On June 21, in Humanitarian Law Project v. Holder, the Supreme Court reaffirmed the painfully obvious – that providing material support to terrorists is a crime and that Congress’ saying so is not a violation of the Constitution. That it took more than 10 years to reach this conclusion, and that three Justices dissented from it, says more about the ways in which lawyers construct arguments that only lawyers can believe in than it does about the reality of the world we live in, in which terrorist activities abound.
First, a bit of background: Since 1996, Congress has made it a crime to provide “material support or resources” to an organization the Secretary of State has designated as a “foreign terrorist organization.” The purpose of the law is to deny terrorist groups the ingredients necessary for planning and carrying out attacks.
One of the key ingredients in the law was a prohibition on virtually all types support, including both tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.” Recognizing that any form of support might benefit the organization, Congress made the ban near total. It was concerned, for example, that terrorist organizations with charitable or humanitarian arms were raising funds within the United States that could then be used to further their terrorist activities. Money is, after all, fungible. And so, the law outlawed any support to these groups, irrespective of whether that support was intended for humanitarian purposes.
The designated terrorist organizations are the ones you would expect to be listed – Al Qaeda, for example as well as others like the late, little-lamented Tamil Tigers, who waged a cruel terrorist war in Sri Lanka until they were recently defeated in a decisive military action. To protect against wholly innocent activity, in 2004 the law was clarified to make clear that anyone who gave support to a designated terrorist organization, is a criminal only if he had “knowledge that the organization is a designated terrorist organization …, that the organization has engaged or engages in terrorist activity . . ., or that the organization has engaged or engages in terrorism.”
Congress also made clear that purely independent speech that might advocate on behalf of terrorist organizations, but was not a public relations campaign coordinated with or directed by the terrorist organization, was protected. Thus, Congress took two steps that we have long advocated: It carefully defined the elements of the crime to exclude pure speech, and it enacted a strong criminal intent requirement, to make sure that only those who knew that the organization they were providing support to was a terrorist organization would be punished.
So who could oppose a statute narrowly tailored to prevent someone from providing tangible support to organizations he knows are terrorist organizations? Well, it turns out that a number of international law activists objected to the law. They raised two arguments: First, that prohibiting them from helping terrorist groups learn how to use peaceful means of conflict resolution violated their First Amendment rights to free speech and association; and, second, that words like “training” and “services” and “support” were inherently vague and couldn’t be used in a criminal statute.
The Supreme Court’s decision wisely rejected these challenges. As to the “vagueness” argument, the Court held that the words were sufficiently clear that a “person of ordinary intelligence” could determine their meaning and understand what was prohibited. Indeed, the issue was so easily resolved that all 9 Justices agreed that the law was not vague.
The Justices split, however, on the question of whether political activists could be prohibited from providing support to a terrorist organization through training in peaceful dispute resolution. Six justices of the Court recognized, as did Congress and the Obama Administration, that any support to certain violent terrorist organizations is likely, in the end, to aid and abet the criminal and terrorist ends of those groups, no matter how well-meaning that support is. And they recognized, as well, that free speech was only mildly constrained –if at all. Those who wished to do so could continue to argue publicly on behalf of the Tamil Tigers. They simply could not help the Tigers directly, by providing them with assistance such as training and technical assistance.
This seems to strike the right balance. As the Court recognized, the federal government’s duty to provide for the common defense and protect against activities by foreign terrorist organizations is one of its most solemn constitutional obligations. Characterizing the provision of material support to a foreign terrorist group as “free speech” simply because some speech is involved does not cloak it with First Amendment protections any more than teaching a terrorist how to make a bomb is free speech. What Congress has said, what the Obama Administration has argued, and what the Court has now held, is that certain foreign organizations are simply beyond the pale. In saying so, the Court got it right.