Stephen Rohde: Terrorism Law, the New McCarthyism
[Stephen Rohde, a constitutional lawyer, was co-counsel with Arnold & Porter on the amicus brief filed by victims of McCarthyism in Humanitarian Law Project v. Holder.]
Tomorrow, the US Supreme Court will hear oral argument in the first encounter with the free speech and association rights of American citizens in the context of terrorism since the 9/11 attacks, and in the first test of the constitutionality of a provision of the USA Patriot Act.
The "Material Support" law takes a sweeping approach to its ban on aid to terrorist groups, prohibiting the provision of cash, weapons and the like, as well as four more ambiguous categories - "training," "personnel," "expert advice or assistance" and "service." Opponents of the law say that when it comes to providing lawful legal advice or training in nonviolence, the law is nothing more than "guilt by association," reminiscent of the witch hunts of McCarthyism....
Our society now recognizes that the McCarthy era was a shameful episode in American history, characterized by widespread abuses of executive and legislative power, fueled by demagoguery and overzealous government action, ultimately encompassing "loyalty" investigations of over four million American citizens. See, e.g., Ellen Schrecker, "Many Are the Crimes: McCarthyism in America" (1998), at x (the McCarthy era is "the most widespread and longest lasting period of political repression in American history.").
While few individuals were ultimately prosecuted under the McCarthy-era laws, thousands were persecuted. Among the latter, larger group were Amici and their relatives, none of whom intended to or actually did engage in violence against this country. Nonetheless, they were investigated, libeled, terminated from and unable to secure employment, blacklisted, prosecuted and imprisoned. One of the key lessons from this era is that when the federal government fans the flames of public passion by enacting overreaching criminal statutes, staging Congressional hearings and investigating the loyalty of millions of American citizens, it implicitly condones and sanctions retributions against individuals, such as Amici. Eventually, our society and this court understood that these consequences were unacceptable. We should not make these mistakes again.
It is against this background that this court issued the decisions that are the controlling law that governs this case. In a series of landmark First Amendment decisions, this court struck down these statutes, restored freedom of speech and halted guilt by association. This court concluded that the Congressional and executive branch excesses were unconstitutional. The court held that punishing speech without showing incitement to crime and punishing association without showing specific intent to further illegal ends penalizes innocents and chills the political freedoms at the very core of our democracy.
Read entire article at Truthout
Tomorrow, the US Supreme Court will hear oral argument in the first encounter with the free speech and association rights of American citizens in the context of terrorism since the 9/11 attacks, and in the first test of the constitutionality of a provision of the USA Patriot Act.
The "Material Support" law takes a sweeping approach to its ban on aid to terrorist groups, prohibiting the provision of cash, weapons and the like, as well as four more ambiguous categories - "training," "personnel," "expert advice or assistance" and "service." Opponents of the law say that when it comes to providing lawful legal advice or training in nonviolence, the law is nothing more than "guilt by association," reminiscent of the witch hunts of McCarthyism....
Our society now recognizes that the McCarthy era was a shameful episode in American history, characterized by widespread abuses of executive and legislative power, fueled by demagoguery and overzealous government action, ultimately encompassing "loyalty" investigations of over four million American citizens. See, e.g., Ellen Schrecker, "Many Are the Crimes: McCarthyism in America" (1998), at x (the McCarthy era is "the most widespread and longest lasting period of political repression in American history.").
While few individuals were ultimately prosecuted under the McCarthy-era laws, thousands were persecuted. Among the latter, larger group were Amici and their relatives, none of whom intended to or actually did engage in violence against this country. Nonetheless, they were investigated, libeled, terminated from and unable to secure employment, blacklisted, prosecuted and imprisoned. One of the key lessons from this era is that when the federal government fans the flames of public passion by enacting overreaching criminal statutes, staging Congressional hearings and investigating the loyalty of millions of American citizens, it implicitly condones and sanctions retributions against individuals, such as Amici. Eventually, our society and this court understood that these consequences were unacceptable. We should not make these mistakes again.
It is against this background that this court issued the decisions that are the controlling law that governs this case. In a series of landmark First Amendment decisions, this court struck down these statutes, restored freedom of speech and halted guilt by association. This court concluded that the Congressional and executive branch excesses were unconstitutional. The court held that punishing speech without showing incitement to crime and punishing association without showing specific intent to further illegal ends penalizes innocents and chills the political freedoms at the very core of our democracy.