McCarthy Redux

By William Fisher

In the wake of yesterday’s Supreme Court decision upholding a law making it a crime to provide any “material support” to an organization designated as a “terrorist” by the U.S. government, former U.S. President Jimmy Carter charged that the law “actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence.”

Carter, whose organization, The Carter Center, filed a “friend of the court” brief in the case, said in a statement, "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.”

He added, “ The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."

Carter joined numerous civil and human rights advocates in attacking the Court’s 6-3 ruling “to criminalize speech” in Holder v. Humanitarian Law Project. It was the first case to challenge the Patriot Act before the highest court in the land, and the first post-9/11 case to pit free speech guarantees against national security claims.

Attorneys say that under the Court’s ruling, many groups and individuals providing peaceful advocacy could be prosecuted, including President Carter for training all parties in fair election practices in Lebanon.

Chief Justice John Roberts wrote for the court’s majority, affirming in part, reversing in part, and remanding the case back to the lower court for review.
Justice Stephen Breyer dissented and read his dissent aloud before his fellow justices – always a sign of an opinion very deeply felt. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The Court held that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Plaintiffs sought to provide assistance and education on human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.

Citing various high court rulings instructing lower courts not to construe a statute “so as to abridge the exercise of right guaranteed under the First Amendment,” Justice Breyer wrote, ”Not even the serious and deadly problem of international terrorism can require automatic forfeiture of First Amendment rights.“

“In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national defense, and that it grants particular authority to the President in matters of foreign affairs,” he wrote.

Originally brought in 1998, the case challenges the constitutionality of laws that make it a crime to provide “material support” to groups the administration has designated as “terrorist.” The plaintiffs in the case sought to engage in speech advocating only nonviolent, lawful ends, but the government took the position that any such speech, including even filing an amicus brief in the U.S. Supreme Court, would be a crime if done in support of a designated “terrorist group.”

The plaintiffs’ lead lawyer, Georgetown Law Center’s David Cole, a widely respected Constitutional scholar, sees the “material support” paradigm of “preemptively weeding out threats to national security, guilt by association” resurrected from the McCarthy era.

He told IPS, “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.”

Cole asserts that support for the lawful activities of a designated group should not be unlawful, and that the not-for-profit sector needs to insist that constitutional rights apply in the war on terror. He is calling for changes in the enabling legislation when Congress returns from its August recess.

“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 says.

The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive.

Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny.

This one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.

One Constitutional authority, law professor Francis Boyle of the University of Illinois law school, told IPS that the SCOTUS decision upheld the government’s position as set out by the Solicitor General, Elena Kagan, who has been nominated by President Barack Obama to be the next associate justice of the Supreme Court.

Boyle said that Kagan “argued this case as Solicitor General and maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organization would be violating the material support statute and thus risk criminal prosecution. The Supreme Court did not reach that hypothetical issue, but did uphold the statute. According to this decision, the advocacy of international law, human rights, and the peaceful settlement of international disputes can be criminalized.”

Boyle said Kagan's arguments in this case “demonstrate emphatically why she must not be confirmed for the US Supreme Court. She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the Bush administration with the USA Patriot Act.”

The American Civil Liberties Union (ACLU) said the Court’s ruling “thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups.”

Under the law, individuals face up to 15 years in prison for providing "material support" to foreign terrorist organizations (FTOs), even if their work is intended to promote peaceful, lawful objectives. "Material support" is defined to include any "service," "training," "expert advice or assistance" or "personnel."