In the first case challenging the PATRIOT Act to come before the Supreme Court, the justices upheld a provision of the law that criminalized providing "material support" to foreign terrorist organizations.
Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law’s prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.
The decision was the court’s first ruling on the free speech and associations rights of Americans in the context of terrorism since the Sept. 11 attacks. The law has been an important tool for prosecutors: Since 2001, the government says, it has charged about 150 defendants for violating the material-support provision, obtaining roughly 75 convictions.
The court’s majority said deference to the other branches was called for given the threat posed by terrorism.
“At bottom,” Chief Justice Roberts wrote, “plaintiffs simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization — even seemingly benign support — bolsters the terrorist activities of that organization.” Justices John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. joined the majority decision.
The material support law bars not only contributions of cash, weapons and other tangible aid but also “training,” “personnel,” “training” [sic] and “expert advice or assistance.”
In a dissent which Justice Breyer read in part from the bench, he argued the majority had "drawn a false analogy between the two kinds of assistance," tangible aid such as money or weapons--material support--and education or training.
“Money given for a charitable purpose might free up other money used to buy arms,” Justice Breyer said from the bench. But the same cannot be said, he went on, “where teaching human rights law is involved.”
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In his written dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer said the majority had been too credulous in accepting the government’s argument that national security concerns required restrictions on the challengers’ speech and had “failed to insist upon specific evidence, rather than general assertion.”
In the 9th circuit court ruling that is partially overturned by this decision, the court ruled that bans on training, service, advice included in the statute were unconstitutionally vague, leaving groups like the Humanitarian Law Project unclear on their status. The HLP has worked with a militant Kurdish group in Turkey that the government says is an international terrorist organization, trying to assist the Kurdish group in non-violent, lawful means of protest and negotiation with the Turkish government. The other plaintiffs in the case were a doctor and six domestic organizations that provide human rights education, training, etc. for these groups.
In a press call today organized by the Center for Constitutional Rights, CCR attorney David Cole provided one example of an effort that now could be considered criminal: former President Jimmy Carter's election monitoring and training for all parties in fair election practices in Lebanon. Carter filed an amicus brief in the case. In a press release the CCR pointed out that the Court made one narrow ruling against the government.
The Court rejected the government’s argument that the statute, when applied to plaintiffs’ proposed speech, regulated not speech but conduct, and therefore needed to meet only a low standard – “intermediate scrutiny” – to survive. Instead, the Court found that the statute did criminalize speech on the basis of its content, but then found that the government’s interest in delegitimizing groups on the designated "terrorist organization" list was sufficiently great to overcome the heightened level of scrutiny. This is one of a very few times that the Supreme Court has upheld a criminal prohibition of speech under strict scrutiny, and the first time it has permitted the government to make it a crime to advocate lawful, nonviolent activity.
Roberts, in the majority opinion, made it very clear that the Court was showing great deference to the political branches in making national security decisions. Which means, in the case of this decision, the Dept. of Justice needs to clarify what they will and will not prosecute as "material support." Would they prosecute President Carter? Unlikely, but the onus is on the administration to provide those guidelines. This decision could create a tremendous chilling effect on human rights organizations' efforts to promote peaceful, non-violent solutions to international conflicts.
