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SCOTUS Upholds Key Part of Patriot Act

A challenge to the statute that outlaws the provision of "material support" to terror groups went down to defeat.

by
Clarice Feldman

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June 24, 2010 - 12:00 am
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In February, I described the legal challenge to the section of the Patriot Act which makes it a crime to offer material support to a foreign terrorist organization. At the time I predicted the Supreme Court would overturn the Ninth Circuit decision.

On Monday, that prediction came to pass when the Supreme Court did just that.

The case involved the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), both of which had been designated foreign terrorist organizations by the secretary of state — whom the statute invests with the authority to make such designations. Several groups which designate themselves as humanitarian operations contended that they wished to support the humanitarian operations of these two groups, which admittedly also engaged in terrorist operations, including murdering U.S. citizens. The plaintiffs sought a partial injunction of the Patriot Act’s application to their intended endeavors. A district court granted that request; the oft-reversed Ninth Circuit Court of Appeals sustained that injunction and the case made its way to the Supreme Court.

Plaintiffs offered a creative interpretation of the Patriot Act, claiming that the Court must read into it a restriction on such activities only if the person offering such aid knows the terrorist organization plans to misuse that particular aid to advance terrorism. Read that way, the constitutional challenge need not be reached as there was no evidence that was the case here. In fact, read that way, the Patriot Act would appear to be gelded.

The Court majority would have none of that:

[Plaintiffs] give the game away when they argue that a  specific intent requirement should apply only when the material-support statute applies to speech. There is no basis whatever in the text of §2339B to read the same provisions in that statute as requiring intent in some circumstances but not others. It is therefore clear that plaintiffs are asking us not to interpret §2339B, but to revise it. “Although this Court will often strain to construe legislation so as to save it against constitutional attack, it must not and will not carry this to the point of perverting the purpose of a statute.” Scales v. United States, 367 U. S. 203, 211 (1961).

Scales is the case on which plaintiffs most heavily rely, but it is readily distinguishable. That case involved the Smith Act, which prohibited membership in a group advocating the violent overthrow of the government. The Court held that a person could not be convicted under the statute unless he had knowledge of the group’s illegal advocacy and a specific intent to bring about violent overthrow. Id., at 220–222, 229. This action is different: Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing “material support” to such a group. See infra, at 20–21, 35. Nothing about Scales suggests the need for a specific intent requirement in such a case. The Court in Scales, moreover, relied on both statutory text and precedent that had interpreted closely related provisions of the Smith Act to require specific intent. 367 U. S., at 209, 221–222. Plaintiffs point to nothing similar here.

The dissenters, however, found this argument dispositive. Justice Breyer, writing the dissent (joined by Ginsburg and Sotomayor), says:

In particular, I would read the statute as criminalizing First Amendment protected pure speech and association only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions. Under this reading, the Government would have to show, at a minimum, that such defendants provided support that they knew was significantly likely to help the organization pursue its unlawful terrorist aims.

The plaintiffs contended that the restrictions of the Patriot Act as applied to their work were unconstitutional in several respects. They claimed the Patriot Act was so vague it violated the Fifth Amendment’s Due Process Clause and that because they wanted to do such things as train PKK members to peacefully resolve disputes and the Kurds to seek aid from international organizations, the Patriot Act’s restrictions on these activities violated their First Amendment free speech and free association rights. By a 6-3 vote, the Court rejected these claims and with Justices Ginsburg, Breyer and Sotomayor dissenting, held the Patriot Act was constitutional.

The Court dismissively regarded both the plaintiffs’ contentions that the Patriot Act was unconstitutionally vague and the Ninth Circuit’s tortured reasoning to find that it was. The dissent agreed that the statute was not unconstitutionally void for vagueness.

As for the assertion that the Patriot Act impermissibly interfered with the plaintiffs’ right to free speech, the Court noted that they were all free to advocate as they wished, but they were not free to work in coordination with, or under the direction of, terrorist groups in so doing.

The majority opinion notes that even benign-seeming assistance to terrorist organizations can be diverted to terrorism; that the executive branch findings (entitled to judicial deference) was that aid to such groups is basically fungible. That is, providing them with humanitarian assistance frees up more resources for them to use on terrorist activities. With respect to the proposed assistance to the PKK, the Court in particular noted that the aid might help the terrorists by arming them with such information and techniques they could use to promote terrorism and to obtain funding from international bodies, ostensibly for relief efforts, which in fact would be used to promote terrorist activities.

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