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From the President’s Desk When Is a ‘Terrorist’ Not a Terrorist? In our nation’s understandable effort to protect ourselves from further acts of terrorism, Congress and the administration have stretched the concept of “terrorist activity” beyond recognition. They have done violence to both the language and the law, causing real harm to innocent people. Thirty years ago I saw the same thing happen under South African occupation in Namibia. In 1975-76, under the auspices of the Lutheran World Federation, I took a year off from Harvard Law School to volunteer with the Lutheran churches in Namibia, observing political trials and helping with some of the churches’ legal defense efforts. At that time Namibia was still occupied by South Africa, which had also imposed the full force of the apartheid system. Understandably, the Namibians resisted. When the South Africans cracked down harshly on initial peaceful protests some Namibians took up arms under the South West Africa People’s Organisation (SWAPO). South Africa responded with the Terrorism Act of 1967. This law gave sweeping powers to the police to detain persons without trial or access to legal counsel, created a broad list of “terrorist” crimes, and switched the burden of proof to defendants to establish beyond a reasonable doubt that they had not engaged in alleged “terrorist” activities. Under this law a person who committed any act “with intent to endanger the maintenance of law and order” was defined as a “terrorist.” In the 1976 Swakopmund trial six Namibians were charged under the Terrorism Act. Three men were accused of having provided transportation to unknown persons who had murdered a tribal chief allied with the South Africans. Three women, nurses at a Lutheran hospital, were accused of having given 10 Rand ($11.50 at the time) each to SWAPO and of having crossed the border into Angola to minister to Namibian refugees, bringing them modest amounts of clothing, medical supplies and sanitary napkins. After a three-month trial in which it became clear that a number of the state witnesses had been tortured in detention, four of the accused were found guilty. Two men were sentenced to death. One nurse was sentenced to seven years’ imprisonment and another to five. (When it was revealed that the South African Security Police had had spies in the defense law firm the South African Supreme Court overturned the convictions and released the four.) What does all this have to do with the United States or with Lutheran Immigration and Refugee Service’s work with refugees and migrants? Under the “material support” provisions of 2005’s REAL ID Act, worthy refugees are being barred from entering the United States because of overly broad definitions of “terrorist activity” and “material support” for such activity. This little-known “material support” provision is rooted in the laudable goal of preventing terrorists and those who support them from entering the United States. However, the law breathtakingly expanded the definition of “terrorist activity” to include any use of a weapon or dangerous device with the intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property. If this language still appears reasonable, the Department of Homeland Security’s interpretation of the law reveals its serious flaws. Among those DHS has determined it must bar from entry to the United States are two broad groups: those who have given any aid to armed groups opposing brutal regimes, and those whose “support” was coerced…even violently. Under this interpretation refugees such as Burmese Christian religious and ethnic minorities who have assisted groups resisting the Burmese military junta and Colombians who have paid “taxes” or ransoms to guerilla groups under threat of rape and murder are being denied resettlement in the United States. As a result, the U.S. refugee resettlement program is already grinding down as DHS denies U.S. entry to thousands of internationally recognized refugees. Tens of thousands more already resettled in the United States as refugees or asylees may be denied lawful permanent residency or citizenship. When I was observing the Swakopmund trial 30 years ago, I never imagined that I would see the excesses of the South African Terrorism Act reflected in American law. Under this law and its interpretation George Washington and the Continental Army would be considered to have engaged in “terrorist activity.” Jews who bribed Nazis to escape Germany in early days of the Third Reich would be considered to have given “material support.” In our nation’s zeal to fight the war on terrorism we are doing violence to the language and to the law, and we ourselves are inflicting suffering on the innocent.
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