U.S to unfasten LTTE leash

By Alykhan Velshi and Howard Anglin

For nearly a decade, the policy of the American government has been to treat the Liberation Tigers of Tamil Eelam (LTTE) as a terrorist organisation. Americans are banned from donating money or providing any material support, to the LTTE; U.S. banks are forbidden from operating as a conduit for LTTE money; and the U.S. government vocally opposes the LTTE in international fora.

This may be about to change in the wake of an American court decision overturning the LTTE's designation as a terrorist entity. The case, Humanitarian Law Projects vs. Department of Treasury, arose after several individuals who wanted to provide assistance to the LTTE sued the U.S. government, arguing that the current ban on the terrorist group was unconstitutional. One of their principal claims is that the President of the United States has too much discretion to determine which groups are classified as terrorist entities.

In a shocking, and shockingly bad, judgment, Judge Audrey Collins, a federal trial judge from California, ruled last November that the President of the United States' designation of the LTTE as a terrorist entity was unconstitutional. If Judge Collins's decision is allowed to stand, the LTTE will be permitted to fundraise openly in the United States, and there will be no ban on those who associate with the LTTE.

At this time, the U.S. government has not officially committed to appealing Judge Collins's decision. It recently filed a motion asking Judge Collins to reconsider her opinion, which is a procedural formality that is rarely granted. When the government's motion is denied – as it likely will be – the clock will begin ticking on the 60 days the government will have to appeal.

It is vital to Sri Lanka's interests that the decision is appealed and overturned. If the LTTE is allowed to fundraise openly in the United States, its supporters on this side of the Pacific Ocean will be open for business and its coffers will fill with donations from the United States, Canada, the United Kingdom and Europe, which will allow it to increase the scope of its terrorist operations.

Whether the U.S. government chooses to appeal will involve several considerations, including whether it believes the LTTE is a sufficient threat to U.S. interests to warrant the expense and time of an appeal. We believe the Sri Lankan government has a real opportunity to influence that decision.

As a country that shares with the United States the goal of security under the rule of law, yet bears deep scars from decades of terrorism, Sri Lanka is ideally positioned to remind the United States that, as devastating as the attacks on the World Trade Centre and the Pentagon were, they are not the worst injuries that terrorist organisations can inflict. Sri Lankan officials should be exerting pressure on the White House, the Department of Justice, and the new Democratic majority in the Senate, explaining to them that the U.S. government cannot allow this dangerous decision to remain unchallenged.

Most Americans are regrettably unfamiliar with the murderous and unlawful activities of the LTTE. However this does not mean that the U.S. government is unaware of them. Indeed, the fact that the United States has specifically designated the LTTE as a terrorist organisation despite the fact that the LTTE's atrocities do not usually threaten United States citizens shows just how seriously the U.S. government takes them.

What is more – and Sri Lankan diplomats should be prepared to make this point to their U.S. counterparts – the groups acting on behalf of terrorists such as the LTTE are drawcansirs on the U.S. legal system, bullying their way through the courts, selectively filing cases with sympathetic judges, and cloaking their political mischief behind the magisterial guarantees of the Constitution. There is every reason to believe that U.S. officials, currently distracted by domestic political squabbles, will respond favourably to a sharp reminder of the real danger posed by these organisations and this decision.

If the United States does appeal the ruling, the Sri Lankan government will likely want to correct the misimpressions of Judge Collins’s opinion, which all but described the LTTE as "freedom fighters." The most direct and effective way of doing this would be to file a brief with the Court of Appeals as an amicus curiae – a "friend of the court" who provides a perspective beyond that of the parties to a case – explaining the violent nature of the LTTE and urging the court to recognize the President's inherent constitutional authority to prohibit any support or funding to the LTTE and similar terrorist organisations.

The Sri Lankan government should remind the Bush administration that, while the United States is threatened by fanatical adherents to al Qaeda’s barbaric philosophy, Sri Lankans face the LTTE's active campaign of terror every day. Cooperation cannot be a one-sided affair. The United States expects the Sri Lankan government's help in the fight against al Qaeda and its offshoots; it is not too much for Sri Lanka to expect the same in return in its fight against the LTTE.

Sri Lanka is a trusted and valued U.S. ally in the war to protect civil society against those who actively seek to destroy it. That U.S. soil might become a haven for donations to the LTTE is regrettable, but it is not inevitable. U.S. officials need to hear from their Sri Lankan counterparts, to be reminded of the dangers of letting the LTTE operate openly in the United States and the folly of allowing a single misguided legal decision to strip the President of his plenary authority over foreign affairs and waging war.

Alykhan Velshi, a lawyer based in Washington, DC, is legal counsel at the Center for Law & Counterterrorism. Howard Anglin is an appellate lawyer in Washington, DC. The opinions expressed are their own.