Holder v. Humanitarian Law Project

On 21 April the US Supreme Court delivered its first ruling on the freedom of speech and association rights in the context of terrorism since Sept. 11 attacks. Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, upheld a federal law banning “material support” to foreign terrorist organizations; that ban holds, the Court said, even when the offerings are not money or weapons, but things such as “expert advise or assistance” or training intended to instruct in international law or appeals to the United Nations.

The facts of the case

The case was brought by several humanitarian groups, led by the non-profit Humanitarian Law Project, which had argued that the law on material support was too vague, hence contrary to the Fifth Amendment, and violated the First Amendment rights to freedom of speech and association. Specifically, the organization wanted to help two groups – the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party – which the US has deemed terrorists, navigate international law and politics with the goal of resolving disputes peacefully. The petitioners claimed that the legislation was invalid in that it would prohibit activities such as training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka. The non-profit project argued that the government must prove someone intends to further a terrorist organization’s illegal goals in order to be convicted of providing “material support”.

The Court’s assessment

Firstly, the Court rejected the petitioners’ claim that the material-support statute would be vague.

Although the statute may not be clear in every application, the dispositive point is that its terms are clear in their application to plaintiffs’ proposed conduct. Most of the activities in which plaintiffs seek to engage readily fall within the scope of “training” and “expert advice or assistance”.

Secondly, the Court held that the material-support statute does not violate the freedom of speech guaranteed by the First Amendment. In this respect, the Court observed that both plaintiffs and the Government had extreme positions on this question. Plaintiffs claimed that Congress has banned their pure political speech: the majority rejected this claim, saying that the statute does not prohibit independent advocacy or membership in the PKK and LTTE. On the other hand, Chief Justice Roberts said the Government had advanced a position that was too extreme and did not take adequate account of the free-speech interests at stake. “The government is wrong,” Roberts wrote, “that the only thing actually at issue in this litigation is conduct” and not speech protected by the First Amendment.

However, the Court went on observing that, in view of the violence of the activities engaged by the organizations at issue, coordination with these organizations may in fact legitimizes and furthers their terrorist means. Moreover,

material support meant to promote peaceable, lawful conduct can be diverted to advance terrorism in multiple ways. The record shows that designated foreign terrorist organizations do not maintain organizational firewalls between social, political, and terrorist operations, or financial firewalls between funds raised for humanitarian activities and those used to carry out terrorist attacks.

Roberts concluded that such efforts violate a law making it a crime to “knowingly provide material support or resources to a foreign terrorist organization” designated by the State Department.
In so doing, the Court said it was not abdicating its role in protecting constitutional freedoms but acknowledging that Congress and the executive branch are better situated that the judiciary to decide what kind of restrictions are needed to keep Americans safe in a post-Sept. 11 world of terrorist threats.

That evaluation of the facts, like Congress’ assessment, is entitled to deference, given the sensitive national security and foreign relations interests at stake. The Court does not defer to the Government’s reading of the First Amendment. But respect for the Government’s factual conclusions is appropriate in light of the courts’ lack of expertise with respect to national security and foreign affairs.

Dissenting opinion

Justice Stephen G. Breyer took the unusual step of summarizing his dissent from the bench. He said the majority  had drawn a false analogy between the two kinds of assistance.

“Money given for a charitable purpose might free up other money used to buy arms,” Justice Breyer said from the bench. But the same cannot be said, he continued, “where teaching human rights law is involved”.

In a nutshell, Justice Breyer proposed a standard that would criminalize this kind of speech or association”only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions”.

Editorial Roundup

The court’s ruling has collected various reactions among scholars and lawyers, although the majority of them are very critical.

David D. Cole, a lawyer for the plaintiffs with the Center for Constitutional Rights, said the court’s rejection of the argument was disappointing. “This decision basically says the First Amendment allows making peacemaking and human rights advocacy a crime”, Mr. Cole said. Cole also noted that in the past, the Supreme Court has ruled that the First Amendment “protected even the right to advocate criminal activity, so long as one’s advocacy was not intended and likely to produce an imminent crime. And it ruled that citizens had a right to associate with a group engaged in both legal and illegal activities, as long as they intended to further only the group’s lawful activities.”

The Court’s decision triggered criticism also from some prominent figures, including former president Jimmy Carter, who said the statute “inhibits the work of human rights and conflict resolution groups”.

The New York Times editorial agrees with the standard proposed by Justice Breyer and invites the Congress to enact it into law. The risk of leaving the issue as it stands is that:

Academic researchers doing field work in conflict zones could be arrested for meeting with terror groups and discussing their research, as could journalists who write about the activities and motivations of these groups, or the journalists’ sources. The FBI has questioned people for a NY Times article about terrorism, and threatened them for providing material support.

The Los Angeles Times editorial defines the ruling as “disregarding the dictionary as well as the Constitution”. According to it, the reading of the statute provided by the Court is unconvincing:

The reading truer to the 1st amendment would be that the advisor knows not only that a group he is dealing with is a terrorist organization but that his involvement will further acts of terrorism.

On a collective commentary by the editors of the New York Times, Richard A. Epstein (University of Chicago Law School) observes that the Court’s ruling in a way misses the key point.

The types of support that are given here could well have an educative effect that will persuade at least some individuals that violence is not an answer, he writes.

Similarly, Stephen I. Vladeck (American University Washington College of Law) reminds that the Supreme Court has previously established that the Constitution prohibits the imposition of guilt by association. In fact, he observes, the material-support statute requires not just association with these groups, but an affirmative act of support. According to Vladeck, in the case at hand:

the majority’s sweeping reading of the statute’s scope blurs that line almost to the point of invisibility. In its view, the material support statute does not impose guilt by association; the defendant had to do something to support the group. But almost anything can be that something.

Diane Marie Amann (Law Professor, University of California, Davis) comments on the balance struck by the Court between national security and constitutional guarantees of individual liberty, and, in particular, on whether a person may freely advocate for political goals, as said by the Court.

That balance depends on the ability of individuals to speak without fear of prosecution for speech that falls outside the confines of the opinion. If the line drawn in fact chills such speech, or if prosecutors choose to press cases outside the stated confines, the attempted accommodation will have proved a failure.

On the other hand, there are also voices in support of the ruling. Andrew C. McCarthy (legal affairs, editor at National Review) observes that
Regardless of good intentions, teaching terrorists how to manipulate the international legal system makes them more efficient, and more deadly. Congress is right to say so, and the court is right to endorse that conclusion.

Similarly, Robert Chesney (University of Texas School of Law) comments the decision in the following:

Efforts to bolster terrorist groups in their “harmless” activities, if successful, enhance the standing, stability, and prestige of such groups – and that in turn enhances their viability, ability to recruit, to raise funds, and so forth. In this respect, the statute functions just like an embargo against a hostile state.


2 Responses

  1. […] opinion piece comments in this way last week Supreme Court’s decision upholding a law banning the provision of “material support” to foreign terrorist […]

  2. […] petition reached the Court just a month after the Justices, in a 6-3 ruling on June 21 (Holder v. Humanitarian Law Project, 08-1498), decided that the federal government may use a law against “material support” of […]

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