Caveat Doctor: International Law and the Criminalization of Teaching It
Cerone, John, Suffolk Transnational Law Review
I recently gave a public lecture at a law school in Chennai, the capital of the state of Tamil Nadu in southern India. I had been invited to speak about the relationship between the law of armed conflict and international human rights law in situations of armed conflict or occupation. The audience was highly engaged and asked a number of pointed questions. Several attendees asked for my legal opinion about the situation in Sri Lanka, and in particular about the application of international law to the interaction between the Liberation Tigers of Tamil Eelam (LTTE) and the state's forces.
In the midst of my comments, it suddenly occurred to me that I might be dangerously close to committing a federal crime. I remarked to the questioners that I assumed that they were not members of the LTTE, and explained why this was relevant. They, of course, were aghast at the notion that a U.S. citizen could be prosecuted for lecturing about international law, and especially while doing so outside the territory of the U.S. I then pointed out that the legislation was not limited to U.S. citizens, and that they would also be potentially criminally liable under U.S. law for teaching any subject to members of the LTTE.
The federal crime of "providing material support or resources to designated foreign terrorist organizations" is a criminal law of extraordinary breadth of scope, both in terms of the range of conduct it captures as well as its jurisdictional sweep. (1) The constitutionality of its criminalization of speech, and in particular, the teaching of international law to foreign terrorist organizations (FTOs) was upheld in the case of Holder v. Humanitarian Law Project. (2) Can this be consistent with the international obligations of the United States? To what extent is the issue of its accordance with international law relevant to the interpretation and application of the law in the context of the U.S. legal system?
The statute, as interpreted by the Court, is in tension with a number of international obligations binding on the United States. (3) This article focuses on two tensions in particular. The first is the tension between the scope of conduct captured by this law and the international legal obligation to respect the fight to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights. The second is the tension between the statute's jurisdictional reach and the rules of international law pertaining to jurisdiction.
This article examines these tensions and analyzes their implications with respect to the proper interpretation and application of the law, and to the international legal responsibility of the United States.
I. OVERVIEW OF RELEVANT PROVISIONS OF THE STATUTE
The criminalization of providing material support to foreign terrorist organizations is set forth in 18 U.S.C. [section] 2339B. The conduct criminalized by the statute consists of "[k]nowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so." (4) The statute stipulates that a person "must have knowledge that the organization is a designated terrorist organization ... that the organization has engaged or engages in terrorist activity ... or that the organization has engaged or engages in terrorism...." (5) In addition to such conventional forms of support as funds and material goods, the definition of "material support or resources" includes a broad range of activities, including some consisting solely of speech. In particular, "training" and rendering "expert advice or assistance" are expressly criminalized. (6)
Seemingly conscious of potential constitutional infirmities, the statute sets forth a rule of construction to prevent First Amendment conflicts. It states, "nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States. …