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Supreme Court: How Monday's First Amendment Decision Affects Conflict Resolution (June 25).

The federal government can prevent conflict resolution groups from providing their services overseas where they would be in contact with--that is, providing "material support"--to known terrorist organizations.

That result is part of the U.S. Supreme Court’s 6-3 decision last Monday in Holder v. Humanitarian Law Project, 08-1498 (June 21, 2010)(available here).

The opinion, by Chief Justice John G. Roberts Jr., ruled on a First Amendment issue regarding the interpretation of 18 U.S.C. §2339B, commonly referred to as the “material support” law.

The law prohibits “knowingly provid[ing] material support,” including services, training, and expert advice to “foreign terrorist organizations” designated by the U.S. Secretary of State.

The implications for conflict resolution professionals--mostly in the peace and diplomatic areas but also of concern to commercial practitioners engaged in cross-border efforts involving government agencies and community groups—fired up list serv discussions this week.

In the case,  the majority and dissent agreed that the statutory language was not inherently “vague,” and did not present a violation of the plaintiffs’ Fifth Amendment due process rights. Specifically, both opinions agreed that the statute’s “prohibition on four types of material support—‘training,’ ‘expert advice or assistance,’ ‘service,’and ‘personnel’"—wasn’t so vague that it failed to put people on notice of forbidden activities.

Second, the majority held that the restriction on “coordinated” speech remains well-grounded on national security concerns. Such concerns include the “real” chance that training members of the Kurdistan Worker’s Party, or PKK, on resolving disputes through international law could be used to “manipulate” or “promote terrorism.”  In addition to the group supporting the Kurds in Turkey, the opinion also concerns efforts by U.S. groups and citizens involving  the Liberation Tigers of Tamil Eelam, or  LTTE, which the Tamils in Sri Lanka.

In dissent, Associate Justice Stephen G. Breyer, who was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, strongly disagreed “with the Court’s conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations’ lawful political objectives.” 

The government, Breyer stated, had not “met its burden of showing that an interpretation of the statute that would prohibit this speech and association-related activity serves the Government’s compelling interest in combating terrorism,” adding that he “would interpret the statute as normally placing activity of this kind outside its scope the activity,” including the dispute resolution work that the plaintiff organizations wanted to conduct.

The majority also held that the plaintiff’s First Amendment right of association was not violated since “mere association” does not equivocate with “material support” under the statute.

* * *

The complaint lodged by the plaintiffs expressed their peaceful goals, which included “training members of the PKK” on humanitarian law and “peacefully resolving disputes,” as well as “teaching PKK members” how to file various petitions to the United Nations.

The plaintiffs, according to the opinion, are two U. S. citizens and six domestic organizations:  the Humanitarian Law Project , which is a Los Angeles-based human rights organization “with consultative status to the United Nations";, the project’s president, Ralph Fertig ; Nagalingam Jeyalingam, a Tamil physician who was born in SriLanka and is a naturalized U. S. citizen, and five nonprofit groups that back Tamil interests.

The majority held that the goals could allow terrorist organizations “time to recover from short-term setbacks, lulling opponents into complacency” and “ultimately preparing for renewed attacks.” Chief Justice Roberts stated in his opinion that this possibility was “real, not remote.”

In his dissent, Breyer writes that the possibility of peaceful dispute resolution training enhancing terrorist attacks is merely a matter of “speculation.” He added that:

I am not aware of any case in this Court…in which the Court accepted anything like a claim that speech or teaching might be criminalized lest it, e.g., buy negotiating time for an opponent who would put that time to bad use.

Chief Justice Roberts rebuts the dissent’s reasoning by noting that “in the dissent’s world, such training is all to the good.”

Justice Breyer strongly disagreed, discounting the fact that an opponent’s “willingness to negotiate might be faked.”

What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try? What might be said of these claims by those who live, as we do, in a Nation committed to the resolution of disputes through “deliberative forces”? {Citation omitted.]

Breyer continues:

Moreover, the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation.  Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment. The Constitution does not allow all such conflicts to be decided in the Government’s favor.

* * * 

The majority notes that the statute does not limit “independent advocacy”  groups, who are still free to speak, write, and advocate as long as such actions are done independently.

The majority, in addressing statutory construction, held that the parties need only know that the group they support is a labeled terrorist organization. The dissent disagrees, noting that the intent needed is that of furthering illegal terrorist activities.

In discussing the First Amendment speech issue, Chief Justice Roberts emphasizes that most cases under the “material support” law will fall under conduct and not “coordinated speech.”  The law’s restrictions, however,  remains well-grounded based on research showing that some terrorist organizations do not have “organizational firewalls” that separate humanitarian aid from terrorist activities.

The Court places a high level of scrutiny against government restrictions on speech. The dissent agrees that there is a “strong countervailing interest” in the name of national security, but strongly questions the statute as a means of achieving that interest.

Charitable monetary contributions, the dissent argues, are “fungible” and can be used to buy arms. Teaching political advocacy, however, does not clearly fall into the same category, and case law has long allowed “pure advocacy of even the most unlawful activity,” Justice Breyer notes.   

* * *

The case has a long and complicated history.  It was launched in 1998 in federal district court.  With regard to the plaintiffs’ overseas work, the government reports assert that the PKK has “waged a violent insurgency” that has taken more than 22,000 lives, while the Tamil Tigers have used suicide bombs and political assassinations throughout Sri Lanka.

During the Feb. 23 oral arguments, Solicitor General--and Supreme Court nominee --Elena Kagan wrestled with questions about drawing the line between legal and illegal support for such organizations. In addition, she articulated that the “material support” law might forbid State Department designated groups from hiring attorneys to file amicus briefs on their behalf in U.S. courts.

The “material support” law has been a popular tool for the government’s fight against terrorism. Since 2001, the government has charged 150 defendants under the law with 75 convictions, according to the New York Times.  Adam Liptak, "Court Affirms Ban on Aiding Groups Tied to Terror," N.Y. Times (June 21, 2010)(available here). 

The case has attracted criticism--and praise--throughout the country. The original plaintiff Ralph Fertig, of the  Humanitarian Law Project, told the Times, “This is a very dark day in the history of human rights struggle to assist groups overseas that are being oppressed.”  

 --Diana Gesualdi, CPR Intern