Like Batman's enemy Two-Face, the United States government has two sides when it comes to national security and the work of charities and other nonprofit groups. The friendly side talks about the importance of civil society in addressing root causes of violent extremism, the need to aid civilians in conflict zones and the important role community organizations play in fostering democracy. The scary side emerged after the 9/11 attacks inflicted a trauma that impaired rational thinking. Dent, the G-City prosecutor traumatized in an acid-throwing attack, goes insane, becoming Two-Face. Likewise, the U.S. government treats charities as a threat at the same time it praises their work.
Sound far-fetched? Not if you work for an NGO trying to address famine in Somalia or seeking to foster a peace process in Nepal, Colombia or any other global spot where a group on the U.S. terrorist list operates. That is because an excessively broad reading of the legal prohibition on material support of terrorism has been applied to activities like training a terrorist group on how to use political advocacy instead of violence and imposed such burdensome conditions on aid to civilians that often it cannot get through. While the U.S. has friendly words for civil society, its actions are derived from the scary, scarred side.
A year ago (June 21, 2010) the Supreme Court ruled that it is constitutional to apply the material support ban to a peacebuilding program that sought to turn the Kurdistan Workers Party in Turkey and the Tamil Tigers in Sri Lanka away from violence. (Background on Holder v. Humanitarian Law Project is here.) Since that time, the problems charities and peacebuilding groups face have grown worse.
At a panel at the National Press Club on the first anniversary of the ruling, Nathan Stock from the Carter Center said, "The Carter Center provides training on human rights and electoral issues in the course of our normal work. We've avoided doing that with Hamas because of this set of regulations." Reflecting the experience of aid and development groups, Joel Charny of InterAction said counterterrorism measure applied to charities "... undermine our ability to respond to urgent humanitarian situations and directly contradict historic and current U.S. obligations under international humanitarian law."
These restrictive policies are at odds with numerous statements from State Department officials, who from Secretary of State Clinton on down, tout the role of charities and civil society in enhancing national security. For example, Clinton has said, "For the United States, supporting civil society groups is a critical part of our work to advance democracy." Counterterrorism Coordinator Daniel Benjamin has said, "[T]here is probably no success in this area that can happen without civil society... it's the NGOS that have the ground knowledge which is vitally important."
But USAID, under direction of the State Department, has generated rules like Mission Order 21 in Gaza, which bars any contact with public officials because Hamas is the elected government. That means that public schools cannot be used to access children in need of social or medical services. In Somalia, charities were told they could not drill a bore hole for a well in a village because someone from al-Shabab, a group on the terrorist list, may come by and get a drink of water.
At the UN the U.S. has voted in favor of Security Council Resolutions supporting humanitarian access to civilians in conflict. For example, in 1999 the Security Council passed Resolution 1261 "to ensure the full, safe and unhindered access of humanitarian personnel and the delivery of humanitarian assistance to all children affected by armed conflicts. And in July 2004 Resolution 1556 created a humanitarian exemption for the economic sanctions in Darfur. But U.S. groups cannot take advantage of these exemptions without violating the material support prohibition.
The U.S. has the opportunity to put the dueling personalities of Two-Face to rest. At the Press Club event Ambassador Nancy Soderberg, who served in the UN and National Security Council under President Clinton, released a letter to Secretary of State Clinton asking her to use her power under current law to exempt expert advice or assistance, training, and personnel designed to reduce or eliminate the frequency and severity of violent conflict, or to reduce its impact on noncombatants. The letter was signed by a bipartisan group of peacebuilders and foreign policy experts.
The clash between the dueling sides of U.S. counterterrorism policy needs to be addressed in favor of the sensible side, making room for charities and other nonprofit groups to do their work so that the root causes of violent extremism are addressed and the chances of bringing conflicts to an end are improved. To use another movie analogy, the U.S. must reject the dark side, and let the force of common sense and humanitarian values be its guide.
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