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Excerpt from "Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts

Making Peace Illegal

by Doug Noll

Imagine that you and your team are called to mediate a violent regional conflict. One of the parties that must be at the table has been identified by the United States Secretary of State as a foreign terrorist organization. You and your team begin meeting with the parties separately, including representatives of the terrorist organization, engaging in dialogue, coaching on process, and facilitating an eventual joint problem-solving conference. At the conference some months later, you work with all of the parties by facilitating collaborative problem-solving, identifying and discussing deep injustices, and, along the way, coaching parties, de-escalating them, re-engaging their moral compasses, listening, asking questions, and creating a strong, safe container for the work. Months go by and finally the parties are able to find a way to stop the violence. They agree to continue their work non-violently. A small miracle of peace has occurred in large part because of you and your team’s efforts. At the end of the engagement, you return to JFK International Airport. As you enter the terminal, you are met by a team of FBI agents who proceed to arrest you, handcuff you, make you do the perp walk in front of the national media, and book you into federal prison. You have been charged with multiple violations of the Patriot Act and face 15 years in prison for each charge. All you did was bring peace to a land torn by years of violence.

One has to question the commitment of countries like the United States to peace when they make peacemaking work with the most violent groups on the planet illegal. As Justice Department lawyer Douglas Letter stated in oral arguments to the 9th Circuit Court of Appeal, “Congress wants these organizations to be radioactive.” But that lawyer and his political masters have failed to ask and answer the question, “If terrorists are ‘radioactive,’ how can we ever find peace with them.

The US government claims it has an interest in cutting off support to any terrorist organization because support of any kind may benefit the organization.

“Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs,” argued Elena Kagan before the US Supreme Court.2

Federal law makes it a crime to provide material support to any organization designated as a terrorist group by the secretary of state. But the definition of “material support” includes not just providing weapons, money, or bomb-making skills; it includes providing any sort of expert advice, training, or personnel—including advice on how to resolve disputes peaceably or training on how to make human rights claims before the United Nations. Interestingly, the law permits religious training without exception. So you can teach revolution by jihad and bomb making as long as you do it within the boundaries of religious training, but you cannot teach peacemaking if it is secular.

No person within the United States or subject to its jurisdiction may “knowingly” provide “material support or resources” to a designated foreign terrorist organization. Material support or resources includes anything you can imagine. It includes training, expert advice, or assistance, facilities, and transportation. If, as a mediator or peacemaker, you were to arrange for a conference room (a facility), provide for a bus ride (transportation), teach negotiation or other peaceable means of conflict resolution (training), or be a mediator, facilitator, or go-between (assistance), you have, according to the US attorney general, committed a serious federal felony.

Juan Zarate, who served as President George W. Bush’s deputy national security adviser for counterterrorism, has said:

If you’re training them on how to make their case before a U.N. tribunal, what you’re doing is giving them the skills, the ability to legitimate their cause to advocate their position, and from a U.S. government standpoint, that’s dangerous.

Part of the issue here is that we are dealing with multiple terrorist organizations around the world that are complex organizations. In many respects, they are not just militant organizations, they have charitable wings, they have political arms, and so the application of the statute runs into complications because there may be cases in which it appears legitimate to deal with these organizations from a political or humanitarian standpoint.

It’s hard to put your arms around it sometimes because it may appear to be a distinction without a difference. But I think in terms of the law, it’s actually a very important distinction, one in which the U.S. government is saying, “This group, these groups listed by the secretary of state, are off limits to U.S. citizens.”3

The problem this poses to peacemaking in the world is not esoteric. Peacemaking, conflict resolution, human rights advocacy, and the provision of aid to civilians requires direct engagement with people that resort to or support violence, including terrorists. For example, mediators must negotiate with armed rebels and governments. Each side must be provided with strategic advice and expertise on identifying injustices and interests and how to satisfy them. Peacemaking often requires direct persuasion and lobbying of armed factions to choose nonviolent means to achieve their ends. Human rights advocacy requires peacemakers to persuade offenders to stop their abusive practices, to explain moral and legal obligations under human rights and humanitarian law, and to teach compliance with those obligations.

Major institutions for peace could easily be indicted for their peacemaking work. For example, the Carter Center mediates conflicts, helps implement peace agreements, strengthens rule of law, and facilitates dialogue between warring factions. It offers mediation and facilitation services for peacemaking in Africa, the Middle East, Latin America, and Asia. It has worked with, among others, the PLO, Fatah, Hamas, Hezbollah, the SPLN in Sudan, the Lord’s Resistance Army in Uganda, and the Maoists in Nepal. This work requires meeting with all sides to a conflict, including violent people designated as foreign terrorist organizations. You can’t do peacemaking from a university campus—you have to be in the thick of the conflict and engage the parties in a conflict.

The Patriot Act calls all of this work into question. It makes peacemaking and humanitarian efforts with the most violent people in the world illegal. The very thing that the US government professes to want the most, peace, has been made illegal. President Jimmy Carter, a Nobel Peace Prize Laureate, could be indicted and convicted by the government he once led, for his personal peacemaking efforts.

Doug Noll is an attorney that focuses on peacemaking and moderation rather than litigation. He is the author of several books and gives tips on negotiation, peacemaking, and conflict transformation. http://www.nollassociates.com/

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