Franz Kafka, George Orwell, Joseph Heller, bow down before your masters — the six justices of the U.S. Supreme Court backing a recent ruling that makes the three of you look like Pollyanna, Peter Pan and Pangloss. To describe the court's "material support" decision as Kafkaesque, Orwellian or a Catch-22 is to minimize the absurdity of its reasoning.
At issue was a provision of the Patriot Act that says Americans who provide "material support" to foreign terrorists can be prosecuted and convicted of criminal activity.
Sounds reasonable enough. Any Americans who help a terrorist organization with money, weapons, intelligence information and the like deserve to spend a lengthy period of enforced solitude contemplating the error of their ways. But the Patriot Act's definition of material support also includes "advice or assistance," and the language is a bit vague on exactly what that means.
So, the Humanitarian Law Project, an organization that promotes peaceful resolutions to conflicts around the globe, went to court in search of some clarification. Specifically, the group wanted to know if it would be violating the law by trying to teach the Kurdistan Workers Party, a designated terrorist organization, the value of settling its grievances peacefully.
Yes, the court said, in a majority opinion by Chief Justice John G. Roberts Jr. that ripped logic and the First Amendment's language on free speech to shreds.
Regardless of its peaceful goals, any such interaction with terrorists constitutes "material support" under the Patriot Act.
Roberts' reasoning for reaching this conclusion was, generously speaking, somewhat tortured. Such support could free up some of the terrorists' other resources for violent use, he wrote.
Excuse us? Exactly what other resources would be freed for violent use when some altruist meets with a group of terrorists and says, "Hey, guys, ever thought about laying down your weapons and giving peace a chance? Here's why it would be a better deal for you."
Roberts also worried that such contact with terrorist groups would "lend legitimacy" to their causes.
But he undermined his own argument by acknowledging that an American is perfectly free to speak out in support of a peaceful resolution of terrorists' grievances as long as there is no coordination between the speaker and the terrorists. It's only when the cause of peace is promoted up close and personal that it becomes akin to the terrorism itself by Roberts' reasoning.
Perhaps as troubling as the ruling itself was the abdication of responsibility by a court that did not question the need for this encroachment on Americans' right to freedom of speech. Instead, the court simply deferred to the assertions by Congress and the executive branch that it was needed.
Our founding fathers divided power among three branches of government for good reason — as a means of keeping one branch or even two from overreaching.
We need that balancing act to work at all times, but the need is never greater than during times of war when elected officials in the legislative and executive branches are wont to push through ill-considered initiatives — such as the assault on civil liberties known as the Patriot Act — in hopes of placating public fears sufficiently to win re-election.
It is at such times we need cooler and wiser heads on the Supreme Court to recognize that criminalizing the promotion of peace by defining it as "material support" for terrorists warps reason in ways not even Kafka, Orwell or Heller could imagine.
