Imagine a school where the principal’s rules prevent a teacher from telling a bully to stop picking on another child. That is essentially what the Supreme Court told U.S. peacebuilding groups in its June 21, 2010 decision in Holder v. Humanitarian Law Project (HLP).

The divided court ruled that that it is constitutional for Congress to ban any kind of “support” to designated terrorist organizations, even when it is designed to teach them how to use international law to resolve disputes without violence. This simply lacks common sense. Training terrorist groups to pursue peaceful resolution of their disputes should be encouraged, not criminalized. But rather than using every tool at our disposal to disarm terrorist groups, the court has left us to fight shorthanded. The results of this policy are clear- lost opportunities to reduce violence and compete with terrorist recruiters.

The court reached this stunningly nonsensical result because it said it must defer to Congress and the administration in matters of national security. This extraordinary level of deference places an extraordinary responsibility on Congress and the President to review current policies and make some changes.

In arguing the case for the government, Supreme Court nominee Elena Kagan cited “findings” by Congress that said any form of assistance to terrorist groups furthers their violent agenda. She also said Congress has adopted a strategy of barring all communications with these groups in order to make them “radioactive.” The idea is that making them into international pariahs will make them lose local support.

There is a disconnect between these theories and reality. There are also questions about what is the smart and humane policy. For instance:

Peacebuilding does not aid terrorism: This axiom may seem obvious, but the majority’s opinion rejects it. Chief Justice Roberts argued that conflict mediators and peacebuilding trainers “legitimize” terrorist groups by teaching nonviolent conflict resolution skills. This ignores the fact that conflicts cannot be effectively resolved unless all parties are part of negotiations. It also confuses the role of independent civil society groups with governments. If the State Department provided the training it would confer a level of legitimacy, but nongovernmental groups play a different role.

Experts in peacebuilding have standards and protocols to address the issues Roberts raises. A May 2010 Special Report from the United State Institute of Peace, Mediating Peace With Proscribed Armed Groups recognizes the pitfalls and risks involved. But it goes on to lay out measured criteria and conditions for engaging these groups. It notes that “counterterrorism measures create impediments for peace negotiations.” It recommends steps to reform the process, including “a proper evaluation of the effectiveness of existing proscription and deproscription regimes in the context of the greater political objectives of promoting successful peace processes and political settlements, leading to improved governance and social and economic development.”

The “radioactive” strategy alone does not work: Listing and shunning terrorist groups is not enough to have them lay down their arms. One designated group in the HLP case, the Kurdistan Workers Party, (PKK) was labeled a terrorist organization by the U.S. government before the HLP case was filed 14 years ago, but it is still operating.  The day before the Supreme Court ruled in the HLP case, the Washington Post reported on increased fighting between the PKK and Turkish soldiers.  Then the day after the decision a tragedy occurred that might have been avoided if the Humanitarian Law Project had been allowed to teach the PKK to solve its problems through nonviolent means. A PKK affiliated group bombed a bus in Istanbul, killing four soldiers and a 17 year old civilian.

Collective punishment is wrong: The “radioactive” theory has an underlying assumption that denying any kind of assistance, including peacebuilding and humanitarian aid, will cause the civilian populations to suffer and that they will blame that suffering on the terrorist group. This amounts to collective punishment of entire populations, a violation of Article 2 of the Universal Declaration of Human Rights, which calls for, “Non-discrimination in delivery of services and benefits, including factors such as ethnicity, religion, opinion, national origin, or the political or international status of the nation to which a person belongs” (emphasis added).

Humanitarian considerations aside, there is a real question about who gets blamed when aid or resources for peace negotiations are withheld. Unfortunately, it is often the U.S., and not the terrorist group, that is seen as the problem.

The HLP decision has serious implications for humanitarian aid and disaster relief operations in conflict zones. According to UPI, Simon Schorno, a spokesman for the International Committee of the Red Cross in Washington, said their lawyers are reviewing the case. “Part of our mandate is to instruct fighters in the principles of international law and rules of war. We don’t yet know how the decision will affect our activities. We certainly expect to continue to disseminate humanitarian aid,” Schorno said.

What’s Next?

In the coming months Congress needs to conduct hearings and investigations to look at the assumptions behind current law and determine whether or not they are valid. It is likely they will find that in most instances, allowing U.S. conflict mediators, peacebuilders and humanitarian aid workers to do their work weakens terrorist groups, and they can change the law to allow it to happen.