On Feb. 23, 2010, the Supreme Court heard arguments on whether parts of the Patriot Act that prohibit supporting a designated terrorist group to pursue peacebuilding programs violate the Constitution. David D. Cole, a lawyer for people and groups challenging the law in the case, Holder v. Humanitarian Law Project (HLP), said the law prevented them from exercising their First Amendment rights. “It is core political speech on issues of public concern,” Cole told the court. “It is advocating only lawful, peaceable activities. This court has never upheld the criminal prohibition of lawful speech on issues of public concern.” Citing previous cases where the Supreme Court’s opinions had distinguished “between aid that is intended to further lawful activity and aid that is intended to further illegal activity,” [18] Cole said the government should focus on prosecuting individuals intending to further a terrorist organization’s violent and illegal activities, rather than target activists who encourage peaceful political solutions.  A ruling in the case is expected by late June or early July.

(Page numbers refer to the Feb. 23, 2010 oral argument transcript)

Background on Material Support Laws and the Humanitarian Law Project

Originally passed in 1996 but augmented by the Patriot Act in 2001, the material-support statute bars providing aid to any organization designated as a terrorist group by the United States government. However, the material support statute not only prohibits providing money and weapons to these groups, but denies U.S. organizations from providing “training,” “personnel,” “service” and “expert advice or assistance,” including advice on facilitating peacebuilding programs or making human rights claims at the United Nations.

Cole represents individuals and groups who want to advise designated groups about nonviolent approaches to resolving their political grievances. One of the groups Cole represents, the Humanitarian Law Project, is a U.S. nonprofit with a mission to advocate “for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law.”  They sought to advise the Kurdistan Workers’ Party (PKK) about advocating their agenda before the U.N. Commission on Human Rights and conducting “advisory sessions and public awareness campaigns.” But because the PKK is a designated terrorist group, the material support statute of the Patriot Act makes these actions criminal.

Ambiguous Law

Throughout the oral argument, justices raised questions about whether a distinction can be drawn among different types of support that individuals provide to terrorist organizations.  Chief Justice John G. Roberts Jr. said at least one part of the law, banning expert advice, seemed vague to him. “I don’t know sitting down that I could tell,” he said, whether advice about peaceful advocacy was covered by the “material support” statute.

Justice Sonia Sotomayor said the law is so broadly written that almost anything can be included in the category of “training.” “Under the definition of this statute, teaching these members to play the harmonica would be unlawful,” she said.

Trying to understand what was permissible under the law, Justice Stephen Breyer said “petitioning the United Nations … does not on its face seem to me to be something that reasonably you would think was going to aid [designated groups] in their unlawful objectives.”  

Chilling Effect on Humanitarian Aid

The restrictions created by material support statute have also hampered delivering humanitarian aid to people trapped in areas controlled by a designated group during or after a natural disaster or armed conflict (See Legal Roadblocks for U.S. Famine Relief to Somalia Creating Humanitarian Crisis). Justice Anthony Kennedy conveyed this concern when he asked U.S. Solicitor General Elena Kagan “could  the government forbid any … organization or person from giving tsunami aid to one of these organizations,” referring to the 2004 Indian Ocean tsunami.

Justice Ruth Bader Ginsburg also expressed reservations about the law’s negative impact on humanitarian aid activities, saying she did not “understand the line between “lawful and unlawful efforts,” adding “all [HLP] want to do is speak about lawful activities.”

Kagan: Membership Yes, Peacebuilding No

Countering Cole’s argument that his clients’ First Amendment rights had been violated, Kagan said “the Petitioners’ supposed First Amendment claims really are not speech claims at all.”[34] Kagan also said, “in addition to engaging in independent advocacy, Petitioners can meet with members of the foreign terrorist organizations, can join the foreign terrorist organizations, that membership is not prohibited by the statute.” [35]

Ginsberg disagreed with Kagan, saying, “they said that they want to train them how to do lawful things, how to pursue their goals in a lawful, rather than a terrorist, way. And that is speech.[45]

Responding to Kagan’s statement that membership in a designated group was legal, Justice Samuel Alito said, “Could you explain how someone could be a member of one of these organizations without providing a service to the organization? Simply by lending one’s name as a member; that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.”[39]