Should Carl Benstein go to prison for supporting terrorist MEK?

ProPublica’s Justin Elliott reports that "Watergate journalist Carl Bernstein" got $12,000 for a speech he gave at the Waldorf Astoria in Manhattan last February in support of removing the Iranian opposition group Mujahedeen-e-Khalq (MEK) from the State Department’s list of "foreign terrorist organizations." Although it is unclear what ethical rule Bernstein, who writes for Newsweek and Vanity Fair, is supposed to have broken, Elliott treats this speaking engagement as vaguely scandalous, noting that Chicago Tribune columnist Clarence Page was rebuked by his employer for giving a similar speech in Paris last June without getting prior approval. But Elliott buries the real scandal: Such advocacy can be not only a professional faux pas but a federal crime, depending on the details and the government’s interpretation of a statute banning "material support" for terrorism.

The MEK, blamed for killing Americans in the 1970s and for a string of attacks on Iranian targets that ended in 2001, claims to have renounced violence and has filed a federal lawsuit asking to be reclassified. Judging from Elliott’s penultimate paragraph, it has a pretty strong case:

A federal appeals court in June ordered that [Secretary of State Hillary] Clinton must decide on the MEK’s status by Oct. 1. If she fails to take action, the court said it would delist the MEK itself. The order also criticized Clinton for putting off a decision on the MEK, calling the delay "egregious."

The MEK’s cause has attracted support not only from Bernstein and Page but from prominent political figures such as former New York Mayor Rudy Giuliani, former Attorney General Michael Mukasey, former FBI Director Louis Freeh, former House Speaker Dennis Hastert, former Homeland Security Secretary Tom Ridge, former Rep. Patrick Kennedy (D-R.I.), and former Pennsylvania Gov. Ed Rendell. All of them arguably committed felonies by speaking "for the benefit" of a terrorist organization, a kind of "service" that qualifies as "material support."

In its June 2010 decision upholding this broad ban on material support, the Supreme Court said "independently advocating for a cause is different from providing a service to a group that is advocating for that cause." Although the statute does not say so, the Court suggested that advocacy should be considered material support only when it is "performed in coordination with, or at the direction of, a foreign terrorist organization." But it is still not clear how much coordination is required to transform constitutionally protected speech into a felony punishable by up to 15 years in prison.

If the MEK had contacted Bernstein or any of the other speakers directly, even if it did not pay them, that presumably would count as impermissible coordination. As it is, Elliott notes (but not until the 17th paragraph), the Treasury Department is investigating whether any MEK front groups helped cover the speaking fees. "The MEK is a designated terrorist group," a department spokesman explains. "Therefore U.S. persons are generally prohibited from engaging in transactions with or providing services to this group." As if to assist the government’s inquisition, Elliott does some digging of his own:

Who paid for the Waldorf Astoria event?

Bruce McColm, president of the Global Initiative for Democracy [formerly executive director of Freedom House], told ProPublica in an email: "Resources for the event were provided by the Iranian-American community in New Jersey, New York, Northern California and Texas."

McColm added that "[t]he financial arrangements for speakers were handled by the Iranian-American Community. For the legal at heart, there were no funds provided by NCRI/MEK or any other so-called front groups." NCRI stands for National Council of Resistance of Iran and is recognized by the State Department as an alias for the MEK….

The Global Initiative for Democracy was incorporated in Virginia last November. The Alexandria-based group’s mission statement says it "engages in wide ranging activities nationwide to promote the cause of democracy, human rights, religious tolerance, and cultural and artistic diversity in Iran as well as to ensure the safety and security of political refugees and asylum-seekers."

But much like other groups that have organized pro-MEK events, the Global Initiative for Democracy appears to be primarily focused on the MEK. The only other event detailed on the group’s website was a pro-MEK event held at a Washington hotel in May and featuring former ambassador to the United Nations John Bolton and former State Department spokesman P.J. Crowley, among others. News stories featured on the group’s website mostly involve the MEK.

Elliott appears to be insinuating that McColm’s organization is another MEK front group, which if true could expose Bernstein, Bolton, and Crowley to criminal charges based on their words of support. In this context, Bernstein, who tells Elliott his speech was "largely about using the designation of terrorist and subversive organizations as a smokescreen for other things," does not seem to be exaggerating much when he calls stories like this one "journalistic McCarthyism."

Jacob Sullum, Reason.com