U.S. advocates of a separate independent state for Sri Lanka (Tamil Eelam), an agenda the slain Sri Lanka’s LTTE leader Prabhakaran endeavored to achieve militarily for 26 years until the outfit was annihilated last May, are now before the United States Supreme Court to clear a significant legal hurdle with a political agenda to create a ‘Kosovo-type’ situation in Sri Lanka.
The Tamil Eelam advocates in the U.S., who frequently get audiences with State Department officials such as assistant secretary for South Asia Robert Blake and who were well known for their advocacy of justifying the armed struggle of the LTTE (Tamil Tigers) and its procurement of arms for the realization of a separate Tamil independent state in the north and east of Sri Lanka have tied up with a prominent U.S. civil rights organization Humanitarian Law Project (HLP) to challenge several significant provisions in many anti-terrorism statutes with the objective of clearing the path to diplomatically isolate Sri Lanka highlighting issues such as war crimes, human rights abuses, subversion of democracy and genocidal policy against minority Tamils to create an international awareness that the sole solution to Sri Lanka’s national problem is by the creation of a separate independent Tamil state in the predominantly Tamil districts of north and east. Similarly, it took several years for the creation of such an international awareness that finally gave birth to the State of Kosovo in the former Republic of Yugoslavia - the United States as the main sponsor and backer.
The U.S. Supreme Court on February 23 is scheduled to take its first look at the often controversial USA PATRIOT Act, deciding whether portions of the law that make it a crime to provide "material support or resources" to designated terrorist groups are unconstitutional.
Question presented to the Supreme Court is: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a (US) designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.
Among the plaintiffs in this case are supporters of the Kurdistan Workers Party ("PKK") of Turkey and the Liberation Tigers of Tamil Eelam ("LTTE") of Sri Lanka. The PKK and LTTE engage in a variety of both lawful and unlawful activities. They sought an injunction to prevent the U.S. government from enforcing sections of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Section 302 authorizes the U.S. Secretary of State to designate a group as a "foreign terrorist organization." Section 303 makes it a crime for anyone to provide "material support or resources" to even the nonviolent activities of a designated organization.
In previous cases, the courts have held that Section 303 was unconstitutionally vague. U.S. Congress then passed the Intelligence Reform and Terrorism Prevention Act ("IRTPA") which amended the AEDPA. It added a state of mind requirement that individuals "knowingly" provide "material support or resources" in order to violate the Act. Congress also added terms to the Act that further clarified what constituted "material support or resources." The government moved for summary judgment arguing that challenged provisions of the AEDPA were not unconstitutionally vague. Previously the district court granted a partial motion for summary judgment, but held that some parts of the Act were unconstitutionally vague.
On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed, holding that the terms "service," "training," or "other specialized knowledge" within the AEDPA, as applied to the plaintiffs, were unconstitutionally vague.
Both the U.S. Government and supporters of the LTTE and PKK appealed to the U.S. Supreme Court, and the court will hear arguments on February 23.
The outcome of this case in the United States Supreme Court is especially important to Sri Lanka as its government which militarily defeated and annihilated the Tamil Tigers last May eliminating its entire leadership is currently engaged in identifying and capturing LTTE arms procurement agents still at large internationally, and diplomatically endeavors to trap known advocates of a separate Tamil state (Tamil Eelam) in the north and east of Sri Lanka based in the United States and other Western nations on the premise of violating terrorism statutes in those countries. Officials of foreign ministries in those Western nations are receptive to the presentations of the Eelam advocates who highlight genocide against the Tamil minority with a broader agenda of winning ‘self determination of the Tamil people’ meaning a separate independent Eelam state.
The official who is at the helm of the endeavor to crack the international efforts of the western-based pro-Eelam advocates and prevent the building of a ‘Kosovo-Type psychology’ is Sri Lanka’s defense secretary Gotabhaya Rajapaksa the brother of this South Asian nation’s president who was handsomely elected to a second six year term at the January 26 presidential election.
Defense secretary Rajapaksa in a recent interview with the Singapore Straits Times accused the U.S. and Norway of bankrolling his brother’s presidential opponent former army commander Sarath Fonseka’s campaign to which both U.S. and Norway have refuted.
The impediment Sri Lanka faces is if the U.S. Supreme Court decision facilitates the advocating of a separate independent nation and summoning international support for the creation of a ‘Kosovo-type’ psychology on the basis of safeguarding the First Amendment (freedom of speech) right.
The New York immigration lawyer Visuvanathan Rudrakumaran, a Sri Lanka born United States citizen, for more than a decade has been propagating the agenda of Sri Lanka’s Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) a designated Foreign Terrorist Organization (FTO) by the U.S. under several federal laws ratified by the Congress.
Mr. Rudrakumaran, despite Tamil Tiger outfit being designated a FTO, strongly believed that it was a liberation movement to emancipate the minority 12% ethnic Tamils who have been, according to his reasoning, discriminated against by the dominant majority Sinhalese government since the fifties, and therefore has the right to get ‘material support’ which the law defines as a criminal offense under U.S. laws. Rudrakumaran strongly argues that if some of the ‘material supports’ are denied it contravenes the First Amendment right of any U.S. citizen who volunteers to provide such help to an organization that is engaged in a liberation struggle.
Mr. Rudrakumaran argues that the advocacy of ‘self determination of the Tamil people’ or in simple language a separate independent country, is consistent with the First Amendment of the U.S. Constitution which guarantees and safeguards freedom of speech.
The Supreme Court has to review this notion commencing February 23 hearing.
The First Amendment to the United States Constitution is the part of the United States Bill of Rights that expressly prohibits the United States Congress from making laws "respecting an establishment of religion" or that prohibit the free exercise of religion, infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably assemble, or limit the right to petition the government for a redress of grievances.
Rudrakumaran on 22 June 2009 announced the formation of a Provisional Transitional Government of Tamil Eelam a little over a month of the military defeat of the LTTE and the deaths of its almost entire leadership including Prabhakaran.
Rudrakumaran in his media statement announcing the formation of the Provisional Transitional Government refers to the defeat of the LTTE, in his opinion was spear-heading a legitimate campaign of the Tamils to realize their right to self-determination, in this manner:
(Begin Quote) “The legitimate campaign of the Tamils to realize their right to self-determination has been brutally crushed through military aggression, which has been in violation of humanitarian laws and all civilized norms. People all over the world are shocked and deeply saddened by the massacres of Tamils in the Vanni. (End Quote)
He says that the transitional government at this moment was imperative at a time of the “exclusion of its political leaders is achieved’ by the Government of Sri Lanka.
Who are these political leaders being excluded: Obviously Prabhakaran and his top leaders who constituted the supreme leadership of the LTTE which the United States designated a FTO under several federal laws. Here is the full quote:
“We, the people of Tamil Eelam and its Diaspora, therefore, firmly believe that the formation of a Provisional Transnational Government of Tamil Eelam is imperative. It is a well accepted proposition in international law that the legal claim to establish a government in exile arises the more readily when the exclusion of its political leaders is achieved through acts contrary to principles of ius cogens, such as the unlawful use of force, abductions with a view to torture, genocide, war crimes, detention in internment camps or “open prisons,” the rape of women and the kidnapping of children.”
Rudrakumaran, in a widely read article for the benefit of the Tamil Diaspora in North America carried in TamilCanadian web site on July 10, 2006, defended arms procurement of Sri Lanka’s separatist Tamil Tigers saying that since it is a liberation movement it has the right to import arms.
About a month after Rudrakumaran’s ‘advocacy piece’ appeared in TamilCanadian, FBI arrested 13 Sri Lankan ethnic Tamils, domiciled in Canada and the United States, conspiring to acquire sophisticated military hardware for the LTTE, and the FBI said in its 34-page complaint unsealed on August 21, 2006 in US District Court in Brooklyn, New York that its investigations have discovered that the Tamil Tigers wanted radio towers, missile-launchers, AK-47s, night vision goggles- even software to design submarines and warships.
Whether advocating and justifying arms procurement to a movement designated a terrorist organization by the United States government amount to “providing material support” is another question before the U.S. Supreme Court when the ‘advocate’ himself a U.S. citizen who has established deep root connections to the LTTE.
Following the arguments starting February 23 the Supreme Court is called upon to determine whether the “advocacy” by a U.S. citizen promoting the procurement of military hardware for a U.S. designated FTO falls within the jurisdiction of the First Amendment Right of freedom of speech.
Which is why the U.S. Supreme Court review of ‘material support’ commencing February 23 is directly linked to what the Sri Lanka government endeavors to undertake to crack the campaign of the US/Western-based advocates of an independent state in Sri Lanka and prevent the emergence of a ‘Kosovo type psychology’ that could get diplomatic support Mr. Visuvanathan Rudrakumaran and the Company expect to summon.
Sri Lanka has a long way to go to remove the elements that globally contribute to the creation of such a ‘psychology’ despite its domestic annihilation of the Tamil Tigers. A global endeavor to create this ‘Kosovo type psychology’ can contribute to the resurgence of separatism within the borders of Sri Lanka.
Issues such as war crimes, human rights abuses, undermining the rule of law, emergence of authoritarian rule etc, used against Sri Lanka greatly contribute toward the resuscitation of the ‘Eelam concept’ the LTTE leader Prabhakaran failed to achieve.
- Asian Tribune - By Daya Gamage – US National Correspondent Asian Tribune