The National Review Online

The material-support statute is fine; the designation is the problem.

The moral of this story may be that sometimes it’s better not to have friends, especially the sort with easy access to the op-ed page of the New York Times, or “The Newspaper of Record,” as it sometimes bills itself.

About a week ago, in the guise of defending us against an imagined prosecution for materially assisting a foreign terrorist organization based on our comments at a conference where we urged that Mujahadin e Khalq (“MEK”) be removed from the State Department’s list of such organizations, Prof. David Cole of Georgetown Law School took to the op-ed page of the Times with a bit of rhetorical jujitsu designed to enlist us in his campaign to change the federal statute that bars such assistance. The liberal blogosphere salivated at the suggestion that four conservative Republicans were providing material support to a terrorist organization, notwithstanding Professor Cole’s tongue-in-cheek defense.

MEK, which opposes the current regime in Tehran and has provided valuable intelligence to the United States on Iranian nuclear plans, was placed on the State Department list during the Clinton administration as a purported goodwill gesture to the mullahs, in aid of furthering dialogue. Regrettably, it was kept on during the administration of George W. Bush, in part out of fear that Iran would provide IEDs to our enemies in Iraq, which of course the mullahs are doing anyway. Both the European Union and the United Kingdom have removed the organization from their lists, with the result that MEK is now designated a terrorist organization by only the United States and Iran. More than 100 members of Congress have supported a resolution to undo this designation. We appeared at a conference two weeks ago and described why we thought the designation was anomalous and unwarranted.

Professor Cole’s arch suggestion that our conduct raises a question under the material-support statute is undone by the text of the law itself. The statute barring material assistance to organizations on the State Department’s list of foreign terrorist organizations (“FTO”) says that although “material assistance” includes “personnel,” and although “personnel” may include the person providing the assistance — here, the four of us — the “personnel” have to be working “under that [FTO’s] direction or control.” And then, just to make explicit what is already obvious, the law continues: “Individuals who act entirely independently of the [FTO] to advance its goals or objectives shall not be considered to be working under the [FTO]’s direction and control.” As a result, we felt quite secure, thank you, in relying on the protection Congress placed in the statute, backed up by the First Amendment.

Professor Cole commendably if somewhat unnecessarily insisted in his article that we “had every right to say what [we] did,” but then added — misleadingly — that he “argued just that in the Supreme Court, on behalf of the Los Angeles–based Humanitarian Law Project” in the case he lost in that tribunal last June. Well, no. He argued that the statute should be rewritten to provide that the two activities the self-styled humanitarians wanted to engage in — “training” in negotiation, and “expert advice and assistance” in filing claims,  both quoted activities specifically barred by the law — should be permitted unless they involved directly a terrorist act. The Court refused to do that, or to find that the quoted terms were either so vague as not to provide notice to a person of reasonable intelligence or gave the government unlimited latitude in applying the law. Further, the Court found that insofar as these terms could be imagined to reach activities shielded by the First Amendment, they were not activities these humanitarians were seeking to engage in and therefore need not be considered by the Court. That is, Professor Cole and his client lost.

He then went a bit beyond us, and beyond his unsuccessful lawsuit, and called for revising the statute also to permit provision of food and shelter via terrorist organizations, apparently based on the disclosure in the Times that corporations have been permitted by our government to sell — at profit, no less — chewing gum, popcorn, and cigarettes to state sponsors of terrorism. The reasoning here is apparently that if it’s okay to sell chewing gum to terrorists, it’s okay to give them concrete they can use not only for shelter but also to fashion bunkers, or to give them the spigot controlling the flow of food and medicine so they can enhance their power and prestige. For what it’s worth, we do not believe that Professor Cole has unearthed an insufferable anomaly in the law or in its administration. Notably, neither in his lawsuit nor in his op-ed did Professor Cole challenge the designation FTO as applied to the proposed beneficiaries of his client’s ministrations. We have challenged, emphatically and with reasoned argument, that designation as applied to MEK.

The material-support statute doesn’t need revision to accommodate non-existent defects. What it does need — and does not often enough get for fear of offending some Muslim organizations — is rigorous enforcement against accurately designated organizations, of which MEK is not one. 

Why, you may ask, did this critique not appear in the pages of The Newspaper of Record (TNOR)? Good question. The editors of TNOR deemed a much shorter version of this article too long for their letters column, and declined to publish it as an op-ed article because, they claim, TNOR has a policy of not publishing op-ed articles in response to other op-ed articles. We are grateful to the editors of National Review for the privilege of this space, and of course to Professor Cole for his unsolicited support, even though we decline to enlist in his crusade.

— Michael B. Mukasey was attorney general of the United States from 2007 to 2009; Tom Ridge was homeland security adviser to Pres. George W. Bush from 2001 to 2003, and homeland security secretary from 2003 to 2005; Rudolph W. Giuliani was mayor of New York City from 1993 to 2001; Frances Fragos Townsend was homeland security adviser to Pres. George W. Bush from 2004 to 2008.