Court to hear case on material support for terrorists

Thursday, October 1, 2009

WASHINGTON — 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

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.

“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

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

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.”

Tags: , , ,