The Supreme Court and material support for terrorist organizations

While the ordinary U.S. Supreme Court case doesn’t grab the attention of foreign policy specialists, Holder v. The Humanitarian Law Project, argued Feb. 23, 2010, is one of those rare exceptions. Depending on how the Supreme Court rules, it could be making a decision with major ramifications (even personal ones) for foreign policy specialists. At issue is the constitutionality of the United States government’s interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of "material support" to foreign terrorist organizations. This provision is the government’s most used law in prosecuting those suspected of terrorism, largely because of the law’s breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing "training," "personnel," "expert advice or assistance," or "service" to such a group, even when such services are completely unrelated to terrorist violence.

In this case the petitioners, the Humanitarian Law Project, a nonprofit legal organization that specializes in working in conflict areas with the goal of promoting human rights, wanted to train members of the Kurdistan Worker’s Party – a group that had been designated as a terrorist organization under the law and involved in an armed insurgency inside Turkey – to instead use the tools of human rights law to achieve their goals. Surprisingly, the U.S. government, at least in its position before the courts, has taken the view that such an activity would violate the statute. As one government attorney put it, the goal of the statute is to make designated terrorist groups "radioactive." Assisting them to advocate their views in political forums such as the U.N., or to file a brief with a court, or to publish an article in a newspaper or make a presentation to a television station would effectively render such groups less "radioactive," and thus run afoul of the law’s purpose.

The government claims that the statute does not violate the First Amendment because it does not prohibit speech as such, but only coordination of speech between an individual and a terrorist. Accordingly, while it would be legal to write an op-ed calling on Hamas, for example, to renounce suicide bombing, it would be illegal to meet with Hamas and assist them in drafting a new use of force policy that renounces suicide bombing, at least until such time as the State Department removes Hamas’s designation as a foreign terrorist organization. One reason for this according to Elena Kagan, the US Solicitor General who argued the case, is that learning advocacy and other communication skills is itself very valuable, something a terrorist organization then could use later for other, nefarious purposes.

Presumably, however, it is the goal of U.S. policy to induce terrorist organizations to abandon terrorism as a method to advance their political grievances. Direct communication with such groups would seem to be a reasonable, even necessary, means to achieve that result. One of the ways to convince terrorist organizations to abandon terrorism is to convince them that they can achieve their legitimate political goals without resorting to terrorism. Yet, the government’s refusal to limit the reach of the "material support" statute to lethal support threatens to criminalize the ordinary work of many civil society groups that work to convince terrorist groups of precisely that. It also threatens to freeze in place certain policies by preventing those who are best positioned to change views – foreign policy specialists who are free from restrictions of government service – from acting as practical intermediaries between the U.S. government and terrorist organizations during any kind of interim period when a terrorist organization might evolve into a legitimate political interlocutor. As former U.S. President Jimmy Carter put it, "Our work to end violence sometimes requires interacting directly with groups that have engaged in it."

The good news is that the Supreme Court exhibited some scepticism regarding the government’s theory of the scope of the statute, leaving some reasonable hope that it will find that the government’s interpretation of the "material support" provisions violates free speech. The final decision, however, will not be released for some weeks, perhaps even months. Stay tuned.

Mohammad Fadel is the Canada Research Chair for the Law and Economics of Islamic Law and Assistant Professor at the University of Toronto Faculty of Law.