July 19, 2019

Holder v. Humanitarian Law Project: Material Support to Foreign Terrorist Organizations

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In Holder v. Humanitarian Law Project, the United States Supreme Court considered the constitutionality of 18 U. S. C. §2339B of the Patriot Act, which outlaws “knowingly provid[ing] material support or resources to a foreign terrorist organization.” According to Eugene Volokh, “material support resources” covers an extensive scope of categories, including “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.”

The Humanitarian Law Project (HLP) argued unsuccessfully that the breadth of the statute made it unconstitutionally vague and such a provision was a violation of free speech and association. The Court disagreed in its 6-3 decision, finding that the speech in question does not prevent the HLP or any other person or group from advocating on the behalf of any designated foreign terrorist organization, even if the speech could potentially benefit the organization; the statute does not even prevent one from becoming a member of any such organization or penalize one for doing so. The only limitation is that such “supportive” speech cannot be engaged in directly with a terrorist group. The statute “cover[s] only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”

The HLP’s primary objective in advocating for communication with certain classified terrorist groups was to train their members on how to use humanitarian and international law to peacefully resolve disputes or petition the United Nations. However, according to the Supreme Court, this speech is prohibited as speech that “imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge.'” Support of this kind, regardless of the good underlying intentions, “frees up other resources within the organization that may be put to violent ends.”

The response to the ruling has varied greatly. The Center for Constitutional Rights attorney David Cole suggests that the “Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime.” Alex Newman suggests that former president Jimmy Carter “could now be prosecuted for his work,” with the Carter Center, a humanitarian organization which operates to aid in international conflict resolution; Cole believes that “under this ruling, President Jimmy Carter, in monitoring an election in Lebanon, would be providing ‘material support’ to Hezbollah.” Renee Newman Knake posits that the case could even have implications for attorney advice to clients who may be members of designated terrorist organizations.

Others, however, have lauded the Supreme Court’s decision. Andrew C. McCarthy suggests that the decision is common sense; “teaching terrorists how to manipulate the international legal system makes them more efficient, and more deadly.” The good intentions of “transnational progressives” operating under the auspices of humanitarian law have monumental unintended consequences. The Court, he argues, rightfully deferred to the government’s competence and interest in combating terrorism.

While there is certainly no consensus as to the whether the Supreme Court concluded correctly, the Court’s decision brings to an end a controversy that has lasted over a decade and could have lasting implications.

(image source: United States Supreme Court)