace activists for their efforts to foster peace in areas contested by these terrorist organizations.

Now, I have no idea what Kagan thinks about this raid (though she used Hezbollah as her example in the argument, not the Tamil Tiger groups actually named in the suit, and Hezbollah is one of the organizations named in the warrants). But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

GENERAL KAGAN: First, because with respect to overbreadth, all of those uncertain or even unconstitutional applications will be but a thimbleful, compared to the ocean full of completely legitimate applications of this statute.

[snip]

GENERAL KAGAN: Of course, that’s a different thing as to how prosecutorial judgment is used to decide which are the high-priority cases and which are the low-priority cases.

Or maybe she just badly misinterpreted what FBI’s priorities really were.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

  1. BoxTurtle says:

    We have reached the stage of thoughtcrimes.

    Btw, you got some good advice about Single Malt in the last thread. I would only add that the range of flavors in single malt is as wide as the range of flavors in soda pop. Don’t assume it’s not for you if you don’t like the first ones you try.

    Boxturtle (Heck, if I give to a moslem begger on the street I could be charged with material support)

  2. phred says:

    Perhaps it’s just as well that Obama has made so few judicial appointments. He seems to be an exceedingly poor judge of talent. Unfortunately, we’re stuck with Kagan. She can’t be forced out to run for Mayor of Chicago.

    • BoxTurtle says:

      He seems to be an exceedingly poor judge of talent.

      Do not assume that. It would be safer to assume the sort of person ObamaLLP wants is simply not the sort of person a progressive would want.

      Kagan was perfect. No background, no paper trail, easy confirmation, and she’ll do what Obama says.

      Boxturtle (Perhaps, rather than Chicago, Podunk is looking for a mayor)

      • phred says:

        With all due respect, evidence of a total lack of talent in this administration is all around you. Obama’s Presidency is imploding because he put his faith in the wrong group of people. Sure he managed to help his rich buddies get richer, but in a manner so blatantly corrupt that the whole world can see it. And now it is going to cost him and his party dearly at the polls.

        The Obama team is comprised of a whole herd of bulls in a small china shop, destroying everything around them. A lighter touch could have achieved the same ends far more discreetly and effectively for the MOTU in the long run. Clearly, the MOTU are not pleased with the results they are getting, so even they have turned on the guy who has been pretty much handing them free money ever since he got to town.

        When O is getting slammed by a Wall Street guy and a middle class African American vet at the same time, you are looking at a man without a base. He’s managed to piss off everyone, which requires real talent, since most people choose a side.

        I stand by my statement. Even if Obama’s goals were entirely different from mine from the get go as appears to be the case, he chose talentless, inept, and incompetent people to achieve them. And now his administration is on the verge of a total collapse.

        • BoxTurtle says:

          Oh, I agree with everything you’ve typed. In spades. My point is that those folks seem to be the type of people Obama likes. Even a blind squirrel finds an acorn every so often…unless he’s NOT looking for acorns. Other than Hillary, I can’t think of a single person Obama has appointed that I’d describe as anything more than passibly competent.

          Boxturtle (But the fact that his admin is imploding around him is the fault of DFH’s, especially Jane)

          • phred says:

            LOL — IT’S ALL JANE’S FAULT! (hic, snort : )

            Wouldn’t you just love to hear the string of expletives that Rahm would work into any sentence with Jane’s name in it? ; ) Sailors would be taking notes ; )

            • BoxTurtle says:

              I don’t think they speak Jane’s name around the White House…she’s refered to as “That Woman”.

              Boxturtle (I’ve heard if you speak her name three times, she appears and bites your head off)

        • bigbrother says:

          Want more war funding…accuse Obama of being a Muslim. No problem more war funding. Main street take a hike, close up your shops and go camping with the
          rest of the homeless.

  3. klynn says:

    Well, it sounds like anyone with a background in cross cultural mediation, development work or international conflict resolution for INGO’s should just turn themselves into their local jail. That means all of the US citizens working with the International Red Cross and based here in the U.S. or abroad, just stop what you are doing right now and turn yourselves in. It will save time and money. /s (sort of).

    Hey missionaries around the world doing relief working and building schools, turn yourselves in.

    • BoxTurtle says:

      I’m thinking there are a LOT of worried lawyers at the Red Cross, or indeed any international aid group. Is the Red Cross operating in Gaza? If so, they’re automatically in violation since Hamas is defined as terrorist. If they’re in Somalia, odds are they’ve helped at least one rebel medically.

      Boxturtle (And consider for a moment UNICEF, which is based in NYC)

      • klynn says:

        Actually, I have been hoping the lawyers from INGO’s here and around the world would come together for a statement on this concern.

        There are also missionaries and relief organizations that are church based INGO’s doing all kinds of relief work globally and could have US citizens working for them.

        UNICEF lawyers could be very helpful in organizing a voice of concern.

            • DWBartoo says:

              Coming right up!

              [You must be planning on doing some deep thinkin’ today, klynn – hope ya post yer thoughts. ;~}]

              DW

          • eCAHNomics says:

            Speaking of kool-ade, wanted to mention that I saw your eloquent support of me on the thread earlier today, and was deeply touched. I had left becuz my beekeeper was coming (so not out of peeve at the thoughtless comment) but did check back once he left.

            I was surprised at how several commenters showed so little unnerstanning of what the real lives of the working poor are actually like, and how O’s comments would fall on their ears.

      • DWBartoo says:

        I guess this is where I start to wonder, Box Turtle, why it is that members of the American legal “establishment”, attorneys, professors of law, and even judges, are not speaking out and taking a stand against the ongoing “legal” madness?

        By now, it must be obvious to any number of people who “practice” the law or make their “living” at the law, that dangerous “patterns” of abusive and destructive “policy” are undermining the rule of law, that Constitutional due process is being deliberately subverted to the basest of political ends.

        If those who understand do not or will not speak up, then how may the rest of us even begin to understand what is going on?

        How much more will it take?

        DW

        • BoxTurtle says:

          why it is that members of the American legal “establishment”, attorneys, professors of law, and even judges, are not speaking out and taking a stand

          Some are…well, at least two, bmaz and Mary. :-)

          Why aren’t they speaking out? Because these new laws will generate LOTS of billable hours!

          Boxturtle (that, and Professor Yoo and Judge Bybee are just too busy to get involved)

          • DWBartoo says:

            Mary and bmaz as well as phred and a number of others here, at FDL, are certainly speaking out Box Turtle, coherently and well.

            However, they could use a little help …

            Don’t you agree?

            If the lawyers in Pakistan, collectively, found their voice, at least once, then American lawyers look to be suffering from a most curious loss of the ability to speak – at least about certain things.

            DW

            • BoxTurtle says:

              But how do we help them without materially supporting terrorism? By defination, we’re guilty if we do anything that impedes the WoT and attempting to secure basic civil rights for all would certainly impede the war if we were to succeed.

              Boxturtle (Attn DoJ monitor: I ain’t saying nuthin’, just sayin’)

              • DWBartoo says:

                What nation on this planet is the “greatest’ purveyor of “terrorism”?

                If we are to be honest?

                I’m having a hard time separating the fixated “them” from “us”, and in the “final’ analysis, it would appear that the Obama Administration is bothering themselves overmuch about that “separation”.

                If we are to be honest.

                (BTW, Box Turtle, you are certainly in “THEIR” files and under “THEIR” scrutiny – as are any of us who consistently speak our thoughts aloud and share a concern for principle. I wonder if any of the “watchers” enjoy any of our collective humor, or whether it merely pisses ’em off all the more?)

                DW

            • donbacon says:

              If the lawyers in Pakistan, collectively, found their voice, at least once, then American lawyers look to be suffering from a most curious loss of the ability to speak – at least about certain things.

              Humanitarian v. Holder
              June 21, 2010
              JUSTICE BREYER, with whom JUSTICES GINSBURG and SOTOMAYOR join, dissenting.

              Like the Court, and substantially for the reasons it gives, I do not think this statute is unconstitutionally vague. But I cannot agree with the Court’s conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives. In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government’s compelling interest in combating terrorism.

              http://ccrjustice.org/files/Holder_HLP_Decision-2010.0621.pdf

              WASHINGTON, June 16, 2009 — Judge Sonia Sotomayor expressed skepticism in March 2003 about the expanded government surveillance powers in the USA Patriot Act, citing what she referred to as its broader authority “to impose nationwide wiretaps with little judicial supervision” and to monitor Internet use in search of terrorists.

              “Whether and how these statutes will be challenged in court is difficult to discern, but suffice it to say that traditional Fourth Amendment law does not permit searches and seizures without particularized suspicions of illegality,” Judge Sotomayor told law students in a guest lecture at the Indiana University law school in Indianapolis six years ago.
              http://www.nytimes.com/2009/06/17/us/politics/17documents.html?_r=1

              • DWBartoo says:

                I appreciate those links, donbacon, yet wonder how many people, including attorneys, have seen them and why these clear and important doubts and questions are not ballyhooed across the land?

                Supreme “doubts” ought to have at least some “shelf-life” before the “sell by” dates inches past.

                The overall silence, on the part of the majority of the legal “establishment”, remains, as yet, deafening.

                DW

                • JamesJoyce says:

                  The overall silence, on the part of the majority of the legal “establishment”, remains, as yet, deafening.

                  Like Silent Germans…

    • spanishinquisition says:

      That’s one way to keep Stern in line so that he gives Obama exactly what he wants on the Catfood Commission.

  4. tjbs says:

    Terrorism is the 21st century Mc Cartyism.

    Same methods same results, guilt by association.

    This is suppression of free expression with an Through the Looking Glass court system.

    You can’t see the evidence, call rebuttal witnesses held by your accusers or be represented by an attorney without their clearance.
    Nifty system.

    On top of all that we pay private HS clowns in Pa to homeland secure us over and above the State police. And what threats did they uncover resulting in interruption of a plot, none but they sure did spy on the anti war protests and each protest I’ve been at has been heavily filmed by the authorities.

  5. Frank33 says:

    Kagan also protected the Saudi spymasters who financed the 9-11 attacks. Families of 9-11 victims tried to hold Saudi Arabia accountable, and reveal its involvement in 9-11. Kagan defended the Oil Sheiks and prevented justice for the victims and survivors of 9-11. The deaths of 3000 people are a justification for wars but the murderers are protected by the traitor Kagan.

    Yesterday it was revealed that at least $130,000 was transferred to the hijackers by sources not yet unidentified. I am guessing Saudi Arabia and Pakistan.

    Kagan is at war with the citizens, or should I say the citizen-slaves of the USA. Obama’s wars violate international law but supporting peace is now a crime according to Obama’s shill. Just the same as Vietnam. Bringing The War Home.

  6. donbacon says:

    The basic problem is the endless war. The Supremes, I believe, have never interfered with the Executive prerogatives to conduct a war. The war on terror, the war on drugs — all’s fair.

    The Supremes have also refused to consider appeals that the Congress has unconstitutionally transferred its war powers to the Executive, specifically with the War Powers Act and the AUMF.

    The Supremes have a reverence for executive privilege, particularly in wartime.

    James Madison warned about the general problem of wars:

    Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few.
    In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people…. [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and … degeneracy of manners and of morals…. No nation could preserve its freedom in the midst of continual warfare.

    • DWBartoo says:

      Well, as is intoned with deep and most-proper gravitas, “911 changed everything”.

      The ruling classes are now fully engaged in ” … subduing the force of the people …”

      DW

    • phred says:

      The Supremes, I believe, have never interfered with the Executive prerogatives to conduct a war. The war on terror, the war on drugs — all’s fair.

      This is a really important point. I have always considered our marketing strategy of declaring war on everything (poverty, cancer, drugs, terror…) as simply a poor analogy.

      It never occurred to me (until W) that what was essentially a PR slogan could be manipulated to imply a legal framework to create a completely unfettered President.

      This has got to stop.

      I know, lets have a War on Wars! ; )

  7. donbacon says:

    Hillary Rodham Clinton, Secretary of State, at the UN Security Council Meeting on Threats to International Peace and Security, yesterday.

    Counterterrorism demands a comprehensive approach, as reflected in the presidential statement that will be adopted at the conclusion of today’s meeting.. . .we have to provide an alternative view that is rooted in hope, opportunity, and possibility. . . .So that means enacting policies that do create new opportunities for people to build a better future for themselves, strengthening our commitment to core values, particularly human rights and the rule of law. We cannot sacrifice those values in our zeal to stop terrorists. Our values are what makes us different . . .So as we work to do – defeat terrorists worldwide, we cannot abandon our values; we must defend them.

    http://www.state.gov/secretary/rm/2010/09/148057.htm

    • DWBartoo says:

      Those are very pretty and even stirring words, donbacon, however, considering their source … those words, somehow, do not ring true.

      In my opinion.

      DW

  8. donbacon says:

    It looks like there’s some detente between Fatah and Hamas. If that reconciliation comes to pass then there will pressure on the US regarding the terrorist designation of Hamas, but a de-listing would absolutely not be permitted by AIPAC. It’ll be interesting to watch the US reaction.

  9. JamesJoyce says:

    So in America citizens who express disgust and contempt for pro corporate policies which rape the republic will soon be considered a threat and labeled terrorists? Is this the tyranny Jefferson warned of?

    • sabretoothedcritter says:

      If this isn’t tyranny, it sure is close. I recall the anti-Soviet propaganda from years back. “In Russia people can’t move to a new city without approval”. In America, it’s called forwarding your mail, moving your automatic bill payments to a new bank, changing your voter registration, finding a new job, etc.
      “In Russia, you have to get government approval to vacation outside the country.” In America, we have to get passports too…we even have to carry them on many cruises.
      “In Russia, you can’t speak your mind without getting in trouble with the government.” In America, firehoses and teargas get turned on antiwar activists too.
      I wonder if there are any safe countries that accept refugees from America?

      • JamesJoyce says:

        No there are not. The only choice is to stand, fight and die! That’s what our founders did. Stand, fight, and die for principle, for life and for liberty. So knock on my door motherfuckers and suffer the consequences of your actions, because you do not like what is being said? This is exactly what happen in Germany!

  10. EdwardTeller says:

    How about when my music is played in the UK to raise money to – for instance – rebuild the Anglican Hospital in Gaza? Though the money raised in the UK is directed toward a fund administered by the Anglican Church, for the rebuilding to actually happen in Gaza, Hamas, at least as I understand it, will be involved on the ground where the project will occur. Sort of like I can’t get a building permit here without the local authorities signing it.

    Can I expect a knock?

    • eCAHNomics says:

      Can I expect a knock?

      Considering that NSA computers sweep up everything on internet which is then searched for keywords by Israeli software, it’s safe to say we can all expects knocks.

  11. WindHarps says:

    Re: FBI Raids on Anti-War Activists

    HUAC, in the present (through modern scales): “The war on dissent, rather than terrorism, continue[s] full steam.” Is it disloyal to be ashamed, and outspoken, when our country is guilty of the following? : Secret Evidence. Secret Accusers. Secret Locations. Secret (Tortured Confession) Methods. Secret Sentences. Secrets of the State.

    Is it reasonable to be covertly, as well as openly, harassed into a voiceless (submissive) acceptance of the latter? If so, to what country are we referring?

  12. lennyp says:

    The simple fact that “Solicitor General Elena Kagan advocated for …” does not justify the headline blaming Elena Kagan for the FBI actions. Blame these raids on Obama, Biden, Holder, Mueller. Blame Obama’s backing out on appointing Dawn Johnsen as head of the Office of Legal Counsel. But do not blame the Solicitor General for arguing as per her client’s (the President) wishes.

    I don’t think many people commenting on this thread really understand the role of an attorney in our legal system. An attorney argues on behalf of his/her client NOT on his/her own opinion or belief. In order for our system of law to work attorneys on both sides of the fence must present the best possible arguments for their client’s side independent of what legal outcome they might personally desire.

    Solicitor General Kagan was arguing on behalf of what her client, President Obama wanted; she could not argue otherwise. We most certainly should be faulting (big time!) Obama because of the stand he directed his Solicitor General to take; we should not be blaming his Solicitor General for simply for doing her job. If, as a SCOTUS justice, she rules similarly then I would consider her at fault.

    • bmaz says:

      Well I understand the role of attys in our legal system okay, and I can say with almost certainty that the most egregious part of the SG argument in Holder v. HLP was freewheeling by Kagan because she was getting loose feet under pressure. Which, of course, is common for people that do not have diddly shit in the way of adversarial experience in trial or appellate courtrooms. There are a couple of places she went off script in simply horrendous ways, and that was Kagan, not necessarily “the client”.

  13. donbacon says:

    The US is unique. No other advanced country on the earth has the same combination of so many wars, so many national emergencies, so much imperialism, so much internal repression — we’re special.

    I can’t drive fifty miles down the freeway without encountering a checkpoint with jackbooted thugs, with a sniffer-dog, who will delay me and question me. One can drive around through various countries in Europe and never see a checkpoint! National borders are checkpoint-free! And we have them internally, and they’re getting worse.

    And yet the government lackies yap about how free we are, which of course like everything is always opposite of the truth.

  14. SebastianDangerfield says:

    EW: “SCOTUS’ decision in Holder v. Humanitarian Law Project probably made such activities (which appear to have all happened before the decision in the case) illegal.”

    Indeed, upon reading the decision, I was immediately struck with the thought that George Mitchell’s negotiation of the Good Friday Accords was in fact “material support” given that he talked directly to the republican and unionist paramilitaries, with the aim of convincing them to disarm and work politically — exactly what the HLP was doing.

    • bmaz says:

      Mr. Dangerfield!! A) Agree completely. I tell you what if you think reading the decision is chilling, you should take a listen to the tape and how Kagan argued it. Such that it may be. Just chilling, and Kennedy and a couple of others seemed taken aback by it; then voted with Roberts in the majority decision buying into every bit of it. B) You really must stop in more often!

      • SebastianDangerfield says:

        The snippet from the argument quoted above is pretty bad all by its lonesome. Love the hairsplitting: amicus brief in case involving TO OK, but amicus brief for TO not OK; that resonates with the DoJ’s you-have-to-get-permission-from-us-to-represent-someone-on-the-President’s-assassination-list. Not sure I want to depress myself further by listening to the whole sorry thing.

        As bad as AEDPA is, I wonder how Clinton feels about the Supreme Court making that bad law into something even worse — criminalizing the means by which one of his signature foreign policy achievements was accomplished?

  15. jawbone says:

    It’s probably been brought up, but when Jimmie Carter gets out of the hospital he better be careful which humanitarian and vote monitoring assignments he and his center take on in the future.

    When the decision came down, I knew this kind of thing would happen.

    Bill Clinton would not have done this, but Obama really, really does not like DFH’s.