The Supreme Court rejected first amendment claims and upheld a federal law on providing “material support” to foreign terrorist organizations in Holder v. Humanitarian Law Project. The material support law (found in the 1996 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)) is the darling of prosecutors and widely ridiculed by civil libertarians for allowing virtually any act to be classified as material support. The ruling is a victory for Supreme Court nominee Elena Kagan and a loss for civil liberties. Notably, however, even the conservatives on the Court found the interpretation of the Obama Administration to be too extreme.
Chief Justice John G. Roberts Jr. wrote the majority opinion and agreed that material support includes giving intangible assistance to groups labeled by the State Department as terrorist organizations. Roberts noted “[s]uch support frees up other resources within the organization that may be put to violent ends . . . It also importantly helps lend legitimacy to foreign terrorist groups; legitimacy that makes it easier for those groups to persist, to recruit members and to raise funds; all of which facilitate more terrorist attacks.” Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. joined the majority decision.
Justice Stephen G. Breyer rejected such claims, noting that there is a clear difference between giving money to such an organization and teaching human rights law. Various groups argued that they were trying to steer such organizations away from terrorism by teaching them how to work within international law principles and procedures. He was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. It is a reassuring vote by Sotomayor who was viewed as being both pro-law enforcement and weak on free speech while on the Second Circuit.
Solicitor General Elena Kagan argued the case herself, but took such an extremist position that even Roberts balked: “The government is wrong that the only thing actually at issue in this litigation is conduct” and not speech. As a limit on potential abuse, the Court insisted that only conduct directed by such groups would be covered and not “independent advocacy.” That line of distinction, however, was left maddeningly vague and will likely cause considerable uncertainty in the lower courts.
Among the challengers was Ralph D. Fertig, a civil rights activist who wanted to help the Kurdistan Workers’ Party in Turkey find peaceful ways to achieve its goals.
Here is the opinion: 08-1498
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