On June 21, 2010, a divided U.S. Supreme Court upheld a federal statute that bans support to designated terrorist organizations, even when defined to include conflict mediation, human rights training and peacebuilding efforts aimed at turning terrorist groups away from violence. That same day the Charity and Security Network (CSN) and the Constitution Project (CP) held a press conference to comment on the ruling. An audio file of the entire teleconference, including reactions to the decision and a question and answer period from national media, is available here.
Analysis was provided from:
Sharon Bradford Franklin, CP’s Senior Counsel
Ahilan Arulanantham, ACLU of Southern California’s Director of Immigrants’ Rights and National Security
A written statement by Steven Vladeck, Professor of Law at the Washington College of Law at American University
Kay Guinane, CSN’s Program Manager
Bradford Franklin said the court’s ruling criminalizes activities by individuals or organizations that would “engage in pure speech to further lawful nonviolent ends.” The majority’s decision is “counterproductive in serving our governments interests in countering terrorism.” Rather than punishing these types of peacebuilding activities, Bradford Franklin said it would be more beneficial to “have groups on the ground teaching designated terrorist organizations how to lay down their arms” and encourage them to pursue peaceful solutions.
She said the court’s “majority doesn’t explain” how providing this type of pure speech tailored to turn militant groups away from violence frees up money for other purposes. Unlike tangible support such as money, “training for human rights aims and pursuing peaceful means” has not been shown to be transferable. Bradford Franklin says the Court and the other branches have failed to provide “any real findings” to back up these claims about this type of aid.
Arulanantham said the Court’s decision will be detrimental to the innocent victims of natural disasters, protracted civil conflicts, and others who are “desperately in need of humanitarian assistance.” Although the Court did not rule on humanitarian aid issues, he said groups doing such work will have increased “fear and uncertainty” about committing their humanitarian activities after the ruling. He also said the Court avoided clarifying what separates independent and coordinated support, saying another federal agency found that distinction “nearly impossible to determine.”
Having volunteered in Sri Lanka in the aftermath of the 2004 tsunami, Arulanantham said if the judges had been able to see the “the victims of violence and disaster whose lives their decision will so adversely affect,” they would have voted otherwise. To learn more about Arulanantham’s relief efforts in Sri Lanka and how material support laws undermine those efforts, see his article published by the American Constitutional Society “A Hungry Child Knows No Politics.”
“This is a sweeping decision, notwithstanding the Chief Justice’s attempt to suggest that they’re leaving harder issues for another day. In holding that the statute is not vague to the extent that it prohibits the provision of “service,” “training,” and “expert advice or assistance,” the majority effectively accepted the government’s argument that virtually any support for these groups is within Congress’s constitutional power to prohibit. Even the most benign forms of speech could be punished under the statute—a result that will likely have a profound chilling effect on the efforts of peacebuilding organizations and other NGOs that seek to promote non-violent democracy-building measures vis-à-vis these groups through teaching and other advocacy training. At oral argument, the government even suggested that the filing of an amicus brief on behalf of one of these designated “FTOs” might fall within the scope of the statute. The Court today seems to have endorsed such a potentially limitless view of what it means to provide “support” to these groups.
Perhaps the most important implications of the decision become apparent when one reads Justice Breyer’s dissent. Although the Court’s rejection of HLP’s vagueness challenges will have profound effects on the peacebuilding efforts of various NGOs, the more long-term effects of today’s decision will likely center on the Court’s rejection of the First Amendment freedom of association claim. It has been the law of the land since 1961 that the Constitution prohibits the imposition of guilt by association. Here, the Court concluded that the statute requires more than just mere association with a designated FTO, and so survives First Amendment scrutiny. But given the first part of the opinion, which endorsed an incredibly broad view of what it means to “support” these groups, the line between support and mere membership will be incredibly thin going forward.”
Agreeing with Bradford Franklin, Guinane said the decision paints these peaceful activities as supporting terrorism despite “nothing in the congressional record” that provides any evidence to back this claim. “Congress needs to engage in some real fact finding” efforts, she said, saying these claims “appear to be wholly unsupported, hypothetical and theoretical.” Guinane also called on Congress and the President to make rules that “protect free speech and promote our interests in building peace around the world.”