Rudrakumaran issue: US Laws criminalize contacts with FTOs even to promote peace

Daya Gamage – Asian Tribune US Bureau Analysis – Part Four
Washington, DC. 12 October (Asiantribune.com):

When the Humanitarian Law Project (HLP), Tamils Against Genocide and several other organizations and individuals who brought the law suit before the United States Supreme Court last year they expected to obtain a judgment that provision of support of the kind which they intended – non-lethal tools to further political advocacy and peace-building – could not be legitimately criminalized under the US constitution.

The HLP, wanted to facilitate to help provide training to the Kurdistan Workers’ Party (PKK) and Sri Lanka’s LTTE in the use of “humanitarian and international law to peacefully resolve disputes”, “engage in political advocacy on behalf of the Kurds who live in Turkey and Tamils who live in Sri Lanka”.

At the conclusion of his three-day official visit to Sri Lanka assistant secretary Robert Blake addressing a media briefing in Colombo December 9 (2009) to a query about Visuvanathan Rudrakumaran, the legal adviser to the LTTE and counselor to its leader V. Prabhaharan, said: “I won’t say Rudrakumaran is a well known LTTE activist. He is an advisor on several peace delegations in the LTTE. And to the best of our knowledge he has not committed any crime in the U.S. If people have information to the contrary we welcome that information.”

The US Supreme Court (USSC) in its ruling last year upheld the Material Support statute as applied even to peacemakers. Chief Justice Roberts reading the majority ruling said, allowing such peaceful advocacy would undermine U.S. relations with allies.

The ruling said: “Material support meant to “promote peaceable, lawful conduct,” (According to the Brief for Plaintiffs), can further terrorism by foreign groups in multiple ways. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”

The USSC ruling noted that Congress and the executive branch had both concluded that even benign support like this can benefit terrorist organizations by giving them an air of legitimacy, or allowing such organizations to use negotiations to stall while they regroup from previous losses.

The Government of Sri Lanka at any legal forum could present more and enough evidence and data to justify the USSC ruling how the Tamil Tigers made use of the ‘peace process’ to which Mr. Rudrakumaran was a partner to regroup and unleash fresh onslaughts against the country’s national military, massacres of unarmed civilians and disruption to the nation’s infrastructure and economy.

When Congress enacted §2339B, the Supreme Court said, it simultaneously removed an exception that had existed in §2339A(a) (1994ed.) for the provision of material support in the form of “humanitarian assistance to persons not directly involved in” terrorist activity. That repeal demonstrates that Congress considered and rejected the view that ostensibly peaceful aid would have no harmful effects.

The Supreme Court repeatedly emphasized that the Congress, when it passed the statute proscribing material support, found that designated FTOs “are so tainted by their criminal conduct that any contribution to such an organization facilitates that [criminal] conduct.” Accordingly, Chief Justice Roberts wrote that “[a]t bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive Branch that providing material support to a designated foreign terrorist organization–even seemingly benign support–bolsters the terrorist activities of that organization.”

The Supreme Court maintained that individuals are still free to advocate for the PKK, LTTE or other designated FTOs, on condition that such advocacy is completely “independent” and not subject to the control of the relevant FTO or was not undertaken in concert with it.

While these Congress-enacted statutes were in operation Mr. Rudrakumaran, an American citizen, maintained contacts with Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) a US designated foreign terrorist organization (FTO).

Contacts with designated FTOs prohibited under US laws

Under these statutes, no US government official or an American citizen are allowed to have any dialogue with an FTO. The USSC in its 2010 judgment has confirmed this. This was the reason that the US Agency for International Development (USAID) which is the overseas economic assistance arm of the USG did not want to participate in Sri Lanka government established P-TOM (Post Tsunami Operation Management) to involve in tsunami rehabilitation in 2005 as the LTTE was represented in the management. No State Department official since the designation of the LTTE in 1997 as a FTO has had any contact with any representative of the LTTE.

Despite the terrorist Haqqani Network has attacked American and NATO installations which include the American embassy in Kabul and has attacked American personnel in Afghanistan, the USG has not designated the network a FTO to maintain a line of contact with the terrorist group. As long as the State Department has not designated the Haqqani Network American government officials could open talks and maintain a dialogue with them.

In August (2011) American officials held a secret meeting with leaders of the Haqqani network. The purpose was to explore ever so delicately how the group, or at least some of its members, might join talks to end the war in Afghanistan.

The meeting in Dubai was attended by United States officials, a trusted senior family member of the Haqqanis, other militant leaders and a senior Pakistani spy agency ISI interlocutor. The meeting was first reported by ABCNews.com and The Wall Street Journal.

While some U.S. military commanders have called for the designation of Haqqani Network a FTO, the Obama administration has held off until now, fearing such a move might alienate the Haqqanis and drive them away from future talks.

Haqqani network leaders have indicated in recent days that they were willing to negotiate, but on their own terms. The group maintains close ties to the Taliban, but often works independently.

The US-Haqqani dialogue episode clearly indicates that once a foreign terrorist movement is designated a FTO no USG official or a citizen could have any dialogue or contacts with such group.

How could Mr. Rudrakumaran, an American citizen, not only maintained dialogue and contact with the hierarchy of a US designated FTO but was using his expert knowledge of law to provide ‘expert advice’ to the organization to shape its direction?

The Asian Tribune stresses here and underscores that Visuvanathan Rudrakumaran gave his expert advice to a US designated FTO while being a citizen of the United States. His status as a U.S. citizen, he is bound by all federal laws now in operation. Further, Mr. Rudrakumaran has no alternative but to accept all decisions of the highest court of the land as a citizen. He further has to accept all laws enacted by the US Congress which become laws of the land moment they were ratified.

In the previous Part Two & Three, the Asian Tribune recorded the USSC interpretation of material support to US designated FTOs.

Despite Mr. Rudrakumaran’s belief that Sri Lanka’s Tamil Tiger outfit was a national liberation movement, the Congress’ ratified statutes, the subsequent Appeal Court rulings in 2009 on the same issue of material support and USSC’s 2010 ruling of the statutes that confirmed the 2009 Appeal Court ruling were based on the premise that the Tamil Tiger outfit was a FTO under federal laws. In fact, Mr. Rudrakumaran has provided ‘expert advice’ to a US designated FTO under statutes ratified by the Congress into law. The legal force of those statutes was upheld by the Ninth Circuit Appeal Court in 2009 and subsequently by the US Supreme Court in 2010.

While the statutes were in full operation, Visuvanathan Rudrakumaran used his expert knowledge of law to advice the LTTE since 1990’s until the demise of the outfit in May 2009.

In Part Two & Three we placed the USSC interpretation of the aspect of the ‘material support’ laid down by the statutes, and connected the interpretation to the conduct of Mr. Rudrakumaran.

At the outset, we placed the interpretation of the US Supreme Court that even the intent to promote peace and negotiations to a US designated FTO contravenes the federal statutes.

How much of deep connection Mr. Rudrakumaran had with the LTTE?
We dealt in the previous three parts the criminality of providing material support which is described in the statutes.

At the outset of this Part Four we noted that the US Supreme Court (USSC) in its ruling last year upheld the Material Support statute as applied even to peacemakers. Chief Justice Roberts reading the majority ruling said, allowing such peaceful advocacy would undermine U.S. relations with allies.

The ruling said: “Material support meant to “promote peaceable, lawful conduct,” (According to the Brief for Plaintiffs), can further terrorism by foreign groups in multiple ways. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”

The plaintiffs who appeared on behalf of Sri Lanka’s LTTE and Turkey’s PKK before the USSC expected to obtain a judgment that provision of support of the kind which they intended – non-lethal tools to further political advocacy and peace-building – could not be legitimately criminalized under the US constitution.

The USSC overruled that argument. Mr. Rudrakumaran’s exercise all these years with Sri Lanka’s Tamil Tiger leadership “to further political advocacy and peace-building” was ruled by the USSC as total violation of the statutes which cover material support to FTOs.

Under these statutes, no citizen in the U.S. is allowed to maintain any contacts as well as provide expert advice to a designated foreign terrorist organization such as Sri Lanka’s LTTE.

We record here the up-close and personal contacts Visuvanathan Rudrakumaran maintained with the hierarch of the LTTE, a US-designated FTO.

The LTTE media outlet TamilNet in its 03 December 2006 issue describing Visuvanathan Rudrakumaran as the legal advisor to the Tamil Tiger outfit quoted him from his address at the LTTE Heroes Day event held the previous day at South Brunswick Middle School in New Jersey explaining the legal rights of U.S. citizens with regard to anti terrorism legislation in the United States as saying while the Anti Terrorism and Effective Death Penalty Act (AEDPA) amended by the Patriot Act and Intelligence Reform and Terrorism Prevention Act (IRTPA) prohibits providing material support to designated organizations, “the Statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group”, in this case meaning the LTTE, a group designated an FTO in the U.S.

Mr. Rudrakumaran is absolutely correct; we cited the USSC ruling that the material support statutes do not prohibit anyone being a member of a FTO or vigorously promoting or supporting the political goals of such a FTO.

The TamilNet quoted Mr. Rudrakumaran as saying “while the Anti Terrorism and Effective Death Penalty Act (AEDPA) amended by the Patriot Act and Intelligence Reform and Terrorism Prevention Act (IRTPA) prohibit providing material support to designated organizations….” In which he was aware that there were federal statutes in operation criminalizing material support to designated FTOs.

Visuvanathan Rudrakumaran’s close rapport with the LTTE

In November 1997, Rudrakumaran, among others, was retained by the LTTE Secretariat in London, U.K. to challenge the State Department ‘terrorist’ designation of the outfit in the U.S. Court of Appeals in Washington D.C. The U.S. designated it a ‘foreign terrorist organization’ on October 8, 1997 under the Anti-Terrorism Act of 1996.

He participated in the LTTE delegation in the:

(a) Thimphu Talks in 1985

(b) The 4th round of Peace Talks Phase One with the Sri Lanka Government in Thailand from 16 through 18 September 2002

(c) The 4th round of Peace Talks Phase Two with the GSL in Thailand from 31 October through 03 November 2002

(d) The 4th round of Peace Talks Phase Three with the GSL in Norway from 02 through 05 December

(e) The 4th round of Peace Talks Phase Four with the GSL at Thailand from 06 through 09 January 2003

(f) The 4th round of Peace Talks Phase Five at the Norwegian Embassy in Berlin, Germany from 07 through 08 February 2003

(g) In the failed Oslo Talks with the GSL from 08 through 09 June 2006

(h) The Geneva Talks Two from October 28 & 29 2006

Rudrakumaran participated in the Canberra Conference in 1996, in which, supporters of the separatist LTTE movement in Sri Lanka had gathered.

Delivered a special address on the LTTE’s Heroes’ Day celebration at New Jersey, USA, organized by a Tamil Front Organization.

The LTTE’s constitutional committee meeting was held in Paris in August 2003; and as an advisor for constitutional affairs of Tamil Tigers he convened the meeting.

Concluding Remarks

The record is very clear that Visuvanathan Rudrakumaran had close working relationship with Sri Lanka’s LTTE which is a designated FTO under U.S. federal laws. His statements and his collaboration with the operation of the LTTE to further the latter’s goals are clear indications that he does not fall within the reading of Section 2339B(h) which states that the ban on “personnel” does not criminalize the conduct of “individuals who act entirely independently of the foreign terrorist organization to advance its goals and objectives.”

What the U.S. Justice Department needs to ascertain is whether Rudrakumaran’s actions falls within the definition of Section 2339B(h). Section 2339B(h) clarifies that section 2339B(a) criminalizes providing “personnel” to a foreign terrorist organization only where a person, alone or with others, “works under that terrorist organization’s direction or control or . . . organizes, manages, supervises, or otherwise directs the operation of that organization.”

What type of a relationship did Visuvanathan Rudrakumaran maintain with the hierarchy of the LTTE? According to established reports his association seems to have been at the highest level under the direction of the LTTE. And, did he direct the operation of the LTTE in the spheres of legal and political conduct essential for it to advance its goals and objectives?

The next issue before Rudrakumaran is whether he was aware that he was dealing with an organization which uses terror as a weapon and that the organization is a designated FTO by the United States.

Terrorist to one is a liberation fighter to another. To Visuvanathan Rudrakumaran the Tamil Tigers are liberation fighters, but to U.S. authorities under federal statutes it is a foreign terrorist organization.

Providing “material support or resources” to a designated foreign terrorist organization includes a mens rea (knowledge) requirement. To violate the statute, a person who provides “material support or resources” to a designated organization must know that (1) “the organization is a designated terrorist organization,”(2) “the organization has engaged or engages in terrorist activity,” or that (3) “the organization has engaged or engages in terrorism.” 18 U.S.C. § 2339B(a)(1) is very clear on this.

The argument that the LTTE is a liberation organization does not negate 18 U.S.C. § 2339B(a)(1)

This Section exposes one to criminal liability only where the government proves that the donor defendant acted with culpable intent — knowledge.

The most important USSC ruling in 2010 when taking Mr. Rudrakumaran’s ‘peace efforts’ into consideration said: “Material support meant to “promote peaceable, lawful conduct,” (According to the Brief for Plaintiffs), can further terrorism by foreign groups in multiple ways. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”

Then Rudrakumaran’s declaration that the LTTE has the right to procure arms and import because it is a liberation movement needs serious focus.

This politico-legal interpretation of the conduct of Visuvanathan Rudrakumaran and “Material Support” laws as they stand today in the light of the July 2010 US Supreme Court ruling while upholding the ruling of the 2009 US Ninth Circuit Court is a reminder to the Sri Lankan authorities that it needs to focus on activities that are taking place on behalf of the goals and aspirations of the LTTE in the international arena which can harm the progress that this South Asian nation has undertaken to redress the grievances of all ethnic communities. Rudrakumaran’s endeavors at present may further complicate the relations Sri Lanka has with the West.

Sri Lanka has internally defeated the LTTE but needs to go beyond her shores to prevent the remnants of the outfit becoming an influential lobby in the West which Rudrakumaran intends to build. What is happening globally is the slow building of a “Kosovo-type atmosphere” to achieve a separate/independent state in Sri Lanka. And, Visuvanathan Rudrakumaran undoubtedly is at the center of this campaign.

Sri Lanka needs to work with the United States Department of Justice and its investigative arm the FBI, the Department of Homeland Security and the State Department to get cogent answers surrounding the behavior of Visuvanathan Rudrakumaran who is subject to U.S. laws, definitely covered by the many antiterrorism laws and ‘Material Support’ laws that we have highlighted in the Four Parts already carried.

Also Read:

LTTE operative Rudrakumaran’s accountability -USSC ruling on ‘Material Support’ to terrorism – Part One

Rudrakumaran’s Accountability: USSC interprets ‘how speech aids terrorism’ – Part Two

Rudrakumaran’s Accountability: Providing ‘expert advice’ to US-designated FTO– Part Three

– Asian Tribune –

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