The Supreme Court goes too far in the name of fighting terrorism

Tuesday, June 22, 2010

WHICH OF the following is illegal under the law that bars providing "material support" to terrorists?:

1. Giving money to a terrorist organization.

2. Providing explosives training to terrorists.

3. Urging a terrorist group to put down its arms in favor of using lawful, peaceful means to achieve political goals.

After Monday's Supreme Court ruling in Holder v. Humanitarian Law Project the answer is: all three.

The material support law prohibits U.S. citizens from providing "services," "personnel" or "training, expert advice or assistance" to U.S.-designated terrorist groups. It has long been understood that funding and providing weapons training were off limits. What was less clear was how far the law could reach to punish activities with no link to terrorism.

The court's answer: Very far. In our opinion, it is the court that went too far.

In a 6-3 opinion written by Chief Justice John G. Roberts Jr., the court essentially dismissed a challenge to the material support law brought by the Humanitarian Law Project. The project wanted to advise the Kurdistan Workers' Party (PKK) -- which for years has been on the U.S. terrorist list -- on filing human rights complaints with the United Nations and conducting peace negotiations with the Turkish government. The court concluded that Congress meant to preclude any type of aid to such groups because this assistance could help to "legitimate" the terrorist organization. Aid of all types also could help the group conserve resources that could then be channeled toward terrorist activities. So members of the Humanitarian Law Project legally can stand on a street corner and praise the PKK for carrying out terrorist acts, but they cannot work with the PKK in an effort to stop the violence.

Justice Stephen G. Breyer, in a dissent read from the bench to emphasize the depth of disagreement, had the better argument. Justice Breyer, while acknowledging the importance of giving the political branches great deference in matters of national security, argued that the court's reading of the law was too intrusive on the rights of the Humanitarian Law Project and its members. "Not even the 'serious and deadly problem' of international terrorism can require automatic forfeiture of First Amendment rights," he wrote.

Justice Breyer, who was joined in dissent by Justices Ruth Bader Ginsburg and Sonia Sotomayor, proposed a narrower interpretation of the material support law: Individuals should not be subject to prosecution unless they knowingly provided a service they had reason to believe would be used to further violence.

Congress was right to criminalize the donation of money and tangible goods to terrorist groups; such resources can be used to further violent ends even if donors mean them for legitimate purposes. The same cannot be said of the kind of services the Humanitarian Law Project intended to provide.

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