The U.S. Supreme Court has upheld a federal law that makes it a crime to provide any support to a terrorist organization — even when that support is specifically to promote resolving disputes peacefully.
The so-called material support law was first enacted during the Clinton administration and strengthened after the attacks of Sept. 11, 2001. It makes it a crime punishable by 15 years in prison to provide any assistance, advice, training or expertise to any group designated by the secretary of state as a foreign terrorist organization.
The Humanitarian Law Project has a long history of advocating peaceful resolution of international disputes, and it challenged the law in court, led by its president, 79-year-old Ralph Fertig. "My speech is particularly nonviolent," said Fertig, noting that his advocacy for peaceful dispute resolution goes back to his days as a Freedom Rider in the 1960s.
Fertig and his group wanted to train members of the Kurdistan Workers Party, known as the PKK, in how to present their grievances for resolution before the U.N. He contended that the material support law is unconstitutional when applied to such peaceful advocacy.
But Monday the Supreme Court disagreed by a 6-to-3 vote. All nine justices agreed that charitable contributions to terrorist organizations can be banned because money is fungible, and even though contributions may be given to support a hospital, that money then frees up other money for terrorist activities. But three justices contended that punishing mere advocacy of peaceful dispute resolution violates the First Amendment guarantee of free speech.
Chief Justice John Roberts wrote the court's majority opinion upholding the statute as applied even to peacemakers. He noted that Congress and the executive branch had both concluded that even benign support like this can benefit terrorist organizations by giving them an air of legitimacy, or allowing such organizations to use negotiations to stall while they regroup from previous losses. What's more, Roberts said, allowing such peaceful advocacy would undermine U.S. relations with allies, like Turkey, which is in a violent struggle with the PKK. It is vital in this context, he said, not to substitute "our own judgment" for that of Congress and the executive branch. The material support statute, he noted, is a "preventive measure — it criminalizes not terrorist attacks themselves but aid that makes the attacks more likely to occur," and in this context the government "is not required to conclusively link all the pieces in the puzzle before we grant weight to its conclusions."
Reaction To Ruling
"The bottom line is that the court has now said that the First Amendment permits Congress to make human-rights advocacy and peacemaking into a terrorist crime," said Georgetown Law School professor David Cole, who argued the case in the Supreme Court on behalf of the Humanitarian Law Project.
Juan Zarate, a former deputy national security adviser under President George W. Bush, saw the decision differently. "The court," he said, "has conceded that the Congress and the executive [branch] have the ability to, in essence, wall off those terrorist organizations so designated, and have the ability to restrict the providing of support of any sort to those groups."
Despite the consternation expressed by human-rights groups about Monday's ruling, many experts said the decision would change little about the way the material support law operates. "The statute has its biggest bite in connection with giving money to organizations that do good activities and do bad activities," said UCLA law professor Norman Abrams, author of a leading anti-terrorism law textbook.
But many organizations, like the Carter Center, were gravely disappointed. Former President Jimmy Carter has said that the law hinders peaceful resolution of violent conflicts. And some human-rights organizations have criticized the government list of foreign terrorist organizations as lacking coherence — for example, while a group opposed to the Iranian government is on the list, the Palestine Liberation Organization is not.
Caveats In Ruling
The Supreme Court's ruling Monday did impose some caveats, declaring that the government could not punish an independent speaker who is not acting in concert with a terrorist organization. Nor, said the court, can the government apply the material support restrictions to a domestic organization. But just what that means is unclear. Would it be legal, for instance, to obtain some information from the PKK and write an op-ed piece? Would it be legal for a lawyer to file a brief in court on behalf of the PKK?
"One of the things that's very confusing about this decision is it purports to draw a line between what the court calls independent advocacy and coordinated speech, without really explaining when that line is crossed," said ACLU legal director Steven Shapiro, who filed a brief in the case on behalf of the Carter Center and other human-rights organizations.
Cole, the professor at Georgetown, suggests that such a fuzzy line is in fact a clear one. Who, he asks rhetorically, would risk writing such an op-ed piece? "No one's going to do it. It has a tremendous chilling effect. [If y]ou're going to risk spending 15 years of your life in jail for writing an op-ed, you're not going to write that op-ed."
Dissenting from Monday's ruling were Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. In a passionate and rare spoken dissent from the bench, Breyer declared that general government assertions of a national security interest are not enough to justify suppressing otherwise lawful speech. "What is one to say," he asked, about the notion that the peaceful teaching of international human-rights law is "too dangerous" to tolerate? "A democracy like ours," he said, "is committed to such learning."