On June 21, 2010, a divided U.S. Supreme Court upheld a federal statute that bans support to designated terrorist organizations, even when that support involves using international law to resolve disputes through nonviolent means. In Holder v. Humanitarian Law Project (HLP), the court ruled 6-3 that U.S. organizations and citizens teaching nonviolent methods of conflict resolution toward sanctioned terrorist groups could face criminal charges. David Cole, an attorney representing HLP and others in the case said, “We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists.”
In June 2009 the Department of Justice (DOJ) had asked the court to consider a ruling of Ninth Circuit Court of Appeals that invalidated the definitions of training, expert advice or assistance derived from specialized knowledge and service are unconstitutionally vague. The Ninth Circuit upheld the definitions of personnel and expert advice or assistance derived from scientific of technical knowledge. HLP opposed Supreme Court review, but also filed a cross petition asking that the court consider all contested terms if it accepts that case. In September 2009 the Supreme Court announcement granted that request and consolidated the cases.
On Tuesday, Feb. 23, 2010 the Supreme Court heard oral arguments to determine whether several key terms in the definition of prohibited material support of terrorism violate the First and Fifth amendments. The case marked the first ever challenge to the Patriot Act at the Supreme Court level and addressed the overbroad scope of the prohibition on “material support” to listed terrorist organizations, which effectively criminalizes peacebuilding programs of U.S. organizations in conflict zones around the world.
Plaintiffs are comprised of six organizations, a retired federal administrative law judge, and a surgeon. They filed suit in 1998 when they wished to provide human rights and conflict resolution training to the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both designated foreign terrorist organizations by the U.S. HLP postponed the training pending the outcome of the case, fearing criminal prosecution. Represented by the Center for Constitutional Rights (CCR), HLP argued that the material support statute violated their First and Fifth Amendment rights.
In a Nov. 17, 2009 press release, David Cole, an attorney representing HLP, said “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
DOJ argues in their brief that the current definition of material support is a “vital part of the nation’s efforts to fight international terrorism.” Its petition to the Supreme Court said the law has been used in 120 prosecutions since 2001, resulting in 60 convictions. However, HLP’s brief said the government “has made no showing that the limited injunction at issue here undermines its efforts to fight terrorism in any meaningful way. Nor has it cited a single prosecution that was or would have been frustrated by the court of appeals narrow, as-applied ruling.”
The Ninth Circuit ruling was limited to the HLP and the facts of its case, as is the Supreme Court case. Although a decision requiring more specific definitions would greatly benefit many charitable operations, which can be constrained by uncertainty over what the law does or does not allow, the case will not result in a humanitarian exemption to the law. That issue is not before the court. Congress, however, is in a position to address it.
The Ninth Circuit’s decision reaffirmed that Congress’ attempts to adjust the statute have failed to do fix the constitutional problems. In a January 2009 press release, Shayana Kadidal, an attorney with the Center for Constitutional Rights, said, “The new administration should change the law to make clear that only those who intend to further the illegal ends of an organization can be punished.”
Numerous friend of the court briefs have also been filed on behalf of HLP. These include the Carter Center and other peace groups, the Victims of the McCarthy Era, the Constitution Project and Rutherford Institute and Academic Researchers and the Citizen Media Law Project. Friend of the court briefs supporting the government’s position were submitted by the Anti-Defamation League, three think tanks and a group of former military officials.