Former federal prosecutor Andy McCarthy recently argued at National Review Online that the federal government has reason to investigate Rashid Khalidi, an activist Middle Eastern studies professor at Columbia University. What prompted this? Khalidi's efforts to raise $370,000 for a new sea vessel (to be named The Audacity of Hope, after President Barack Obama's second book) designed to break the Israeli blockade of the Hamas-controlled Gaza Strip.
As increasing numbers of pro-Palestinian activists try to break the blockade of Gaza, McCarthy's argument is worth exploring. Are these flotillas legal?
McCarthy notes that it is illegal for Americans "to furnish or fit out a vessel in the service of any foreign entity 'to cruise, or commit hostilities' against a nation with which the U.S. is at peace." Israel, of course, is an American ally that is imposing a policy in Gaza that Washington officially supports.
McCarthy also notes that the Logan Act prohibits U.S. citizens "from carrying on 'any correspondence or intercourse' with any foreign government… to 'defeat the measures of the United States.'" To this end, McCarthy then suggests that the Justice Department should investigate flotilla organizers' communications with the de facto Hamas government in Gaza, particularly if they seek to undermine U.S. policy.
In the end, it is McCarthy's third point that is the most convincing: The Justice Department, under the Antiterrorism and Effective Death Penalty Act, could also investigate American flotilla organizers for providing material support to a terrorist group.
Hamas was designated as a terrorist organization by the State Department in 1997 and the Treasury Department in 1995. After more than two decades of suicide bombings and firing rockets at civilian populations, its status has not changed. The only thing that has: Hamas is the de facto government in Gaza after launching a violent coup against the Palestinian Authority in 2007.
So, when flotilla organizers raise money to send to the Gaza Strip, which is controlled entirely by Hamas, they could be directly or indirectly bankrolling Hamas. To find out if this is the case, they will need to explain: Will they deliver the goods directly to the hands of the Hamas government in Gaza? Will they work through the United Nations? Do they know if the U.N.'s humanitarian efforts are governed by Hamas? Will they work through other NGOs? Are those NGOs free to work outside of the control of Hamas in the Gaza Strip?
According to a Supreme Court decision in June (Holder v. Humanitarian Law Project), the prohibition against material support can apply even when the offerings are not money or weapons.
Not surprisingly, this has triggered criticism, including from former president Jimmy Carter, who advocates for engagement with Hamas. Carter says the material support clause "inhibits the work of human rights and conflict resolution groups."
However, as Chief Justice John Roberts noted, even if the support is administered with peaceful intent, it can lighten the financial burden of a terrorist group, and thus allow it to expend resources on terrorist activities.
Justice Roberts added that such support also "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 debate will undoubtedly continue. As it does, Rashid Khalidi and The Audacity of Hope could serve as a litmus test.
Jonathan Schanzer is a former U.S. Treasury terrorism analyst. He is the vice president of research for the Foundation for Defense of Democracies.