WASHINGTON, D.C. — One of the government’s prime legal weapons in the effort to root out terror suspects and sympathizers within the United States is set to come under the scrutiny of the US Supreme Court.
The high court announced on Wednesday it would examine whether certain provisions of the so-called material support law are unconstitutionally vague. The law makes it a crime to provide aid or assistance to any of 30 international organizations designated by the US government as a terrorist group.
The law, part of the Patriot Act, is designed to cut such groups off from US-based funding and other support efforts.
A human rights organization, the Humanitarian Law Project, filed suit on behalf of individuals associated with two designated terror groups, the Kurdistan Workers’ Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). In both cases the individuals were seeking to advance human rights and peacemaking efforts on behalf of the designated terror groups. The suit says they could be charged with a violation of the material support statute even though they intend to support only lawful and nonviolent activities related to the PKK and LTTE.
A federal judge and the Ninth US Circuit Court of Appeals in San Francisco agreed that three provisions within the law were unconstitutionally vague. Those provisions made it a crime to provide “training,” “expert advice or assistance … derived from … specialized knowledge,” and “service” to a designated terror group.
The court found that the law potentially covered a broad spectrum of legal activities protected by the First Amendment.
In asking the high court to take up the case, Solicitor General Elena Kagan said Congress intended to ban a broad range of material support — “regardless of whether the terrorist group claims to engage in otherwise lawful activities, and regardless of whether the support is ostensibly given to assist those supposedly lawful activities.”
Ms. Kagan adds: “The decision below seriously undermines the statutory scheme created by Congress to address the problem of international terrorism. Under the injunction affirmed by the court of appeals, respondents are free to provide ‘training,’ ‘expert advice or assistance,’ and ‘service’ – of whatever kind — to the PKK and the LTTE.”
“That result warrants correction by this court,” Kagan writes in her brief.
Humanitarian Law Project lawyer David Cole says the appeals court decision does not rule training, advice, and service activities immune from regulation, but merely requires greater legislative precision to avoid violating rights of free speech and free association.
“The government’s protestations about national security aside, it has made no showing that the limited injunction at issue here undermines its efforts to fight terrorism in any meaningful way,” Mr. Cole writes in his brief. “Nor has it cited a single prosecution that was or would have been frustrated by the court of appeals’ narrow, as-applied ruling.”
In a statement issued after the court announced it would hear the case, Cole said: “The material support law resurrects guilt by association and makes it a crime for a human rights group in the US to provide human rights training.” He added, “We don’t make the country safer by criminalizing those who advocate nonviolent means for resolving disputes. The Supreme Court should make clear that only those who intend to further the illegal ends of an organization can be punished.”
The combined cases are Holder v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89).