Legal Commentary

Supreme Court Upholds Material Support of Terrorism Law

By Jeralyn

In an opinion written by Chief Justice John Roberts, the Supreme Court today upheld the constitutionality of the material support to terrorism statute. The opinion in Holder v. Humanitarian Law Project is here.

According to the opinion, the plaintiffs were challenging specific provisions, including:

....material support—“training,” “expert advice or assistance,” “service,” and “personnel”—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including 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.

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The Court ruled:

The material-support statute, §2339B, is constitutional as applied to the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations.

Justice Breyer, joined by Sotomayor and Ginsberg, filed a dissenting opinion.

Like the Court, and substantially for the reasons it gives, I do not think this statute is unconstitutionally vague. But I cannot agree with the Court’s conclusion that the Constitution permits the Government to prose-cute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives. In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government’s compelling interest in combating terrorism. And I would interpret the statute as normally placing activity of this kind outside its scope.

Full post as published by TalkLeft on June 21, 2010 (boomark / email).