Did Michael Mukasey and Rudy Guiliani Commit a Terrorist Crime? A Response to their Defense

01/11/2011 02:45 pm ET | Updated May 25, 2011

Last week I wrote an op-ed in the New York Times noting that Michael Mukasey, Rudolph Giuliani, Tom Ridge, and Frances Townsend may have committed a terrorist crime by speaking at a rally in support of the Mujahedin e Khalq (MEK) in Paris in late December. The rally was organized by a French group formed for the specific purpose of supporting the MEK. The MEK, however, has been a designated terrorist group for more than a decade. Because both the Justice Department and the Supreme Court have said that the the "material support" statute, 18 U.S.C. 2339B, prohibits any advocacy that is coordinated with a proscribed group, Mukasey et al. appear to have violated the statute. I argued that they should have every right to engage in such speech, and the fact that the law makes it a crime only underscores the need for reform.

Yesterday, Mukasey et al. responded in an op-ed for National Review Online. Not surprisingly, they plead innocent. They contend that the problem is not with the material support law, whose prohibitions they support but claim to have skirted, but with the designation of the MEK.

Their defense, however, fails. Their objections to the MEK's designation might well be justified (I take no position on that issue in the original op-ed, nor here). But the material support statute expressly provides that one cannot defend one's support of a designated group by challenging the propriety of the designation in court. Indeed, ironically enough, the Justice Department under President George W. Bush successfully defended that provision against an alleged supporter of the MEK who sought to challenge the group's designation in her defense. (The decision is United States v. Afshari, 427 F.3d 646 (9th Cir. 2005).

Second, Mukasey and his co-supporters maintain that as long as they were acting "entirely independently" of the MEK, and not "under its direction and control," they did not provide aid in the form of "personnel" to the group. But Mukasey's own Justice Department took the position that any coordinated speech, not just speech provided under a group's "direction and control," is a crime. The Supreme Court opinion in Holder v. Humanitarian Law Project says precisely that. That's because the statute also prohibits the provision of any "service" to a designated group, which is far broader than "personnel," and according to Mukasey's Justice Department includes anything done "for the benefit of" a proscribed group. The Justice Department has also said that providing aid through intermediaries is prohibited. Mukasey et al. notably do not assert that they acted without coordination.

As I argued in my original op-ed, I believe Mukasey and his compatriots have every right to advocate as they did. But according to the positions Mukasey's own Justice Department advanced, his actions were criminal -- and he cannot plead the MEK's wrongful designation as a defense. The law needs to be changed. The problem is not just with a single erroneous designation, but with a statute that turns speech advocating only lawful activity into a terrorist crime.