Axelrod on the Humanitarian Law Project Opinion

Robert Axelrod, surely familiar to most of us who teach dispute resolution, co-authored an Op-Ed in the New York Times shortly after the Supreme Court’s decision in Holder v Humanitarian Law Project.  (Available here, and reproduced below.) Somehow, I missed this article when it first came out.  Tip of the hat to Jen Reynolds for re-forwarding it to me.

I spent some time this summer, working on a response to / analysis of the Supreme Court’s opinion in this case.  To be candid, my first response was to wonder whether, in my works in a previous life, working on trans-national conflict management, I had ever violated the statute in question.  My second response was to have a  research assistant investigate carefully the statute of limitations, an exercise I deemed potentially relevant, given my prior professional life.

Then I put on my scholar hat.  The court’s First Amendment analysis seemed to me problematic in its framing, and I engaged in some preliminary analysis of the court’s approach to the question.  The more I thought about the case and the statute under consideration, though, the more I kept coming back to the basic thesis, “Wow I wish Congress had not passed a law written this way.”  As scholarly conclusions go, that one obviously leaves a fair amount to be desired.  I’m glad that Axelrod and his colleague provided this articulate critique of the policies in question.  Now I feel like I can let go of this project and go back to worrying about the statute of limitations.


Why We Talk to Terrorists
Published: June 29, 2010

NOT all groups that the United States government classifies as terrorist organizations are equally bad or dangerous, and not all information conveyed to them that is based on political, academic or scientific expertise risks harming our national security. Unfortunately, the Supreme Court, which last week upheld a law banning the provision of “material support” to foreign terrorist groups, doesn’t seem to consider those facts relevant.

Many groups that were once widely considered terrorist organizations, including some that were on the State Department’s official list, have become our partners in pursuing peace and furthering democracy.

The African National Congress is now the democratically elected ruling party in South Africa, and of course Nelson Mandela is widely considered a great man of peace. The Provisional Irish Republican Army now preaches nonviolence and its longtime leader, Martin McGuinness, is Northern Ireland’s first deputy minister. Mahmoud Abbas and the Palestine Liberation Organization have become central players in Middle East peace negotiations.

In the case of each of these groups, there were American private citizens — clergymen, academics, scientists and others — who worked behind the scenes to end the violence.

The two of us are social scientists who study and interact with violent groups in order to find ways out of intractable conflicts. In the course of this work and in our discussions with decision makers in the Middle East and elsewhere we have seen how informal meetings and exchanges of knowledge have borne fruit. It’s not that religious, academic or scientific credentials automatically convey trust, but when combined with a personal commitment to peace, they often carry weight beyond mere opinion or desire.

So we find it disappointing that the Supreme Court, in Holder vs. Humanitarian Law Project, ruled that any “material support” of a foreign terrorist group, including talking to terrorists or the communication of expert knowledge and scientific information, helps lend “legitimacy” to the organization. Sometimes, undoubtedly, that is the case. But American law has to find a way to make a clear distinction between illegal material support and legal actions that involve talking with terrorists privately in the hopes of reducing global terrorism and promoting national security.

There are groups, like Al Qaeda, that will probably have to be fought to the end. The majority opinion of the Supreme Court reasonably conjectures that any help given such enemies, even in seemingly benign ways like instruction about how to enhance their human rights profile, could free up time and effort in pursuit of extremist violence.

Yet war and group violence are ever-present and their prevention requires America’s constant effort and innovation. Sometimes this means listening to and talking with our enemies and probing gray areas for ways forward to figure out who is truly a mortal foe and who just might become a friend.

It is important to realize that in a political struggle, leaders often wish they could communicate with the other side without their own supporters knowing. Thus the idea that all negotiation should be conducted in the open is simply not very practical. When there are no suitable “official” intermediaries, private citizens can fill the gap.

Conditions, of course, should be stringent — there must be trust on all sides that information is being conveyed accurately, and that it will be kept in confidence as long as needed. Accuracy requires both skill in listening and exploring, some degree of cultural understanding and, wherever possible, the intellectual distance that scientific data and research afford.

In our own work on groups categorized as terrorist organizations, we have detected significant differences in their attitudes and actions. For example, in our recent interactions with the leader of the Palestinian militant group Islamic Jihad Ramadan Shallah (which we immediately reported to the State Department, as he is on the F.B.I.’s “most wanted” list), we were faced with an adamant refusal to ever recognize Israel or move toward a two-state solution.

Yet when we talked to Khaled Meshal, the leader of Hamas (considered a terrorist group by the State Department), he said that his movement could imagine a two-state “peace” (he used the term “salaam,” not just the usual “hudna,” which signifies only an armistice).

In our time with Mr. Meshal’s group, we were also able to confirm something that Saudi and Israeli intelligence officers had told us: Hamas has fought to keep Al Qaeda out of its field of influence, and has no demonstrated interest in global jihad. Whether or not the differences among Al Qaeda, Islamic Jihad, Hamas and other violent groups are fundamental, rather than temporary or tactical, is something only further exploration will reveal. But to assume that it is invariably wrong to engage any of these groups is a grave mistake.

In our fieldwork with jihadist leaders, foot soldiers and their associates across Eurasia and North Africa, we have found huge variation in the political aspirations, desired ends and commitment to violence. And as one of us (Scott Atran) testified in March to the emerging-threats subgroup of the Senate Armed Services Committee, these differences can be used as leverage to win the cooperation of the next generation of militants, who otherwise will surely become our enemies.

It’s an uncomfortable truth, but direct interaction with terrorist groups is sometimes indispensable. And even if it turns out that negotiation gets us nowhere with a particular group, talking and listening can help us to better understand why the group wants to fight us, so that we may better fight it. Congress should clarify its counterterrorism laws with an understanding that hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.

Scott Atran, an anthropologist at France’s National Center for Scientific Research, the University of Michigan and John Jay College, is the author of the forthcoming “Talking to the Enemy.” Robert Axelrod is a professor of political science and public policy at the University of Michigan, and the author of “The Evolution of Cooperation.”

3 thoughts on “Axelrod on the Humanitarian Law Project Opinion”

  1. It was unambiguously bad…

    Or I suppose, to be fair, it was apparently well-drafted, but reflects a quite different policy perspective than one I would endorse.

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