Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge

15. September 11 and Beyond

252 > 253 government officials’ varying deployments of the term were often politically driven and included at times even non-violent dissenters. One of the most striking examples emerged in October 2008, when the Washington Times reported that two nuns who had protested the death penalty and the U.S. invasion of Iraq had been placed on the FBI’s Terrorist Watch List; they were among 53 people added to the list “in conjunction with an extensive Maryland surveillance effort of antiwar activists.”1 Police commonly consult the list when making traffic stops, the State Department uses it to vet visa applications, and the Department of Homeland Security uses it to create its No Fly List and to select airport travelers for interrogation.2 Files produced in response to public-records requests revealed that nonviolent environmental groups, anti-abortion activists, and people opposed to biological-warfare research and the manufacture of cluster bombs were also listed as terrorists, along with “activists devoted to such wide-ranging causes as promoting human rights and establishing bike lanes.”3 In May 2009, the Justice Department’s inspector general issued a report faulting the FBI Watch List for both including people who posed no risk of terrorism and failing to include people who were genuine suspects.4 Part of the problem is simply government overreaching, but part arises from broad legal definitions of terrorism. The State Department uses the definition in U.S. immigration law, much of which comports with ordinary notions of terrorism: hijacking, sabotage, and threats to kill, injure, or detain a person “in order to compel a third person (including a governmental organization ) to do or abstain from doing any act.” But the definition also covers the use of any weapon “or dangerous device” with intent to endanger either people or property.5 Obviously, this encompasses a broad range of crimes. The U.S. criminal law definition of terrorism is narrower, covering only acts “dangerous to human life” that “appear to be intended” to intimidate or coerce a civilian population or to influence the policy of a government by intimidation or coercion.6 An executive order signed by President George W. Bush 12 days after 9/11 extended the definition of terrorism found in the criminal law: it was not limited to threats to human life but also covered any act dangerous to “property or infrastructure” that “appears to be intended to influence the policy of a government by intimidation or coercion.”7 Under this definition, civil disobedience that involves damage to property—pouring blood, for example, on weaponry or draft files as was done in symbolic protest of the Vietnam War—qualifies as terrorism. The U.S. government maintains several different but partially overlapping lists of organizations or people that it believes are engaged in terrorism. 254 > 255 that the 1961 Smith Act case of Scales v. United States should apply. In Scales, the Court had ruled that members of organizations considered subversive could not be prosecuted unless the government proved that they not only knew of the unlawful aims of the organization but specifically intended to help achieve them.11 Since the Humanitarian Law Project and the other plaintiffs only intended to assist with peaceful aims of the rebel groups, they argued that the anti-material-support provisions of the law were too broad. Their argument was supported by an amicus brief on behalf of 32 “Victims of the McCarthy Era”—individuals, and their family members or close friends, who were blacklisted or otherwise lost their jobs, and in some cases served prison terms, during the 1950s because of associations with the Communist Party, even though they only supported the Party’s peaceful aims. Roberts was not impressed. He said Scales was “readily distinguishable” because the Smith Act prohibited “mere membership” in a subversive group; here, the law prohibited “providing ‘material support.’”12 It was a meaningless distinction, since membership ordinarily involves material support, and membership for peaceful aims is no different in substance from material support for peaceful aims. Indeed, criminalizing material support has an even broader effect on freedom of association than criminalizing membership does: in this case, it prevented lawyers and law professors from filing friendof -the-court briefs on behalf of the PKK, the Tamil Tigers, or any other listed group. But much like the Vinson Court in the early 1950s, the Roberts Court was not about to apply the First Amendment too rigorously...