In July 2010, in Holder v. Humanitarian Law Project, the U.S. Supreme Court ruled that the First Amendment does not protect groups or individuals who provide “expert advice or assistance” or “training” to proscribed terrorist groups, even when they do so to further peacebuilding efforts.
This means that “any service that can be construed as having tangible or intangible monetary value—such as providing advice, reviewing a contract, covering transportation costs—can be considered a violation of U.S. material support statutes.” The ruling makes it illegal to convene meetings or conferences for a proscribed group or to act as a negotiator on its behalf.
The Holder decision has had an impact not only on the work of U.S. and international nongovernmental organizations, but also on Somali organizations. Some Muslim agencies, fearful of being added to the terrorist list, have had to assume different identities. The business community was paralyzed by the American decision to label certain businesses as terrorist groups. Orphanages could no longer receive food when Al-Harman’s assets were frozen, and many turned to other resource-stretched Somali organizations for help.
HOW TO HELP IN SOMALIA
Since the 1990s, the U.S. Agency for International Development (USAID) has grappled with how to provide development aid in a country without a government structure. According to its Somalia programs web page, USAID “responds to Somalia’s key challenges by supporting peace-building and national reconciliation initiatives, building the capacity of governance institutions and civil society groups, improving the delivery of social services, and meeting humanitarian and early recovery needs.” The agency has been impeded, however, by a dearth of contacts with Somali civil society. It has faced problems identifying and working through alternative sources of social and political authority.
Eliminating barriers to working with groups on the list would enable the U.S. government to better identify civil society interlocutors.
Effective peacebuilding requires knowledge of how parties to a conflict understand their roles and how they envision peace. Lack of understanding can lead to misguided direction of resources. According to a recent policy brief from Accord, the African Centre for the Constructive Resolution of Disputes, “inappropriate international engagement based on inadequate analysis has helped to mobilize militants” in Somalia. Eliminating barriers to working with groups on the Foreign Terrorist Organization (FTO) list would enable USAID and its partners to better identify civil society interlocutors. It would allow U.S. officials to assess the role and Somali perceptions of al-Shabaab and provide more focused support for peacebuilding and reconciliation initiatives.
THE FREEDOM TO ENGAGE
To realize the full potential of a strategic peacebuilding approach, U.S. government officials and NGO representatives need the freedom to engage in dialogue with all parties to the conflict—including those designated as terrorist organizations. The International Crisis Group has called for efforts to reach out to those elements of al-Shabaab that are open to some form of political settlement. Limited engagement strategies that exclude al-Shabaab will not help to pacify Somalia, according to the Crisis Group.
The United States should take steps to demilitarize its policy in favor of civilian-led diplomacy and peacebuilding in partnership with Somali civil society organizations. Congress could facilitate this process by amending material support and terrorist listing laws, including the U.S. Antiterrorism and Effective Death Penalty Act of 1996, which gave the executive branch the authority to create the FTO list.
The Office of Foreign Asset Controls could be directed to “proactively open a direct channel to peacebuilding groups, while concurrently expediting specific requests” for waivers to engage with FTOs. These steps would enable U.S., international, and Somali NGOs to pursue more effective and inclusive diplomacy, development, and peacebuilding strategies.
An alternative framework in Somalia focuses on human-centered, relationship-driven engagement that begins to address cycles of violence.
Adherence to a ‘war on terror’ framework has been an obstacle to constructive social change. An alternative framework that focuses on human-centered, relationship-driven, respectful engagement could begin to facilitate a gradual shift in U.S. policy toward effectively addressing cycles of violence in Somalia.
When the practices of governments and international institutions are informed by local experience and perspective, this can lead to greater civil society participation in the development of economic opportunities and responsive governance, thereby engendering more ownership in creating sustainable peace.
Laura Weis is a Ph.D. student in history and peace studies at the University of Notre Dame. This post is adapted from her article in the new report “Somalia: Creating Space for Fresh Approaches to Peacebuilding.” (pdf)
 Gross, Joshua, “No More Tea with Terrorists,” InterAction: Monday Developments Magazine, (28:10) (October 2010), 18-20.
 USAID, Sub-Saharan Africa, Countries and Regional Programs, Somalia page: http://www.usaid.gov/locations/sub-saharan_africa/countries/somalia/index.html. Accessed October 29, 2011.
 “Whose peace is it anyway? Connecting Somali and international peacebuilding,” Accord Policy Brief, 2010. Available online at: http://www.c-r.org/our-work/accord/somalia/policy-brief.php. Accessed October 29, 2011.
 “Somalia’s Divided Islamists,” International Crisis Group, Africa Briefing No. 74, May 18, 2010, 17.
 Gross, Joshua, “No More Tea with Terrorists,” InterAction: Monday Developments Magazine, (28:10) (October 2010), 34.