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.
For the same reason, the Court rejected the plaintiffs’ free association arguments.
Justice Breyer offers up for the dissent what I believe is a terminally naïve view of terrorism and how terrorist (and “humanitarian”) organizations operate:
Throughout, the majority emphasizes that it would defer strongly to Congress’ “informed judgment.” See, e.g., ante, at 30. But here, there is no evidence that Congress has made such a judgment regarding the specific activities at issue in these cases. See infra, at 20–21. In any event,” whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open [for judicial determination] whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.” Whitney, supra, at 378–379 (Brandeis, J., concurring). In such circumstances, the “judicial function commands analysis of whether the specific conduct charged falls within the reach of the statute and if so whether the legislation is consonant with the Constitution.” Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 844 (1978). Hence, a legislative declaration “does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution.” Whitney, supra, at 378; see also Landmark, supra, at 843 (“Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake”).
I concede that the Government’s expertise in foreign affairs may warrant deference in respect to many matters, e.g., our relations with Turkey. Cf. ante, at 27–28. But it remains for this Court to decide whether the Government has shown that such an interest justifies criminalizing speech activity otherwise protected by the First Amendment. And the fact that other nations may like us less for granting that protection cannot in and of itself carry the day.
Finally, I would reemphasize that neither the Government nor the majority points to any specific facts that show that the speech-related activities before us are fungible in some special way or confer some special legitimacy upon the PKK. Rather, their arguments in this respect are general and speculative. Those arguments would apply to virtually all speech-related support for a dual purpose group’s peaceful activities (irrespective of whether the speech-related activity is coordinated). Both First Amendment logic and First Amendment case law prevent us from “sacrific[ing] First Amendment protections for so speculative a gain.” Columbia Broadcasting System, Inc.v. Democratic National Committee, 412 U. S. 94, 127 (1973); see also Consolidated Edison Co., 447 U. S., at 543 (rejecting proffered state interest not supported in record because “[m]ere speculation of harm does not constitute a compelling state interest”).
The dissenters seem to feel that unless the government can show that the aid to these organizations enabled them in their terrorist activities, the Court has sanctioned a slippery slope restricting free speech and association.
Writing at SCOTUSblog, Lyle Denniston seems to share that concern:
The Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.
Libertarian constitutional law professor Eugene Volokh concluded that he assumes the restrictions apply only in the case of coordination with foreign terrorist organizations.
[The] Court did stress that the speech restrictions in Humanitarian Law Project only applied to coordinated speech and not to independent speech. But it didn’t squarely hold that restrictions on independent advocacy would be unconstitutional, nor did it specifically explain the constitutional significance of a coordinated/independent speech distinction. I wish it had said more about this, and made absolutely clear that avoiding bad reactions by foreign nations does not justify restricting independent advocacy by Americans.
I happen to think that the Court struck a reasonable balance given the realities of the operating mode of terrorist organizations, the fungibility of aid given to them, and the fairly minor restrictions imposed on the plaintiffs who were seeking injunctive relief based on theoretical assistance. I do not imagine that the restrictions will prove particularly onerous. Nor do I think the line in future cases will be especially difficult to draw.
In the Washington Examiner, Jed Babbin argues that while the decision does not apply to executive action, the Republicans on Capitol Hill sought to use the reasoning behind the majority opinion to block the $400 million in relief the administration plans to send to Gaza and to force Attorney General Holder to take a more active role in halting fundraising efforts in the U.S. for terrorist groups:
On November 24, 2008, a Texas federal jury convicted the Holy Land Foundation and five of its leaders on charges of providing material support to Hamas. A Department of Justice press release said: “The government presented evidence at trial that, as the U.S. began to scrutinize individuals and entities in the U.S. who were raising funds for terrorist groups in the mid-1990s, the HLF intentionally hid its financial support for Hamas behind the guise of charitable donations. HLF and these five defendants provided approximately $12.4 million in support to Hamas and its goal of creating an Islamic Palestinian state by eliminating the State of Israel through violent jihad.”
Attorney General Eric Holder’s Justice Department has — according to congressional sources — decided against further prosecution of other related persons and entities, evidence of whose support for terrorism was uncovered during the HLF case. Why?
Senate Judiciary Committee Republicans are preoccupied now with the Kagan Supreme Court nomination. But they — and their House counterparts — should make it a priority to stop aid to the Hamas government of Gaza.
The White House may argue that executive action isn’t precluded by the decision, only that of private citizens and groups. That’s a debate Republicans should be eager to engage.
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