Amendment to State Secrets Bill Would Expand Ban on Humanitarian Aid and Other Programs
by Suraj Sazawal, 6/1/2009
Sen. Jon Kyl (R-AZ) proposed an amendment to the State Secrets Protection Act (S. 417) on May 21, 2009 when the bill was scheduled for consideration by the Senate Judiciary Committee. It was one of several amendments offered, but the committee took no action. However, Kyl's proposal, rejected by the Senate in 2007, would amend the prohibition on providing "material support" to terrorists to include aid to members of their families or those "otherwise associated" with them, subject to a broadly defined intent standard. The proposal contravenes accepted standards of nondiscrimination in humanitarian aid developed by the International Committee of the Red Cross (ICRC) and would criminalize aid based on a subjective and undefined intent standard.
Under current law it is a crime for any person or organization to knowingly provide, attempt, or conspire to provide “material support or resources” to an organization designated as a "foreign terrorist organization" by the Secretary of State, regardless of the character or intent of the support provided. (Antiterrorism and Effective Death Penalty Act (AEDPA), which was enacted in 1996 and later amended by the USA PATRIOT Act in 2001 and 2004. ) Executive Order 13224, signed by President Bush in 2001, extends this to include organizations designated by the Department of the Treasury.
Under the proposed Kyl amendment, which mirrors his 2007 proposal (SA 317) , anyone who "provides, or attempts or conspires to provide, material support or resources to the perpetrator of an act of international terrorism, or to a family member or other person associated with such perpetrator, with the intent to facilitate, reward, or encourage that act or other acts of international terrorism" (emphasis added) will be subject to up to 25 years in prison or if death results, up to life imprisonment. A "perpetrator" of an act of terrorism includes not only those that commit the act, but those who "aid, abet, counsel, command, induce, or procure" commission of a terrorist act, and those who "attempt, plot, or conspire" to do so.
The Kyl proposal expands current law in three ways that would create serious difficulties for any U.S. organization operating an international program. These are:
- While current law provides notice of which individuals and organizations are illegal to deal with or provide aid to (Treasury and State Department lists of designated terrorist organizations), the Kyl amendment would expand the prohibition to apply to "perpetrators" of an act, which is defined so broadly that it would be impossible, as a practical matter, to determine who the perpetrators are. It would be equally impossible to determine who is "otherwise associated with" them. The proposal does not provide a standard or any public notice on who is considered a "perpetrator."
- The people barred from receiving humanitarian aid would include potential innocent family members who have no involvement in terrorist acts. This contravenes the Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, which says "the humanitarian imperative comes first" and "Aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind. Aid priorities are calculated on the basis of need alone. In addition, the 1994 IFRC Code of Conduct states in part that aid is given regardless of the race, creed or nationality of the recipients and without adverse distinction of any kind, will not be used to further a particular political or religious standpoint, and shall endeavor not to be used as an instrument of government foreign policy.
- While an intent standard is a constructive concept in devising better material support laws, the Kyl proposal is so vague that enforcement would be subjective and arbitrary. It is conceivable that the same aid to the same individuals could be legal for one nonprofit and illegal for another, based on their political opinions, human rights stances or other factors.
If the Kyl amendment were to pass, and a natural disaster occurred in a location where terrorist organizations are active, a charity and its staff would have to screen every individual to see if they are related or somehow "associated with" an undefined class of "perpetrators" who may or may not have taken steps to carry out a terrorist attack. Besides being impractical, this requires charities to do the work of intelligence agencies and discriminates against innocent family members, neighbors, co-workers or others who may be "associated with" a suspected terrorist. The end result is inconsistent with ICRC standards and human rights law.
If the Kyl amendment to S. 417 comes before the Senate Judiciary Committee for consideration it should be rejected because of its overbroad and vague standards and for violating accepted norms of neutrality in humanitarian aid programs.
