As Israel grapples with the devastation of October 7 inflicted by Hamas and others, and as Palestinians grapple with the devastating response by Israel, at least one thing seems certain: the public needs a deeper understanding of the motivations and goals of the prominent actors in the region to productively debate and engage with the conflict. To our surprise and disappointment, however, the Biden administration has taken the position that facilitating conversations between Americans and some of those prominent actors—namely, those who are “designated” under the government’s sanctions regimes—is a violation of federal law. The administration’s position is misguided and unconstitutional. Talking to “the enemy” shouldn’t be illegal.
Time and again, we have witnessed conflict break out and peace processes break down due to a lack of understanding of the complex political dynamics at play. As former head of British Intelligence, David Omand, put it, identifying a path toward peace requires making the “effort at getting into the shoes of those making war”—not in order to agree with them, but to truly understand their positions and the path forward.
This principle is what drives our organization, the Foundation for Global Political Exchange. We organize political discussions across the Middle East and North Africa designed to bring together diplomats, researchers, and journalists from around the world to think critically about the politics of the countries in the region. At these convenings, participants meet and engage with dozens of speakers from across a particular country’s political spectrum, including members of parliament and leaders of political parties. We encourage participants not just to listen to these speakers, but to rigorously question them. We believe it is vital to engage with not only the players with whom you agree, but also with those with whom you disagree, even vehemently. This is true even when those actors belong to groups like Hamas and Hezbollah, which hold significant political position and influence in the region.
Unfortunately, the Biden administration has roundly rejected this basic principle. Last year, as we were planning our annual convening of political conversations in Lebanon, we asked the Treasury Department to confirm that we could include—among the thirty total speakers—five political leaders in Lebanon who are either “designated” under U.S. sanctions laws, or who are members of an organization that is designated. (Two are members of Hezbollah, including a member of Lebanon’s parliament; two are members of parliament who the U.S. government has designated based on political corruption or violations of the rule of law in Lebanon; and one is a member of Hamas.) Treasury refused to allow us to include them, because, in its view, arranging political dialogues with designated individuals would violate the law by providing “a platform for them to speak.”
This sweeping decision would subject us to civil and even criminal liability merely for organizing political conversations. That is why we’ve joined with the Knight First Amendment Institute at Columbia University to file a federal lawsuit challenging the government’s interpretation of the law.
Treasury’s interpretation of U.S. sanctions law is a far-reaching abridgment of free speech. Not since the days of McCarthyism has the government come this close to asserting a need to foreclose political dialogue in the name of national security. And even in that era, the concern was not primarily with political discourse but with membership in the Communist Party, which the government claimed would lend support to the group’s aim of overthrowing the U.S. government by force. Since the 1960s, however, the Supreme Court has consistently rejected these kinds of efforts to isolate disfavored organizations, holding that the government may prohibit only speech that is specifically intended and likely to further such an organization’s unlawful aims. The Supreme Court’s 2010 decision in Holder v. Humanitarian Law Project went a step further by allowing the government to prohibit Americans from providing expert advice and training in non-violent dispute resolution to designated terrorists. But even that decision—which was widely criticized by First Amendment scholars and advocates—did not go as far as Treasury has gone in deciding that it is unlawful to organize political dialogue with designated individuals. In our case, the government has prohibited pure political speech, independently organized by a U.S. foundation devoted to fostering understanding—not any service performed at the direction of, or for the benefit of, a designated individual or group.
If Treasury’s interpretation of its regulations is allowed to stand, it will have enormous consequences for public discourse. If it is illegal for us to organize conversations with “the enemy,” then it is impossible to facilitate the vibrant political discourse necessary for genuine understanding and for enabling the peacemakers of tomorrow. A political scientist who interviews members of an authoritarian regime or a news organization that publishes an editorial by a warlord or terrorist could find themselves in the crosshairs of federal prosecutors. Whether or not you trust the current administration with this power, there is no guarantee that a future administration won’t abuse it.
Congress itself has recognized the national imperative of protecting the free flow of ideas across borders. In 1977, it tried to prevent the government from abusing its authority to, in Congress’s words, “isolate the people of the United States from the people of any other country.” As Congress later elaborated, “engaging in educational, cultural and other exchanges with persons from around the world” can “significantly promote the foreign policy objectives of encouraging democracy and human rights abroad, and improving understanding of and goodwill toward the United States abroad.”
As our case demonstrates, though, it is vital that we now secure strong judicial guardrails against the executive branch’s grave overreach. Americans have a right to engage with people and ideas that the government dislikes.