President Donald Trump’s executive order on immigration that targeted Muslim countries, now halted by federal judicial order, was worrying enough. But another executive action has been floated that would be far more devastating for Muslim individuals and organizations in the US: a directive to the state department to designate the Muslim Brotherhood as an international terrorist organization. When coupled with a US supreme court decision from 2010, the designation could lead to widespread prosecution of American Muslims and others for material support of terrorism—a disaster for civil liberties and free speech that could dwarf the Trump administration’s early initiatives.
On the surface, the question of whether the Muslim Brotherhood should be designated as a terrorist organization sounds like a pure question of foreign policy. After all, the designation by law is made by the state department, pursuant to congressional authorization. It’s based on an administrative record compiled by the state department. And it’s restricted to foreign organizations.
But that appearance is deceiving. State department designation has big domestic consequences. the federal law that prohibits material support for terrorism is linked to the state department designation. The law makes it a crime to provide “material support or resources” to a designated terrorist organization.
The statutory definition of material support is extremely broad. It not only includes money, but also “training, expert advice or assistance”. The word “training” is further expanded to include “instruction or teaching designed to impart a specific skill”. The language gives the government the authority to bring criminal prosecutions against people who assist designated organizations. And the courts have interpreted material support to include a range of activities that ordinarily fall under the definition of free speech.
In an extraordinarily important 2010 case, Holder v. Humanitarian Law Project, the supreme court considered the situation of US-based non-governmental organizations (NGO) that wanted to provide training and advice in non-violent advocacy techniques to two designated organizations, the Kurdish PKK and the Tamil Tigers. The 5-4 opinion, by chief justice John Roberts, acknowledged that the US NGOs would have a perfect First Amendment right to say the things they wanted to say if they were acting alone, not in coordination with the designated foreign organizations. But Roberts wrote that the statute banning material support covers advocacy that is “coordinated” with the designated organization.
The legal reasoning was striking—and scary. According to Roberts, the government can prosecute what would otherwise be free speech because Congress has determined that terrorist organizations benefit from non-violent advocacy, and that such organizations don’t have clear dividing lines between their violent and non-violent activities. When you put together the state department designation, the material support statute and the supreme court decision, you get a potent tool for prosecuting Americans who are speaking within the US.
In a case I wrote about several years ago, a Boston-area man was convicted under the material support statute for charges that included translating Salafi material into English and uploading it to a website associated with Al Qaeda. In the end, the US court of appeals for the first circuit managed to duck deciding whether this conduct alone would have satisfied the statute. But the man, Tarek Mehanna, is in prison today.
The international Muslim Brotherhood is a big tent. Its affiliates include many peaceful activists and political parties, such as the Tunisian Ennahda Party, with which I have lots of contact. The Brotherhood also has affiliations with organizations that embrace political violence, such as Hamas.
Within the US, it would be hard to find a Muslim charity or NGO that hasn’t engaged in some coordinated activity with the Muslim Brotherhood, such as co-sponsoring a speech. The same is true of many non-Muslim organizations. A couple of years ago, the Yale Law School sponsored a lecture by Rashid Ghannouchi, the leader of Ennahda. That would arguably count as coordinated activity under the material support statute if the Muslim Brotherhood were designated as a foreign terrorist organization.
The great danger of designating the Muslim Brotherhood as terrorist is that Muslim American organizations and individuals can then be targeted for criminal prosecution. At the minimum, the possibility of this happening would have an enormous chilling effect on free speech.
At the maximum, the material support statute could become a tool of anti-Muslim suppression by the government. That represents a tremendous threat to free speech and civil liberties in the US.
And it would be difficult to challenge in the courts. The designation itself is reviewable by the US court of appeals for the DC Circuit. But if it survives review, the Holder decision stands as a basis to prosecute speakers whose advocacy can be characterized as “coordinated” with the Brotherhood or its affiliates.
The civil liberties community has shown early success in responding to Trump administration initiatives. In this instance, it should strongly object to the designation of the Brotherhood as a terrorist group, before it becomes the battleground for the next big civil liberties fight in the US. Bloomberg
Noah Feldman is a professor of constitutional and international law at Harvard University