On Feb. 23, 2010, the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project (HLP). At issue is the constitutionality of a provision in the USA Patriot Act that makes it a crime to provide “material support or resources” to any group that the government has labeled as a terrorist organization.

The Constitution Project and Charity and Security Network held a panel event where speakers discussed the case in regards to the First Amendment’s free speech provision and the Fifth Amendment’s due process clause. This event was broadcast on C-SPAN.

On March 4, The Kojo Nnamdi Show, a live two-hour magazine program on WAMU 88.5 based in Washington D.C, featured a discussion surrounding the issues involved in the Holder v. Humanitarian Law Project case.  The full transcript from that program is available here.

Speakers during the program included:

David D. Cole, Professor of Law at the Georgetown University Law Center and presenter of the Supreme Court oral argument in the Humanitarian Law Project case, Adam Liptak, Reporter for The New York Times, and Robert Malley, the Middle East and North Africa Program Director at the International Crisis Group and former Special Advisor to President Clinton for Arab-Israeli Affairs (1998-2000).

Portions of the discussion are below.

Nnamdi began the discussion by asking the audience to “Consider the following story of free speech and the fight against terrorism.  A small California human rights organization wants to provide legal advice to a Kurdish militant group in Turkey. They want to steer them on a path toward a peace process and train them to bring a case before the United Nations. In fact, it might end up diffusing a long and bloody insurrection by bringing two parties to the negotiating table.Trouble is that Kurdish militant group is a foreign terrorist organization at least according to the U.S. State Department. Any advice or assistance could be considered material support for terrorism putting that American organization in legal jeopardy.”

Describing the type pf work HLP wanted to do, Liptak, said, “The question in this case is whether some terms are too vague or present First Amendment problems.  So Congress has also prohibited training, personnel, service, or expert advice and assistance. [Humanitarian Law Project] want to help people mediate their disputes.They want [the Kurdish militant group] to appeal to the U.N. to solve problems in Turkey and elsewhere.  They want to perhaps represent the group in the Supreme Court and file the friend-of-the-court brief in the Supreme Court. And the government’s position is that even that kind of help crosses the line is material support. ”

Explaining how major newspapers in the United States had published op-ed pieces between 2008-2010, Cole, said, “Under this law, [The New York Times, Washington Post and L.A. Times] are all guilty of providing material support to a terrorist group, because they provided a service by publishing that op-ed on behalf of Hamas.  And any coordinated speech with one of these groups, the government says, is a prohibited service.  President Jimmy Carter, who was on the same amicus brief that the International Crisis Group filed, went to Lebanon to monitor their elections. And one of the things he does — and when he does that, he goes and talks to all of the parties and tells them, you know, from his expertise as an election monitor, what are the appropriate procedures and what should you look out for in terms of a fair election.  He did that with Hezbollah.  He’s providing expert advice to Hezbollah.  Should he be prosecuted as a terrorist?  That’s how broad this law is written.”

Identifing the difficulties in conducting peace mediation, Malley said, “If we learnt one lesson from the Bush administration years is that making policy on the basis of ignorance, on the basis of cutting ourselves off from certain entities is not the wisest way to reach the right answer.”