The Prime Minister decided this week to send Canadian aircraft to Iraq and possibly to Syria to strike ISIS targets in these countries. The attacks will be exclusively by air and will not involve land troops. The motion is expected to be debated in Parliament tomorrow.
The threats posed by ISIS is certainly unique, and is not easily solved. Nobody suggests that these airstrikes alone will eliminate the problem. Opposition groups have already rejected the plan, indicating that the case for such involvement has not been properly presented. The self-defence basis and humanitarian grounds for doing so have already been deeply questioned.
In any democracy, debate over important decisions such as going to war, require credible and accurate information. When it comes to shadowy, informal, unrecognized insurgent groups, this type of information is incredibly scarce.
One of the few independent sources is a Vice documentary, “The Islamic State,” which already has over 3.5 million views on YouTube. Medyan Dairieh, the reporter for the documentary, was only able to get this unique footage and insight by embedding himself with ISIS fighters for 3 weeks. By most accounts, this is the only first-hand account of its type available to us in North America.
However, as Andrew March of The Atlantic points out, Dairieh’s actions may have actually been illegal under 18 U.S. Code § 2339B for “providing material support or resources to designated foreign terrorist organizations,”
In the test case that came before the Supreme Court in 2010, Holder v. Humanitarian Law Project, the Court held that it was constitutional to prohibit a group of humanitarian legal professionals (including a retired U.S. judge) “from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.” The Court rejected the claim that the statute “should be interpreted to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities.” Instead it affirmed that the statute prohibits “‘knowingly’ providing material support” and that Congress was within its rights to choose “knowledge about the organization’s connection to terrorism, not specific intent to further its terrorist activities, as the necessary mental state for a violation.” In short, according to the Court: expert advice + coordination with a terrorist group = federal crime.
The problem is that even the benign cooperation of journalists with such groups could be construed as the type of coordination falling into “material support.” March continues by highlighting a case of someone successfully prosecuted for doing less than what Dairieh has done,
…is providing a group with an outlet for its views a kind of service? This question was the subject of another important case, perhaps the most consequential material-support case since Humanitarian Law Project:Tarek Mehanna v. United States.In that high-profile 2011 trial, the government successfully prosecuted Tarek Mehanna, a Muslim man from the Boston area, on material support-related charges…
…while the government spent most of its time during the Mehanna trial attempting to document his state of mind in discussing, translating, and disseminating Islamic religious material related to jihad, none of that material was aimed at actually coordinating or directing a terrorist attack. None was what’s known as “crime-facilitating speech,” like instructions on how to build a bomb, forge a passport, or sneak into a battle zone. It was all speech related to explaining, defending, and disseminating a certain point of view (one that, incidentally, at times dissented from al-Qaeda’s party line). But, as the lead prosecutor informed the jury, “One way to provide material support is providing yourself as personnel. Another way to provide material support is to provide your friends as personnel, or people who might read the translations, might read the propaganda that you put out on the Internet that you want to go fight” (my emphasis).
Note that in order to be considered as having provided material support to terrorists, you don’t need to know the people who might be inspired by translations or propaganda. Anyone who consumes it could be your gift to a terrorist group.
The material support provisions do not care about the intent of the information, even if it is to educate the public or promote peace. Fortunately the Mehanna case is potentially up for review by the Supreme Court of the United States, and these provisions may be more carefully applied in the future.
The provisions under 18 U.S. Code § 2339B apply even outside the American jurisdiction, where an offender is a national, permanent resident, found within the U.S., or even if it affects interstate commerce. Given the sheer volume of trade between Canada and the U.S., it’s very possible that Canadian journalists could get caught up in this as well.
Is it possible that some people abroad may be inspired by the Vice documentary and decide to join ISIS? Perhaps.
But it is far more important to me that we have accurate reliable about what is going on there, especially when a debate is about to proceed in Parliament, and in light of the considerable misinformation we received during the last two invasions of Iraq in the past 24 years.