At the U.S. Supreme Court, it is rare that conservative and liberal justices team up to bludgeon lawyers for both sides with equal ferocity. But that is what the justices did on Tuesday.
Before the court was a provision of the Patriot Act making it a crime to provide material support to any organization designated a terrorist group by the U.S. State Department. The definition of material support includes not just providing weapons, or cash, or bomb-making skills. It includes providing any sort of personnel, expert advice, or training — including advice on how to resolve disputes peaceably or training on how to make human rights claims before the U.N.
The nonprofit Humanitarian Law Project has a long history of mediating international conflicts and training foreign groups like the Kurdish minority in Turkey in how to present their human rights grievances to the U.N. for resolution. But many Kurds are members of the Kurdistan Workers Party, known as the PKK, and the U.S. State Department has designated the PKK a terrorist group. So the Humanitarian Law Project stopped its activities for fear it could be prosecuted. Instead, it challenged the material support law as applied to advocacy of peaceful, lawful activity.
On the steps of the Supreme Court on Tuesday, its president, Ralph Fertig, said he "was afraid" that his advocacy for the Kurds, even though it was for a nonviolent resolution "could be interpreted as material assistance and that therefore I would be subject to arrest and conviction under the law," and a penalty of 15 years in prison.
Inside the Supreme Court, Georgetown law professor David Cole, representing Fertig, told the justices that persuading foreign groups, and training them to resolve their conflicts peaceably and lawfully, cannot be a crime under the U.S. Constitution.
Justice John Paul Stevens seemed to question that: "Don't you agree that some of that speech can be regulated?" he asked.
No, replied Cole. Advocating only lawful, peaceable activities is "core political speech" protected by the Constitution.
Justice Anthony Kennedy asked about charitable contributions: "What about giving tsunami aid to one of these organizations?"
"Money is different," Cole said. "It's conduct, not speech."
Justice Antonin Scalia noted that Cole's clients are free to say anything they want; they just can't say it in conjunction with a group designated as a terrorist organization.
Cole responded that under that theory, The New York Times, Los Angeles Times and The Washington Post could all be prosecuted for accepting, editing and publishing op-ed pieces written by Hamas leaders.
Justice Kennedy conceded that "this is a difficult case for me." Suppose, he said, "the speech is tantamount to material support in that it legitimizes, encourages, or strengthens the organization."
Cole replied that more than a half-century ago, the Supreme Court held that membership and advocacy in the Communist Party could not be a crime by itself. And that similarly peaceful advocacy for the Kurds, even for the PKK, cannot be a crime.
Justice Scalia disagreed. "I think it's very unrealistic to compare these terrorist organizations with the Communist Party," he said. "Those cases involved philosophy. I don't think any of these terrorist organizations represent such a philosophical organization."
Not so, responded Cole. Congress's findings were not that the Communist Party "was a philosophical debating society, but that it was an international criminal conspiracy directed by our enemy to overthrow us."
Justice Ruth Bader Ginsburg asked what the difference is between the PKK and al-Qaida or the Taliban.
We are at war with al-Qaida and the Taliban, Cole said. Congress designated these organizations as our enemy after the Sept. 11 attacks. But we are not at war with the PKK. The PKK's beef is with the government of Turkey.
Defending the material support statute on behalf of the U.S. government, Solicitor General Elena Kagan said the law is "a vital weapon in the nation's continuing struggle against international terrorism."
Justice Sonia Sotomayor asked, "What in this statute could justify Congress from barring individuals to petition peacefully to world agencies or even U.S. agencies?"
Kagan replied that individuals like Fertig can petition for themselves, but they cannot do it in conjunction with a group designated as a terrorist organization.
Justice Ginsburg interjected: "You say they could meet and communicate with these groups, but they can't communicate advice on how to pursue their goals through lawful means?"
Responded Kagan: "Exactly right."
Justice Kennedy pursued the point: So you can persuade an organization to lay down its arms, "but you can't tell them, here's how to do it?"
No, said Kagan, because "you've given them an extremely valuable skill."
Justice Kennedy then turned to an argument the government made in the lower courts. "Do you stick with the argument that filing a friend of the court brief" in this country on behalf of the PKK would be a violation of the law?
"Yes," said Kagan. "That would be an illegal service."
Justice Stephen Breyer seemed incredulous: "You're saying a group abroad that may have some American citizens in it can't hire a lawyer" to file briefs in the U.S. on behalf of the group?
Kagan tried to dodge the question, but ended up saying, essentially, "yes."
Justice Ginsburg followed up: "All the group wants to do is support lawful activity, but it can't do that?"
"You can't provide material support, whether tangible or intangible," replied Kagan.
Justice Samuel Alito asked several questions indicating skepticism about the government's argument. "How can you argue that training and providing advice is not speech?" he inquired. At another point, he said that simply setting up the chairs at a meeting or cleaning up afterward could be providing a service.
All such activity is conduct, said Kagan, not speech. The words of the statute make clear what is legal and what is not.
Chief Justice John Roberts seemed skeptical: "I'm not sure that's right. I mean, expert advice or assistance. I don't know sitting here that I could tell you how to advocate for peaceful resolution, or whatever. Is that expert advice?"
Justice Sotomayor opined that "under the government's definition, teaching these members to play the harmonica would be unlawful."
To which Justice Scalia replied with an acidic puckishness: "Well, (Sept. 11 attacker) Mohamed Atta and his harmonica quartet might tour the country and make a lot of money."