Legal Commentary

Keeping the Nation Safe, or Making Citizens Vulnerable? The Dangers of Vagueness in Anti-terrorism Laws

By Harvey Silverglate

Second installment of a five-part series on Silverglate?s book, Three Felonies a Day: How the Feds Target the Innocent.

Sami Omar al-Hussayen was a doctoral candidate at the University of Idaho when he was arrested in February 2003. Federal prosecutors alleged that al-Hussayen, a Saudi citizen studying computer science in the United States, provided ?material support? and rendered ?expert advice or assistance? to terrorists. News reports, on the word of anonymous ?federal criminal justice? sources, linked him to Osama bin Laden.

What was his crime? Al-Hussayen used his computer skills to run a number of websites for a Muslim charity dedicated to traditional religious teaching. But if a web-surfer burrowed into links from al-Hussayen?s site, he or she would eventually come across links containing violent anti-American messages. This, prosecutors charged (PDF), was how al-Hussayen aided global terrorism.

District Judge Edward J. Lodge, for one, played the case right down the middle. In his jury instructions, Lodge explained to twelve stalwart Idahoans that the First Amendment protects advocacy, even advocacy to break the law, ?unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.? (Brandenburg v. Ohio, 395 U.S. 444, 1969) Of course, it was doubtful that al-Hussayen was even advocating lawlessness, much less violence, but for the sake of argument, let?s assume that there was such a subtext to his website maintenance. Even then, the prosecution was highly dubious.

With Judge Lodge?s clear line separating lawful political speech from unlawful incitement to imminent violence, the jury took little time in acquitting the grad student of the terrorism-related charges. Liberty, which seemed to matter less and less at Main Justice in Washington, remained alive and well in Idaho. (This was due not only to a law-abiding judge presiding over the trial, but also to the fact that the defendant was able to hire and pay competent defense counsel.)

Nonetheless, this case, reportedly the first prosecution brought under the USA Patriot Act?s expanded material support provision, did little to clarify the ?expert advice or assistance? aspect of the federal terrorism laws. There are, in fact, three separate federal statutes that criminalize such material support, and Georgetown Law Professor David Cole provides an interesting analysis of these overlapping provisions, here. For present purposes, material support will refer to 18 U.S.C. 2339B.

Yet the mere fact that there are three separate provisions for essentially the same violation?and all are characterized by vague and dangerously subjective wording?illustrates the general opacity of the federal criminal code. (And, rest assured, incitement to violence could likely be squeezed into yet another statute by a creative federal prosecutor). With similarly vague statutes criminalizing a wide array of seemingly benign activity, the average citizen, even without touching the apparently volatile arena of Muslim charities, can commit several arguable felonies in the course of a day. Thus, the thesis and title of my book, Three Felonies a Day: How the Feds Target the Innocent.  (I provided an introduction to the topic on Monday.)

To be sure, there are countless federal crimes that an average citizen can inadvertently violate. But I?d like to focus today on the vague laws governing terrorism and terrorist organizations. These laws, and those prosecuted under them, provide a timely window into how loosely-worded statutes enable the government to prosecute virtually anyone.

Consider, first, the semantic power of ?terrorism.?

The Animal Enterprise Protection Act, passed by Congress in 1992, outlawed the ?physical disruption? of an animal farm or testing facility. But with animal-rights activists continually ramping up their protests, medical facilities and some researchers looked to toughen criminal sanctions. In November 2006, Congress responded with the Animal Enterprise Terrorism Act, which expanded the scope of criminal sanctions for any activist who ?intentionally damages or causes the loss of any real or personal property?used by an animal enterprise.?

How does one define ?real or personal property?? Is it limited to monetary losses, or can this include the loss of future profits? The statutory language is unclear, and case law indicates that loss of profits and business goodwill can be considered property damage (See, e.g., Radiation Sterilizers v. United States, E.D. Wash., 1994).

It?s an important distinction for animal-rights activists; after all, threatening future profit is arguably the point of lawful protest (expose alleged wrongdoing and, in turn, encourage a boycott by others). Nonetheless, the law threatens to impede such political expression, not only through actual prosecution, but also through the ?chilling effect? of those who severely restrain themselves in order to avoid a possible federal criminal indictment?because they don?t know their legal obligations until it?s too late.

A similar legal ambiguity led to the court challenge of the aforesaid ?material support? language. In a case that will be argued before the Supreme Court this coming term (Holder v. Humanitarian Law Project), six groups and two individuals are seeking clarity on whether they are permitted to assist in the nonviolent, legal activities of groups classified by the U.S. government as terrorist.

The Kurdistan Workers? Party and the Liberation Tigers of Tamil Eelam are considered terrorist organizations by the U.S. government, although plaintiffs insist that both groups engage in a broad range of lawful activity. Due to the vague terminology in Patriot Act provisions (?service,? ?training,? or ?expert advice or assistance,? to name a few), plaintiffs claim that even innocuous conduct such as ?teach[ing] such an organization human rights advocacy or English? could be considered material support. With indictments like al-Hussayen?s showing the elasticity of ?expert advice? in the government?s lexicon, there?s little wonder that these groups are seeking guidance.

The intensity of the friend-of-the-court (amicus) briefs is an indication, perhaps, of the far-reaching fear instilled by such statutory language. Wrote the ACLU (PDF):

Amici, like plaintiffs, are left hopelessly guessing ? at the risk of grave penalty ? whether their advocacy for peace or human rights, their engagement in or facilitation of peace-making dialogue, or the expressive components of their humanitarian aid work crosses the line from constitutionally protected to criminally proscribed.

The bi-partisan nature of the problem?demonstrated by the fact that what is now the ?Holder? case began as Humanitarian Law Project v. Reno and then was re-named through every administration to the present day?explains the need for a non-partisan response. Starting with Clinton Attorney General Janet Reno, this case has been litigated through the Ashcroft/Gonzales/Mukasey years of the Bush administration, and it continues with current AG Eric Holder. Plus ça change, as the French say, plus c?est la même chose.

When these lines are left vague, the feds are given strong tools to target extremists. But they?re also free to target any other victim of their choosing, which they seem to do with disturbing regularity. And while the current political climate has put the issue of laws related to terrorism in the spotlight, similarly vague statutes exist throughout the federal criminal code, exposing all of civil society. It?s time to recognize that the bell tolls for us all.

Full post as published by The Volokh Conspiracy on December 15, 2009 (boomark / email).