Supreme Court Backs Anti-Terror 'Material Support' Law The Supreme Court has upheld a federal law that bars "material support" to foreign terrorist organizations, rejecting a free speech challenge from humanitarian aid groups.
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High Court Backs 'Material Support' Anti-Terror Law

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High Court Backs 'Material Support' Anti-Terror Law

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High Court Backs 'Material Support' Anti-Terror Law

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MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

I'm Robert Siegel.

And we begin this hour with a unanimous decision from the U.S. Supreme Court. It upheld a federal law today, a law that upholds the prosecution of American citizens for supporting a designated foreign terrorist organization. But the court split sharply on one issue: Can an American citizen be prosecuted for advising such groups on how to resolve their disputes peacefully through international law?

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: The so-called material support law was first enacted during the Clinton administration and strengthened after 9/11. 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.

Mr. RALPH FERTIG (President, Humanitarian Law Project): My speech is particularly nonviolent. I mean, I've gone to jail in the United States as a freedom writer on my advocacy for peace.

TOTENBERG: Fertig and his group wanted to train members of the Kurdistan Workers' Party, known as the PKK, in how to present their grievances for a resolution before the U.N. He contended that the material support law is unconstitutional when applied to such peaceful advocacy. But today, the Supreme Court disagreed by a six-to-three 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, for instance, to 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 to even peacemakers. He noted the Congress and the executive 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 stall with negotiations while they regroup from previous losses.

What's more, Robert 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.

Georgetown law professor David Cole argued the case in the Supreme Court on behalf of the Humanitarian Law Project.

Professor DAVID COLE (Georgetown University Law Center): 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.

TOTENBERG: Former Bush deputy national security adviser Juan Zarate saw the decision differently.

Mr. JUAN ZARATE (Former Deputy National Security Adviser to President George W. Bush): The court has conceded that the Congress and the executive 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.

TOTENBERG: Despite the consternation expressed by human rights groups about today's ruling, many experts said the decision would change little about the way the material support law operates.

UCLA law professor Norman Abrams is author of a leading textbook on antiterrorism law.

Professor NORMAN ABRAMS (Professor of Law Emeritus, UCLA School of Law): The statute has its biggest bite in connection with giving money to organizations that do good activities and do bad activities.

TOTENBERG: But many humanitarian organizations like the Carter Center were gravely disappointed. President Carter has said that the law hinders peaceful resolution of violent conflicts. The court's ruling today did impose some caveats declaring that the government could not punish an independent speaker who's not acting in concert with a terrorist organization, nor could the government apply the material support restrictions to a domestic organization.

But just what that means is unclear. Would it be legal 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?

Professor Cole, who represented the Humanitarian Law Project, suggests that such a fuzzy line is, in fact, a clear one: Who would risk writing such an op-ed piece, he asks?

Prof. COLE: No one is going to do it. It has tremendous chilling effect. If you risk spending 15 years of your life in jail for writing an op-ed, you're not going to write that op-ed.

TOTENBERG: Dissenting from today'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 asks, 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.

Nina Totenberg, NPR News, Washington.

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