By William Fisher
Next week the Supreme Court will consider one of the most consequential cases to arise from the “global war on terrorism.”
The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.
The Supreme Court case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.” It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list. The hearing is scheduled for Tuesday (March 23).
The plaintiffs, represented by the Center for Constitutional Rights (CCR), a legal advocacy group, charges that the law goes too far in criminalizing speech, including prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.” The law currently deems it a crime speak within these issues, even if the speech is totally peaceful and nonviolent.
Lower courts have ruled several provisions of the statute “unconstitutionally vague” because they involve free speech and leave citizens to speculate about their meaning.
David Cole, a professor at the Georgetown University Law Center, who is a CCR Cooperating Attorney on this case, says, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute. After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities. However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision, of which the administration is seeking review, is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The material-support ban, which imposes heavy criminal penalties on those who violate it, has been used by the government in dozens of cases. More than 150 defendants have been charged under the statute since 2001.There have been approximately 75 convictions.
Before the high court, Cole will be representing the Humanitarian Law Project (HLP) and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization.
"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."
The U.S. Government’s Solicitor General, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute's requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns." The challenged terms, such as "training," her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."
The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole's clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.
Attorney Cole, a widely respected Constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies. He told IPS, “With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government,” he said, adding:
“With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts.”
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act provision draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb. We think the Constitution demands that the law recognize the difference between furthering human rights and furthering violence,” he said.
The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey. He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.
Over the years, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the U.S. 9th Circuit Court of Appeals declared parts of the anti-terrorism law vague and unconstitutional. However, the Obama administration appealed to the Supreme Court, arguing that these rulings undercut "a vital part of the nation's effort to fight international terrorism."
In 1996, Congress expanded the anti-terrorism law, imposing a prison term of up to 15years for providing "training" or "expert advice or assistance" to a designated international terrorist group. The ban on supporting terrorists forbids sending not only money, weapons and fighters, but also charitable funds. Government lawyers say it even forbids filing a legal brief or writing an op-ed essay on behalf of a designated terrorist group.