Holder v. Humanitarian Law Project

The federal law that prohibits "material support" of groups that the State Department labels terrorist organizations has been upheld against constitutional challenges by the Supreme Court and defended by former Attorney General Michael Mukasey and other conservative politicos, such as Rudolph Giuliani and Tom Ridge.

But when constitutional law expert David Cole recently pointed out in an op-ed for The New York Times that Mukasey, Giuliani, Ridge and Frances Townsend, a former Homeland Security adviser to President George W. Bush, may have ran afoul of the law when then they spoke at an event supporting the Mujahedin e Khalq (MEK), which has long been designated a terrorist group by the federal government, they collectively took to the National Review's blog to reiterate their commitment to the material support law, and mount a defense of their actions on behalf of MEK.

In their NRO blog post, Mukasey, Ridge, Giuliani, and Frances essentially argue that MEK had been improperly placed and kept on the government list of terrorist organizations. "MEK, which opposes the current regime in Tehran and has provided valuable intelligence to the United States in Iranian nuclear plans, was placed on the State Department list during the Clinton administration as a purported goodwill gesture to the mullahs, in aid of furthering dialogue. Regrettably, it was kept on during the administration of George W. Bush, in part out of fear that Iran would provide IEDs to our enemies in Iraq, which of course the mullahs are doing anyway."

But in a piece for The Huffington Post, Cole, a law professor at Georgetown, notes the flimsy nature of the group's defense.

Cole writes:

Their objections to the MEK's designation might well be justified (I take no position on that issue in the original op-ed, nor here). But the material support statute expressly provides that one cannot defend one's support of a designated group by challenging the propriety of the designation in court. Indeed, ironically enough, the Justice Department under President George W. Bush successfully defended that provision against an alleged supporter o the MEK who south to challenge the group's designation in her defense. (The decision is United States v. Afshari, 427 F. 3d 646 (9 th Cir. 2005).

...

As I argued in my original op-ed, I believe Mukasey and his compatriots have every right to advocate as they did. But according to the positions Mukasey's own Justice Department advanced, his actions were criminal - and he cannot plead the MEK's wrongful designation as a defense. The law needs to be changed. The problem is not just with a single erroneous designation, but with a statute that turns speech advocating only lawful activity into a terrorist crime.

The Supreme Court, voting 6-3, upheld a federal law that bars "material support" of groups the government deems are terrorist organizations.  The Associated Press reports that the majority opinion, written by Chief Justice John Roberts, finds that the government "may prohibit all forms for aid to designated terrorist groups, even if the support consists of training and advice about entirely peaceful and legal activities." Roberts, joined by Justices John Paul Stevens, Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito, wrote that the "material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future." In Holder v. Humanitarian Law Project a group of individuals and nonprofit organizations, including the Los Angeles-based Humanitarian Law Project challenged the constitutionality of the material support provision. The groups sought to provide financial support and legal and political training to the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Both of those groups had been designated by the State Department as foreign terrorist organizations. Roberts wrote that the government "has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens."

The groups and individuals who wanted to provide financial support and training for peaceful political purposes to the PKK and LTTE argued that the material support law violated their free speech rights and association rights, and that the law is unconstitutionally vague.

Justice Stephen Breyer lodged a dissent joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor. Breyer read his dissent from the bench.

Breyer wrote, "The plaintiffs, all United States citizens or associations, now seek an injunction and declaration providing that, without violating the statute, they can (1) ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes'; (2) ‘engage in political advocacy on behalf of Kurds who live in Turkey'; (3) ‘teach PKK members how to petition various representative bodies such as the United Nations for relief'; and (4) ‘engage in political advocacy on behalf of Tamils who live in Sri Lanka.'"

"All these actions," Breyer continued, "are of a kind that the First Amendment ordinarily protects."

He continued, "In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends. Even the subjects the plaintiffs wish to teach - using international law to resolve disputes peacefully or petitioning the United Nations, for instance - concern political speech."

The opinion (pdf) is available here.

During the 2010 ACS National Convention, expert panelists examined the material support law and its constitutional implications. Video of that panel, "Material Support Provisions and the First Amendment," is available here.

The high court issued three other opinions today. For coverage of those opinions and other court action, see SCOTUSblog here.