Supreme Court upholds ban on 'material support' to foreign terrorist groups

By Robert Barnes
Washington Post Staff Writer
Tuesday, June 22, 2010

The First Amendment does not protect humanitarian groups or others who advise foreign terrorist organizations, even if the support is aimed at legal activities or peaceful settlement of disputes, the Supreme Court ruled Monday.

In a case that weighed free speech against national security, the court voted 6 to 3 to uphold a federal law banning "material support" to foreign terrorist organizations. That ban holds, the court said, even when the offerings are not money or weapons but things such as "expert advice or assistance" or "training" intended to instruct in international law or appeals to the United Nations.

The court's majority said it was not abdicating its role in protecting constitutional freedoms but acknowledging that Congress and the executive branch are better situated than the judiciary to decide what kind of restrictions are needed to keep Americans safe in a post-Sept. 11 world of terrorist threats.

Chief Justice John G. Roberts Jr. said those challenging the ban "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."

The law, Roberts wrote, "is, on its face, a preventive measure -- it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur."

The court's decision triggered criticism from some prominent figures, including former president Jimmy Carter, who said the statute "inhibits the work of human rights and conflict resolution groups" such as his Carter Center.

The law, he said, "which is aimed at putting an end to terrorism -- actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence." He said "the vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom."

"The government should not be in the business of criminalizing speech meant to promote peace and human rights," said Melissa Goodman, staff attorney with the American Civil Liberties Union's National Security Project, which filed a brief on behalf of itself and other human rights groups.

But others, such as the Anti-Defamation League, called the decision "right on target." "One cannot provide 'humanitarian' support . . . to a terrorist organization without helping their bottom line and facilitating violence, destruction and murder," the organization said in a statement.

The case brought forth a polite but distinct split on the court between those willing to defer to the political branches of government in decisions about protecting Americans from harm and those who do not want to constrict the constitutional protections of free speech and free association without stronger proof from the government that it is necessary.

Roberts wrote for the court's most consistent conservatives -- Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. -- as well as its most liberal member, retiring Justice John Paul Stevens.

Justice Stephen G. Breyer highlighted his disagreement by reading a summary of his dissent from the bench.

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