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Genesee Valley Chapter — Humanitarians v. Terrorists

Humanitarians v. Terrorists

By Scott Forsyth A version of this article appeared in the ‘Daily Record’ on July 7, 2010. “Knowingly provid[ing] material support or resources to a foreign terrorist organization” is a federal crime. 18 U.S.C. § 2339B(a)(1). Congress enacted the prohibition in 1996. Since then, the crime has been a major tool in the government’s fight against terrorism within the country —150 indictments since 9/11. The Lackawanna Six all pleaded guilty to it, to avoid being tagged enemy combatants. On June 21, the U.S. Supreme Court addressed for the first time the constitutionality of the material support statute and upheld it, capping a 12-year lawsuit. Holder v. Humanitarian Law Project, No. 08-1498 (2010). Some conservative commentators have declared the decision a “smashing victory” for the government and the triumph of common sense over legal sophistry. They overstate the scope of the decision to make a political point. Here is why. The plaintiffs were individuals and groups wanting to assist the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam. In 1997, the Secretary of State designated both as foreign terrorist organizations for their violent activities in Turkey and Sri Lanka respectively. Both organizations also engage in political and humanitarian activities. The plaintiffs wanted to promote those peaceful activities. For example, training members how to use international law to resolve disputes peacefully and petitioning the United Nations for relief. They could not do so out of the fear of prosecution under the material support statute. The plaintiffs’ claim was in two parts. The statute was too vague, in violation of the Due Process Clause. If the statute was not too vague and it applied to them, it violated their Free Speech rights. The statute is very broad. Material support or resources means any “property … or service” including, among other items, “training,” “expert advice or assistance” and “personnel.” In the course of the litigation, Congress amended the statute several times. A violator must know the government has designated as terrorist an organization receiving support. Training consists of “instruction or teaching designed to impart a specific skill as opposed to general knowledge.” Expert advice is advice “derived from scientific, technical or other specialized knowledge.” 18 U.S.C. § 2339A(b). Ultimately, the amendments proved timely. A criminal statute is vague if it does not “provide a person of ordinary intelligence fair notice of what is prohibited.” U.S. v. Williams, 553 U.S. 285, 304 (2008). Classic examples of vagueness are the terms “annoying” and “indecent,” which require “wholly subjective judgments” by government officials about what behavior should be prosecuted. Such is not the case with the terms “training” and “expert advice,” as applied to the proposed conduct of the plaintiffs. They would be drawing on their legal and institutional expertise to impart specific lobbying skills to the two organizations. Nothing in the statute prevents the plaintiffs from independently advocating for the organizations or for their causes, the creation of separate states for the Kurds and the Tamils. Other persons may have a valid complaint about the vagueness of the statute’s language as applied to them. The plaintiffs cannot invoke their complaint to strike down the statute when the statute clearly prohibits the plaintiffs’ proposed conduct, however. The Court agreed with the plaintiffs that the statute does prohibit pure speech, not just conduct, such as the training on how to lobby. Consequently, to withstand a Free Speech challenge, the portion of the statute prohibiting speech must pass the strict scrutiny test. Unfortunately, the Court did not engage in the rigorous analysis called for by the test. Instead, it observed that “the statute is carefully drawn to cover only a narrow category of speech,” namely communications “to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.” Furthermore, the government has an “urgent objective of the highest order” in combating terrorism. The plaintiffs argued that this objective did not justify an abridgement of speech to promote the peaceful activities of terrorist organizations. The Court held otherwise. The Court deferred to Congress and the executive, both of which found that “any contribution” to a terrorist organization “facilitates their criminal conduct.” Working peacefully with a terrorist organization lends it legitimacy and furthers its terrorist means. Outside help also enables the organization to divert resources to other, deadly activities. Again, the Court limited its First Amendment holding to the plaintiff’s proposed conduct, therefore there may be future applications of the statute to pure speech that will not survive scrutiny. The Court noted in particular the troubling intersection of the statute and independent advocacy that has the effect of benefitting a terrorist organization. Given the government’s zeal for prosecuting persons under the material support statute, we will probably see a fact-situation that touches the intersection sooner rather than later.  

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