We now have an extraordinary situation that reveals the impunity with which political elites commit the most egregious crimes, as well as the special privileges to which they explicitly
In June, 2010, the U.S. Supreme Court issued its 6-3 ruling in the case of Holder v. Humanitarian Law. In that case, the Court upheld the Obama DOJ’s very broad interpretation of the statute that criminalizes the providing of “material support” to groups formally designated by the State Department as Terrorist organizations. The five-judge conservative bloc (along with Justice Stevens) held that pure political speech could be permissibly criminalized as “material support for Terrorism” consistent with the First Amendment if the “advocacy [is] performed in coordination with, or at the direction of, a foreign terrorist organization” (emphasis added). In other words, pure political advocacy in support of a designated Terrorist group could be prosecuted as a felony — punishable with 15 years in prison — if the advocacy is coordinated with that group.
This ruling was one of the most severe erosions of free speech rights in decades because, as Justice Breyer (joined by Ginsberg and Sotomayor) pointed out in dissent, “all the activities” at issue, which the DOJ’s interpretation would criminalize, “involve the communication and advocacy of political ideas and lawful means of achieving political ends.” The dissent added that the DOJ’s broad interpretation of the statute “gravely and without adequate justification injure[s] interests of the kind the First Amendment protects.” As Georgetown Law Professor David Cole, who represented the plaintiffs, explained, this was literally “the first time ever” that “the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity.” Thus, “the court rule[d] that speech advocating only lawful, nonviolent activity can be made a crime, and that any coordination with a blacklisted group can land a citizen in prison for 15 years.” Then-Solicitor-General Elena Kagan argued the winning Obama DOJ position before the Court.
Whatever one’s views are on this ruling, it is now binding law. To advocate on behalf of a designated Terrorist group constitutes the felony of “providing material support” if that advocacy is coordinated with the group.
Like most assaults on the Constitution in the name of Terrorism during the Obama presidency, criticism of that Court decision was rare in establishment circles (that’s because Republicans consistently support such assaults while Democrats are reluctant to criticize them under Obama). On the day the Humanitarian Law decision was released, CNN‘s Wolf Blitzer interviewed Fran Townsend, George Bush’s Homeland Security Advisor and now-CNN analyst, and Townsend hailed the decision as “a tremendous win for not only the United States but for the current administration.” Here’s how that discussion went:
BLITZER: There is a related case involved that the Supreme Court came out with today and I want to talk to you about this. The Supreme Court ruling today in the fight against terrorism . . . .The 6-3 decision by the Supreme Court, the justices rejecting the arguments that the law threatens the constitutional right of free speech. You read the decision, 6-3, only three of the Democratic appointed justices decided they didn’t like this. They were the minority. But the majority was pretty firm in saying that if you go ahead and express what is called material support for a known terrorist group, you could go to jail for that.
TOWNSEND: This is a tremendous win for not only the United States but for the current administration. It’s interesting, Wolf, Elena Kagan the current Supreme Court nominee argued in favor of upholding this law. This is an important tool the government uses to convict those, to charge and convict, potentially convict those who provide money, recruits, propaganda, to terrorist organizations, but are not what we call people who actually blow things up or pull the trigger.
BLITZER: So it’s a major decision, a 6-3 decision by the Supreme Court. If you’re thinking about even voicing support for a terrorist group, don’t do it because the government can come down hard on you and the Supreme Court said the government has every right to do so.
TOWNSEND: It is more than just voicing support, Wolf. It is actually the notion of providing material support, significant material support.
BLITZER: But they’re saying that if material support, they’re defining as expressing support or giving advice or whatever to that organization.
TOWNSEND: That’s right. But it could be technical advice, bomb-building advice, fundraising.
So Fran Townsend lavishly praised this decision — one that, as Blitzer put it, means that “If you’re thinking about even voicing support for a terrorist group, don’t do it because the government can come down hard on you.” And while Townsend was right that the decision requires “more than just voicing support” for the Terrorist group, the Court was crystal clear that such voicing of support, standing alone, can be prosecuted if it is done in coordination with the group (“the term ’service’ [] cover[s] advocacy performed in coordination with, or at the direction of, a foreign terrorist organization“).
But look at what is happening now to Fran Townsend and many of her fellow political elites. In August of last year, The Christian Science Monitor‘s Scott Peterson published a detailed exposé about “a high-powered array of former top American officials” who have received “tens of thousands of dollars” from a designated Terrorist organization – the Iranian dissident group Mojahedin-e Khalq (MEK) — and then met with its leaders, attended its meetings, and/or publicly advocated on its behalf. That group includes Rudy Giuliani, Howard Dean, Michael Mukasey, Ed Rendell, Andy Card, Lee Hamilton, Tom Ridge, Bill Richardson, Wesley Clark, Michael Hayden, John Bolton, Louis Freeh — and Fran Townsend. This is how it works:
Former US officials taking part in MEK-linked events told the Monitor or confirmed publicly that they received substantial fees, paid by local Iranian-American groups to speaker bureaus that handle their public appearances.
The State Dept. official, who is familiar with the speech contracts, explains the mechanism: “Your speech agent calls, and says you get $20,000 to speak for 20 minutes. They will send a private jet, you get $25,000 more when you are done, and they will send a team to brief you on what to say.”
As but one example, Rendell, the former Democratic Governor of Pennsylvania and current MSNBC contributor, was paid $20,000 for a 10- minute speech before a MEK gathering, and has been a stalwart advocate of the group ever since.
Even for official Washington, where elite crimes are tolerated as a matter of course, this level of what appears to be overt criminality — taking large amounts of money from a designated Terrorist group, appearing before its meetings, meeting with its leaders, then advocating on its behalf — is too much to completely overlook. The Washington Times reported on Friday that the Treasury Department’s counter-Terrorism division is investigating speaking fees paid to former Gov. Rendell, who, the article notes, has “become among [MEK’s] most vocal advocates.” According to Rendell, “investigators have subpoenaed records related to payments he has accepted for public speaking engagements” for MEK. As the article put it, ”some observers have raised questions about the legality of accepting payment in exchange for providing assistance or services to a listed terrorist group.” Beyond the “material support” crime, engaging in such transactions with designated Terrorist groups is independently prohibited by federal law:
David Cole, a professor at the Georgetown University Law Center, noted that “any group that’s on the list is also, by definition, on the Treasury Department’s list for specially designated global terrorists.”
“Anyone in the United States is prohibited from engaging in any transaction with such an entity,” he said.
While Mr. Cole stressed his personal belief that individuals have a “First Amendment right to speak out freely” for an organization like the MEK, he said that “it is a crime to engage in any transaction, which would certainly include getting paid to do public relations for them.“
Rendell has a lot of company in the commission of what very well may be these serious crimes — including the very same Fran Townsend who cheered the Humanitarian Law decision that could be her undoing. After someone on Twitter wrote to her this weekend to say that she should be prosecuted (and “put in GITMO indefinitely”) for her “material support” of MEK, this is how — with the waving American flag as her chosen background — she defended herself in reply:
How reprehensible is the conduct of Fran Townsend here? Just two years ago, she went on CNN to celebrate a Supreme Court decision that rejected First Amendment claims of free speech and free association in order to rule that anyone — most often Muslims — can be prosecuted under the “material support” statute simply for advocacy for a Terrorist group that is coordinated with the group. And yet, the minute Fran Townsend gets caught doing exactly that — not just out of conviction but also because she’s being paid by that Terrorist group — she suddenly invokes the very same Constitutional rights whose erosions she cheered when it came to the prosecution of others. Now that her own liberty is at stake by virtue of getting caught being on the dole from a Terrorist group, she suddenly insists that the First Amendment allows her to engage in this behavior: exactly the argument that Humanitarian Law rejected, with her gushing approval on CNN (“a tremendous win for not only the United States but for the current administration“; This is an important tool the government uses to convict those . . . who provide [] propaganda, to terrorist organizations”).”
What is particularly repellent about all of this is not the supreme hypocrisy and self-interested provincialism of Fran Townsend. That’s all just par for the course. What’s infuriating is that there are large numbers of people — almost always Muslims — who have been prosecuted and are now in prison for providing “material support” to Terrorist groups for doing far less than Fran Townsend and her fellow cast of bipartisan ex-officials have done with and on behalf of MEK. In fact, the U.S. Government has been (under the administration in which Townsend worked) and still is (under the administration Rendell supports) continuously prosecuting Muslims for providing “material support” for Terrorist groups based on their pure speech, all while Fran Townsend, Ed Rendell and company have said nothing or, worse, supported the legal interpretations that justified these prosecutions.
The last time I wrote about these individuals’ material support for MEK, I highlighted just a few of those cases:
A Staten Island satellite TV salesman in 2009 was sentenced to five years in federal prison merely for including a Hezbollah TV channel as part of the satellite package he sold to customers;
a Massachusetts resident, Tarek Mehanna, is being prosecuted now ”for posting pro-jihadist material on the internet”;
a 24-year-old Pakistani legal resident living in Virginia, Jubair Ahmad, was indicted last September for uploading a 5-minute video to YouTube that was highly critical of U.S. actions in the Muslim world, an allegedly criminal act simply because prosecutors claim he discussed the video in advance with the son of a leader of a designated Terrorist organization (Lashkar-e-Tayyiba);
a Saudi Arabian graduate student, Sami Omar al-Hussayen, was prosecuted simply for maintaining a website with links “to groups that praised suicide bombings in Chechnya and in Israel” and “jihadist” sites that solicited donations for extremist groups (he was ultimately acquitted); and,
last July, a 22-year-old former Penn State student and son of an instructor at the school, Emerson Winfield Begolly, was indicted for — in the FBI’s words — “repeatedly using the Internet to promote violent jihad against Americans” by posting comments on a “jihadist” Internet forum including “a comment online that praised the shootings” at a Marine Corps base, action which former Obama lawyer Marty Lederman said ”does not at first glance appear to be different from the sort of advocacy of unlawful conduct that is entitled to substantial First Amendment protection.”
Yet we have the most well-connected national security and military officials in Washington doing far more than all of that right out in the open — they’re receiving large payments from a Terrorist group, meeting with its leaders, attending their meetings, and then advocating for them in very public forums; Howard Dean, after getting paid by the group, actually called for MEK’s leader to be recognized as the legitimate President of Iran – and so far none have been prosecuted or even indicted. The Treasury Department investigation must at least scare them. Thus, like most authoritarians, Fran Townsend suddenly discovers the importance of the very political liberties she’s helped assault now that those Constitutional protections are necessary to protect herself from prosecution. It reminds me quite a bit of how former Democratic Rep. Jane Harman — one of the most reliable advocates for Bush’s illegal spying program — suddenly started sounding like a life-long, outraged ACLU member as soon as it was revealed that her own private communications were legally surveilled by the U.S. Government.
One can reasonably debate whether MEK actually belongs on the list of Terrorist organizations (the same is true for several other groups on that list). But as a criminal matter, that debate is irrelevant. The law criminalizes the providing of material support to any group on that list, and it is not a defense to argue after one gets caught that the group should be removed.
Moreover, the argument that MEK does not belong on the Terrorist list — always a dubious claim — has suffered a serious blow in the last couple of months. An NBC News report from Richard Engel and Robert Windrem in February claimed that it was MEK which perpetrated the string of assassinations of Iranian nuclear scientists, and that the Terrorist group “is financed, trained and armed by Israel’s secret service” (MEK denied the report). If true, it means that MEK continues to perpetrate definitive acts of Terrorism: using bombs and guns to kill civilian scientists and severely injure their wives. Yet Townsend, Rendell, Dean, Giuliani and other well-paid friends continue to be outspoken advocates of the group. Even the dissenters in Humanitarian Law argued that the First Amendment would allow “material support” prosecution “when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions.” A reasonable argument could certainly be advanced that, in light of these recent reports about MEK’s Terrorism, one who takes money from the group and then advocates for its removal from the Terrorist list “knows or intends that those activities will assist the organization’s unlawful terrorist actions”: a prosecutable offense even under the dissent’s far more limited view of the statute.
But whatever else is true, the activities of Townsend, Rendell, Dean, Giuliani and the rest of MEK’s paid shills are providing more than enough “material support” to be prosecuted under the Humanitarian Law decision and other statutes. They’re providing more substantial “material support” to this Terrorist group than many people — usually vulnerable, powerless Muslims — who are currently imprisoned for that crime. It’s nice that Fran Townsend suddenly discovered the virtues of free speech and free association guarantees, but under the laws she and so many others like her have helped implement and defend, there is a very strong case to make that her conduct and those of these other well-connected advocates for this Terrorist group is squarely within the realm of serious criminal behavior.
Glenn Greenwald,