by Gene Howington, Gust Blogger

As previously discussed in the column “Fantastic Plastic?“, the advent of cheap 3-D printing (or additive manufacturing) is changing the nature of how we can manufacture anything including guns. At the time the original column was written, a pioneer in additive manufacturing of guns – Defense Distributed of Austin, Texas – was making headlines for using this technology to make lower receivers for AR-15 style assault rifles. Although in the proof of concept stage, Defense Distributed had rapidly shown that they could make such a component capable of firing over 600 rounds before stress failure. I speculated that such a weapon was not as threatening due to size and some materials constraints and that even more dangerous was the possibility of all (or nearly all) plastic handguns and other easily concealable weapons that escape normal detection techniques.

In this instance, we have a case of science rapidly catching up with speculation.  Last week Defense Distributed released the following video of their plastic handgun design.  The only metal component of the weapon is the firing pin. It is called (rather dramatically) the Liberator.

In a move that is not entirely unexpected as self-described crypto-anarchist Cody R. Wilson and his company Defense Distributed continue to push both the boundaries of the technology as well as gun laws, the government took action. It is no secret that escalation often begets escalation. Is this the first salvo by the government in their dealings with Cody Wilson and Defense Distributed?

Through the Department of Defense Trade Controls Office, the government demanded that the design for the Liberator – the CAD file – be removed from Defense Distributed’s website. This is based on the likely correct presumption that providing such a design violates U.S. export control policies.  However, this removal came only after almost 100,000 copies of the file had already been downloaded.

That saying about horses and barn door closings comes to mind.

However, the removal does comport with the stated aims of our export control system. The state goals of our export control system are:

• Provide for national security by limiting access to the most sensitive U.S. technology and weapons
• Promote regional stability
• Take into account human rights considerations
• Prevent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism
• Comply with international commitments, i.e. nonproliferation regimes and UN Security Council sanctions and UNSC resolution 1540

Clearly the Department of Defense Trade Controls Office is relying upon the “[p]revent proliferation of weapons and technologies, including of weapons of mass destruction, to problem end-users and supporters of international terrorism” rationale. It’s a rationale that I think no sane individual would argue against as a policy matter. The penalties for violating export restrictions alone is pretty robust:

The U.S. government has built in various enforcement mechanisms to ensure compliance with our export control laws. U.S. Customs officials (now part of the Department of Homeland Security) have the authority to check any export or import against its license at the borders. For dual-use items, Department of Commerce officials also investigate violations. Licensing authorities often require pre-license checks and post-shipment verifications.

Criminal and civil penalties for export control violations can be severe. For munitions export control violations, the statute authorizes a maximum criminal penalty of $1 million per violation and, for an individual person, up to 10 years imprisonment. In addition, munitions violations can result in the imposition of a maximum civil fine of $500,000 per violation of the ITAR, as well as debarment from exporting defense articles or services. For dual-use export control violations, criminal penalties can reach a maximum of $500,000 per violation and, for an individual person, up to 10 years imprisonment. Dual-use violations can also be subject to civil fines up to $12,000 per violation, as well as denial of export privileges. It should be noted that in many enforcement cases, both criminal and civil penalties are imposed.

However, running afoul of trade restrictions is not the only potential legal pitfall for Defense Distributed. Consider that what they published was a digital document containing design specification for a gun that is for all practical purposed undetectable by traditional means. The only design benefit of such a weapon over traditional handguns is as either an assassination weapon or for use against a protected facility (a covert attack). But is an export control really ever going to be effective against such digital information? As previously noted, many hundreds of thousands of copies of the file were downloaded before the ban was put in place. Because it is a digital media, it is easily copyable and redistributed by networked or other means. Does this put Defense Distributed at risk for prosecution under export trade laws?  The barn door was closed after the horses left after all. I think the answer is “possibly”, but I don’t think that is the most interesting legal question though.

The more interesting questions are found in considering Defense Distributed’s actions, the nature of digital media, existing law (namely the Patriot Act) and future acts deemed “terrorism”.  Under 18 U.S.C. § 2339B (part of the Patriot Act), it is illegal to “knowingly [provide] material support or resources to a foreign terrorist organization, or attempts or conspires to do so”. What is interesting is how “material support” has been defined by case law since the enactment of the Patriot Act. Consider the case of Holder v. Humanitarian Law Project. In that case, the Supreme Court considered the challenge of the definition of “material support” by the Humanitarian Law Project, a groups seeking to teach peaceful dispute resolution to groups like Kurdistan Workers’ Party in Turkey and the Liberation Tigers of Tamil Eelam, groups which have been on U.S. lists of terrorist organizations maintained by the State Department for years. To understand the risks facing Defense Distributed, it is necessary to understand the reasoning behind Holder v. Humanitarian Law Project, the low and/or incorrect threshold it represents as well as other criticisms of the holding and actions taken post-decision.

The Humanitarian Law Project brought suit claiming that the language of 18 U.S.C. § 2339B was vague, violated the 5th Amendment, and that it infringes upon the 1st Amendment guarantees of freedom of speech and free association. The relevant part of 18 U.S.C. § 2339B reads:

(1) Unlawful conduct. – Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).” 18 U.S.C. § 2339B(a)(1).

In most part relying upon these definitions of what constitutes unlawful conduct, the Court found that the type of aid intended did fit into the law’s definition of material aid and in part that it hinged upon the “knowingly” requirement as the organizations the Humanitarian Law Project sought to aid were already identified terrorist organizations.  The finding was based on the principle that any assistance could help to “legitimize” the terrorist organizations and free up their resources for terrorist activities. The Court did note, however, that the actions of the Humanitarian Law Project were hypothetical and did not preclude post-enforcement challenges in the future.

The case of Holder v. Humanitarian Law Project marks the only time in the jurisprudence surrounding the 1st Amendment that a restriction of political free speech has passed the test set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). To those not familiar with the Brandenburg decision, it created a two-fold test for examining whether political free speech is protected or not:  Speech advocating the use of force or crime could only be proscribed if (1) the advocacy is “directed to inciting or producing imminent lawless action” and (2) the advocacy is also “likely to incite or produce such action.”

The decision was met with much criticism. Former President Jimmy Carter as head of the Carter Center criticized the decision.  He argued that “”We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The ‘material support law’ – which is aimed at putting an end to terrorism – actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.” In the same press release, Melissa Goodman, staff attorney with the ACLU National Security Project said, “Today’s decision is disappointing and inconsistent with our First Amendment position. The government should not be in the business of criminalizing speech meant to promote peace and human rights.”

Perhaps most damning and to the logical point are the words of Elisabeth Decrey-Warner, president of the Swiss NGO Geneva Call, in stating the obvious flaw with this decision in that “Civilians caught in the middle of conflicts and hoping for peace will suffer from this decision. How can you start peace talks or negotiations if you don’t have the right to speak to both parties?”

Along these same lines, linguist Noam Chomsky criticized the decision in an interview with Democracy Now!’s Amy Goodman, saying “A very important case was six or eight months ago, I guess, Holder v. Humanitarian Law Project. It was initiated by the Obama administration. It was argued by Elena Kagan, Obama’s new court appointment. And they won, with the support of the far-right justices. The case is extremely significant. It’s the worst attack on freedom of speech since the Smith Act 70 years ago. The case determined that any material support to organizations that the government lists on the terrorist list is criminalized, but they interpreted ‘material support’—in fact, the issue at stake was speech. Humanitarian Law Project was giving advice—speech—to a group on that’s on the terrorist list, Turkish PKK. And they were also advising them on legal advice and also advising them to move towards nonviolence. That means if you and I, let’s say, talk to Hamas leaders and say, ‘Look, you ought to move towards nonviolent resistance,’ we’re giving material support to a group on the terrorist list.”

This shows the strained logic of the Court clearly in the Holder v. Humanitarian Law Project case. However, like the much and rightfully lamented Citizens United decision, it remains controlling precedent until overruled or legislatively amended.

In January 2011, David Cole, a professor of law at Georgetown University Law Center, who argued the case for the Humanitarian Law Project, wrote a particularly damning Op-Ed piece for the New York Times commenting on developments since the decision and stated that “Under current law, it seems, the right to make profits is more sacrosanct than the right to petition for peace, and the need to placate American businesses more compelling than the need to provide food and shelter to earthquake victims and war refugees.” I strongly suggest reading Cole’s Op-Ed piece in its entirety.

Now reconsider the actions of Defense Distributed.

Contrast the actions of Defense Distributed in sharing information to the actions of the Humanitarian Law Project. Too be clear, we are not discussing the physical material support here, but rather the provision of expert advice or assistance. It becomes apparent that distribution of weapons designs is even more in line with the definition of “material support” if you consider that what is arguably free speech in advocating peaceful dispute resolution is sufficient to meet the definition of “material support”.

When (and it is probably a matter of when, not if) a plastic handgun made on these designs is used in an assassination or other crime deemed to be “terrorism”, will the government choose to go after Defense Distributed under the Patriot Act for their “material support” of “terrorism”? It seems like a real possibility.

Will Defense Distributed be able to hinge their defense on not knowingly providing information to problem end-users and supporters of international terrorism when their actions were not directed per se but simply the equivalent of releasing the information “into the wild”?

If giving away design data for a weapon whose fairly described design advantage is covert action and assassination the equivalent of advocacy that is “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action”?

It seems to me that Defense Distributed could be walking into a fight much more substantive and more more dangerous than simply championing the 2nd Amendment.

What do you think?

Source(s): Huffington Post (1, 2), YouTube, www.state.gov, Defense Distributed, 18 U.S.C. § 2339B, Holder v. Humanitarian Law Project, 561 U.S. ___ (2010), 130 S.Ct. 2705 (.pdf), Brandenburg v. Ohio, 395 U.S. 444 (1969), Wikipedia, New York Times (1, 2), ACLU (Supreme Court Rules “Material Support” Law Can Stand), www.swisster.ch (Ed. Note: you may have issues getting this URL to resolve.)

~submitted by Gene Howington, Guest Blogger