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Supreme Court upholds law criminalizing material support for terror organizations

By Dwyer Arce

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 6-3 in Holder v. Humanitarian Law Project [Cornell LII backgrounder] that a federal law criminalizing providing material support for groups designated as terrorist organizations is constitutional. The court rejected plaintiffs' argument that the case should be decided on statutory grounds before ever reaching constitutional issues, finding that the federal law [18 USC § 2339B(a)(1) text] cannot be interpreted to require proof that a defendant intended to further the illegal activities of an organization. In ruling on the constitutionality of the statute, the court held that it did not violate plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment [Cornell LII backgrounders]. In support of the Fifth Amendment argument, the plaintiffs had alleged that the statute's prohibition of particular types of material support, such as training and expert advice, was unconstitutionally vague. In rejecting this, the court found that the terms of the list were not like terms that had been struck down previously by the court for having subjective and ambiguous meanings. In rejecting the plaintiffs' First Amendment claims, the court found that the statute did not criminalize the mere association with groups designated as terrorist organizations, and that even though in some instances the law interfered with free speech, this was "carefully drawn" to cover "an urgent objective of the highest order," the combating of terrorism. In remanding the case and partially reversing the decision [text, PDF; JURIST report] of the US Court of Appeals for the Ninth Circuit, Chief Justice John Roberts explained:

The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to "provide for the common defence." As Madison explained, "[s]ecurity against foreign danger is ... an avowed and essential object of the American Union." We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.

Justice Stephen Breyer filed a dissenting opinion in which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined. In his dissent, Breyer agreed with the majority that the statute was not unconstitutionally vague, but disagreed with the court on the free speech claims, stating:

In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in [the training of organizations to use nonviolent means to achieve their goals]. We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies.

In reacting to the decision, the Constitution Project [advocacy website] stated that it was "dismayed" [press release] by the decision, which it said would allow prosecution for "constitutionally protected ... speech and association activities."

The plaintiffs in the case initially filed suit in 1998, claiming that they wanted to provide support for the humanitarian and political activities of the Liberation Tigers of Tamil Eelam and the Kurdistan Workers' Party [GlobalSecurity backgrounders], two organizations that were designated as terrorist organizations by the Secretary of State pursuant to federal statute in 1997. In November, the Constitution Project, the American Civil Liberties Union, (ACLU), and the Rutherford Institute [advocacy websites] filed amicus curiae briefs [JURIST report] supporting a Humanitarian Law Project (HLP) [advocacy website] argument that the law defines "material support" too broadly. The Supreme Court heard oral arguments [transcript, PDF; JURIST report] in the case in February, and granted certiorari [JURIST report] in September.

Full post as published by JURIST - The Paper Chase on June 21, 2010 (boomark / email).