First Amendment Center
October 1, 2009
The Supreme Court agreed yesterday to review parts of the Patriot Act and other laws that make it a crime to give “material support” including training and “expert advice” to designated terrorist organizations.
Humanitarian groups and individuals have challenged the law on First Amendment and other grounds, claiming its vagueness keeps them from providing nonviolent dispute resolution and human rights advocacy training, and chills their right to associate. The issue will be argued early next year in companion cases Holder v. Humanitarian Law Project and Humanitarian Law Project v. Holder.
“The material support law resurrects guilt by association and makes it a crime for a human rights group in the U.S. to provide human rights training,” said Georgetown University Law Center professor David Cole, who represents those challenging the law before the high court. “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 case began even before the Patriot Act and the Sept. 11, 2001, terrorist attacks. The Antiterrorism and Effective Death Penalty Act of 1996 gave the secretary of state the power to designate terrorist organizations, and banned material support to those groups. Soon after the law passed, 30 organizations were tagged as terrorist, including the groups involved in the current case: the PKK, which advocates establishing a Kurdish state in Turkey, and the Tamil Tigers, which seeks creation of an independent Tamil state in Sri Lanka.
The lawsuit against the statute was brought by groups and individuals who wanted to support what they said were the lawful and nonviolent activities of both groups. They won a ruling in 1998 finding the law unconstitutionally vague.
As the case proceeded, Congress amended the law to clarify or expand its provisions, including in the 2001 Patriot Act, which added “expert advice or assistance” to the list of prohibited activities. The law was amended again in 2004, but each time, judges have struck down parts of the law.
Cole says that in six separate decisions over the 11-year history of the case, every court has found some parts of the law unconstitutional. Before the Supreme Court, Cole claims that several terms in the law such as “training” and “expert advice or assistance” are unclear and vague, and could apply to a range of legal activities that have nothing to do with terrorism. He also asserts that the law violates the freedom of association because criminal liability depends on which organization receives the advice or support.
“Just as a statute prohibiting the provision of advice to the Communist Party but permitting the provision of advice to the Democratic Party would be penalizing association, so too this provision penalizes association,” Cole wrote in his brief to the Court.
In a counter-brief before the Supreme Court, Solicitor General Elena Kagan defends the law as a “vital part of the nation’s effort to fight international terrorism.”
She asserts that the law is not vague, stating that each of the challenged terms “is readily understandable by persons of ordinary intelligence.” Kagan adds that the law “regulates conduct, not speech, and does not violate the First Amendment in any of its applications.”