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What Does the Government Consider “Protected” First Amendment Activities?

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The other day, AP’s Matt Lee called out State Department spokesperson Jen Psaki’s suggestion that Edward Snowden is not entitled to free speech.

QUESTION: Okay. Then I just don’t understand. I think this is an incredibly slippery slope that you’re going down here, that the U.S. Government is going down here, if you are coming up and saying to us that you’re trying to prevent an American citizen – albeit one who has been accused of serious crimes – from exercising his right to free speech. You don’t agree with that?

MS. PSAKI: I believe that what I’ve conveyed most proactively here is our concern about those who helped facilitate this event —

QUESTION: Yes.

MS. PSAKI: — and make it into a propaganda platform.

QUESTION: Right. And —

QUESTION: Or a public asylum —

QUESTION: — the propaganda platform aside, free speech covers propaganda. Last time I checked, it covers a lot of things. And I don’t see, unless he’s somehow violated U.S. law by speaking at this – at the Russian – the transit line at the Russian airport, I don’t see why you would be disappointed in the Russians for, one, facilitating it, but also, apparently from what it sounds like, tried to discourage them from – tried to discourage this – them from allowing this event to take place in the – to take place at all.

MS. PSAKI: Well, Matt, this isn’t happening, clearly, because we wouldn’t be talking about it, in a vacuum. And this is an individual, as we all know, who has been accused of felony crimes in the United States. We have expressed strongly our desire to have him returned —

QUESTION: I understand.

MS. PSAKI: — to face those charges. This is all applicable context to these circumstances.

QUESTION: But as you have also said, he is a U.S. citizen.

MS. PSAKI: He is, yes.

QUESTION: He remains a U.S. citizen, and he enjoys certain rights as a U.S. citizen. One of those rights, from your point of view, is that he has the right to come back and face trial for the crimes he’s committed. But the rights that you’re not talking about are his right to free speech, his right to talk with whoever he wants to, freedom to assemble. I don’t understand why those rights are – why you ignore those and simply say that he has – that he’s welcome to come back to the United States to exercise his right to be tried by a jury of his peers. Why is that the only right that he gets, according to this Administration? [my emphasis]

As it happens, I read it about the same time i read this passage, from the government’s opposition to Basaaly Saeed Moalin’s challenge to the FISA-derived evidence against him (see this post for more background).

Moalin claims he was fargeted for FISC-authorized surveillance in violation of FISA’s stipulation that no United States person may be considered a foreign power or an agent of a foreign power solely on the basis of activities protected by the First Amendment. Docket No 92 at 18-19 (citing 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A)). Although protected First Amendment activities canot form the sole basis for FISC-authorized electronic surveillance or physical search, not all speech-related activities fall within the protection of the First Amendment. See infra at 70.

That is, when faced with limitations on surveillance based on First Amendment activities, the government claimed that not all speech is protected.

(Note, I’m not certain because the page numbers listed in this unclassified motion are to the pagination of the classified motion, but I believe that reference to speech that is not protected is redacted.)

That’s important because of the narrative the government presented in this motion (which is different from what Sean Joyce presented to the House Intelligence Committee — I believe both narratives are in fact badly misleading).

In the materials presented in this case, the government suggests FISA-authorized surveillance on Moalin’s calls with al-Shabaab warlord Aden Ayrow started, out of the blue, in December 2007, several months before al-Shabaab was listed as a Foreign Terrorist Organization. I’m not aware of any evidence it presents that precedes these calls. Yet these early calls show no evidence of criminal behavior.

Thus, the evidence suggests that merely calling someone considered a terrorist but whose group was not yet officially designated as such by the government makes one an agent of a foreign power.

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The Jeremy Scahill Yemen Executive Order

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For the record, I don’t think the Obama Administration would be so brazen as to freeze Jeremy Scahill’s assets because he reported critically on Obama’s Yemen policy. But the Executive Order they’re rolling out today is reportedly written so broadly so as to make something like that possible.

The unusual order, which administration officials said also targets U.S. citizens who engage in activity deemed to threaten Yemen’s security or political stability, is the first issued for Yemen that does not directly relate to counterterrorism.

Unlike similar measures authorizing terrorist designations and sanctions, the new order does not include a list of names or organizations already determined to be in violation. Instead, one official said, it is designed as a “deterrent” to “make clear to those who are even thinking of spoiling the transition” to think again.

[snip]

The order provides criteria to take action against people who the Treasury secretary, in consultation with the secretary of state, determines have “engaged in acts that directly or indirectly threaten the peace, security or stability of Yemen, such as acts that obstruct the implementation of the Nov. 23, 2011, agreement between the Government of Yemen and those in opposition to it, which provides for a peaceful transition of power . . . or that obstruct the political process in Yemen.”

It covers those who “have materially assisted, sponsored or provided financial, material or technological support” for the acts described or any person whose property has already been blocked, as well as those who have acted on behalf of such people.

The explanation this anonymous official seems to have given Karen DeYoung is that the order is a way to make sure Ali Abdullah Saleh’s family butts out of affairs in Yemen (which would work, given that he presumably does have significant assets in the US). Using Saleh’s wealth as a way to try to keep him out of Yemeni politics is a nice idea (though the agreement itself could have done more to enforce this).

But Saleh’s not a US citizen. So why explicitly include US citizens in the order?

Moreover, since the language borrows material support language from terrorist sanctions, and since terrorist material support extends to First Amendment protected activities (as Tarek Mehanna knows well), and since Obama has already made sure a journalist remains jailed in Yemen, then what protection is there for people who say that using signature strikes in Yemen is boneheaded, or suggesting that investing all our energies in Saleh’s Vice President doesn’t really constitute a meaningful solution in Yemen?

And to make things worse, the anonymous official tries to tell DeYoung that this sanction is not the first of its kind. It was used twice before: in 2006 in Cote d’Ivoire and in 2009 in Somalia. That is, precisely this kind of sanction has been used twice–and has twice failed to do anything to bring about meaningful stability.

But the single most troubling aspect of this EO is that is guaranteed to be selectively enforced. After all, the Saudis aren’t exactly great friends of “political processes” anywhere, particularly in their backyard, and surely they’re waiting to bomb more Houthis. Yet what are the chances that any Administration would freeze the very significant assets of Saudi citizens in the US–even those operating outside official channels?

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Should We Prosecute Acting Solicitor General Neal Katyal Now?

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The Supreme Court today ruled largely with the government in a case broadly interpreting the material support statute.

At issue was whether human rights groups could work with organizations on the Foreign Terrorist Organization list in pursuit of humanitarian or non-violent goals. More broadly, SCOTUS reviewed whether things like providing expert advice to designated terrorist organizations could be prosecuted under the statute.

The answer of six Justices – everyone but Breyer, Ginsburg, and Sotomayor – was “yes.”

To understand the absurd implications of this, remember that Neal Katyal provided his expert advice to a person alleged to be a member of designated terrorist group when he represented Salim Hamdan.

Here’s what the Center for Constitutional Rights – which argued the case – described the decision.

Today, the U.S. Supreme Court ruled 6-3 to criminalize speech in Holder v. Humanitarian Law Project, the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims. Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon. President Carter submitted an amicus brief in the case.

Chief Justice Roberts wrote for the majority, affirming in part, reversing in part, and remanding the case back to the lower court for review; Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. The Court held that the statute’s prohibitions on “expert advice,” “training,” “service,” and “personnel” were not vague, and did not violate speech or associational rights as applied to plaintiffs’ intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers’ Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.

David Cole had this to say about the decision.

We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong

And Jimmy Carter, who submitted an amicus brief as the Founder of the Carter Center, had to say.

We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.

I’ll have more to say about the First Amendment aspects of the decision once I get done reading it.