Holder v. Humanitarian Law Project

June 22, 2010 11:05 PM

Court Affirms Ban on Aiding Groups Tied to Terror. "In a case pitting free speech against national security, the Supreme Court on Monday upheld a federal law (PDF) that makes it a crime to provide 'material support' to foreign terrorist organizations, even if the help takes the form of training for peacefully resolving conflicts."
posted by homunculus (59 comments total)

SCOTUSblog analysis and round-up.
posted by homunculus at 11:15 PM on June 22, 2010

It's a good thing France didn't have this law in place during the American Revolution.
posted by Slarty Bartfast at 11:21 PM on June 22, 2010 [14 favorites]

I probably shouldn't have said that. Terrorism is very very bad and it is always clear who is on the wrong side in any given conflict.
posted by Slarty Bartfast at 11:24 PM on June 22, 2010 [5 favorites]

If you're a right-wing domestic terrorist organization, you're still good to operate on US soil, no worries.
posted by Blazecock Pileon at 11:29 PM on June 22, 2010 [4 favorites]

Why shouldn't you have said that, I think it was a very valid point for critical discussion. But let's note, you said it, not me.
posted by b2walton at 11:30 PM on June 22, 2010 [1 favorite]

But what if a corporation were to give $$$ to Hamas, we wouldn't want to muzzle a corporation's right to free speech would we?
posted by hamida2242 at 11:39 PM on June 22, 2010 [9 favorites]

(trick question: any corporation not funding the israeli war machine is a terrorist organization)
posted by hamida2242 at 11:40 PM on June 22, 2010 [1 favorite]

the Supreme Court on Monday upheld a federal law (PDF) that makes it a crime to provide 'material support' to foreign terrorist organizations

NB.
posted by clockzero at 11:43 PM on June 22, 2010

"Look, if you start helping them reason with us then it's harder to justify blowing them up. Get with the program, folks."
posted by zoinks at 11:48 PM on June 22, 2010 [2 favorites]

([{"scare quotes"}])
posted by zoinks at 11:50 PM on June 22, 2010

The Supreme Court has decided that some groups of foreigners are so dangerous to our nation that even teaching these groups to be non-violent is, in effect, an act of war against our own nation.

So it creates a legal guilt-by-association, where even the most innocuous connection between a citizen and a banned group can become a route for prosecution.

Naturally, it won't be long before the "foreign" part of "FTO" is dropped and it becomes more-or-less illegal to associate with certain groups of outlawed Americans. I envision a future where Americans are denied representation in court because doing so would provide "material support for terrorists".

The Roman Empire became more and more draconian as their supply of resources dwindled. Perhaps, like us, it wasn't intentional -- just a byproduct of a traditional elite increasingly desperate to remain in power -- but all signs suggest that this is just going to get worse before it gets better.
posted by Avenger at 12:02 AM on June 23, 2010 [15 favorites]

In a day where even engaging in diplomacy is losing a battle, and sitting in the same room with an enemy is a sign of weakness, does it not make sense that teaching the enemy to try to sit and diplome is itself teaching acts of hostility?

What scares me isn't that this ruling can make human rights campaigning into acts supporting terrorism. It's that this sort of makes some logical and emotional sense. Something has changed in the Zeitgeist in the US, and it's not pretty. The mindset where this makes sense is the mindset of total war.
posted by cotterpin at 12:22 AM on June 23, 2010 [1 favorite]

So, money is speech, which is why campaign finance regulation is not okay. But money isn't speech, because it's okay for Congress to pass laws saying that you can't give it to certain groups.

Wha?

And how is this expected to have any real effect on terrorists funding their operations? They're terrorists, they'll just use the same extralegal money channels that allow the drug, sex, &c. trade to work.
posted by nerdinexile at 12:33 AM on June 23, 2010 [7 favorites]

I wonder when Fr. Alec Reid (a private citizen who helped broker peace talks with both the IRA and ETA) will be arrested for his diplomatic efforts with known terrorist groups.

Does sending a postcard to Hamas with a recipe for Chicken Noodle Soup qualify as 'material support'?
posted by benzenedream at 12:42 AM on June 23, 2010 [1 favorite]

Kagan scores win on terror-support law
posted by homunculus at 1:00 AM on June 23, 2010

Peace Groups Slam High Court Ruling on "Terror Support"

One constitutional authority, law professor Francis Boyle of the University of Illinois law school, told IPS that the decision upheld the government's position as set out by the solicitor general, Elena Kagan, who has been nominated by President Barack Obama to be the next associate justice of the Supreme Court.

Boyle said that Kagan "argued this case as solicitor general and maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organisation would be violating the material support statute and thus risk criminal prosecution."

Boyle said Kagan's arguments in this case "demonstrate emphatically why she must not be confirmed for the U.S. Supreme Court. She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the [George W.] Bush administration with the USA Patriot Act."

posted by homunculus at 1:41 AM on June 23, 2010 [2 favorites]

Interesting how this wasn't deemed necessary in the era of the IRA bake sale...
posted by Dysk at 2:47 AM on June 23, 2010 [6 favorites]

In other words, declaring people 'unpersons' is now perfectly Constitutional.

As has been said many times, 1984 wasn't a warning, it was an instruction manual.
posted by Malor at 3:09 AM on June 23, 2010

Kagan [...] maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organisation would be violating the material support statute and thus risk criminal prosecution.

That's as bad as anything BushCo came up with.
posted by aeschenkarnos at 3:13 AM on June 23, 2010 [1 favorite]

...that effectively removes the right to a fair trial, doesn't it? Making it illegal for anyone to serve as your defence counsel?

This is utterly ridiculous. I didn't think it possible, but well done USA, you've overtaken the UK when it comes to batshit rights-restricting 'anti-terror' legislation...
posted by Dysk at 3:19 AM on June 23, 2010

I think at least 50% of the United States would give you a blank look if you said we should try to make peace with our enemies. They assume the Army will eventually kill them all.
posted by Salvor Hardin at 4:02 AM on June 23, 2010 [2 favorites]

I think at least 50% of the United States would give you a blank look if you said we should try to make peace with our enemies. They assume the Army will eventually kill them all.

Nobody ever wins a terrorist conflict outright. It's a well-worn path - hard-liners start terrorist conflicts, positions become entrenched on both sides, no talking is possible. It takes a more moderate generation coming to power before you get negotiation and compromise. This is why most terrorist conflicts last at least a generation... I think you're in this one for the long haul. Fifty years, maybe more?
posted by Leon at 4:23 AM on June 23, 2010 [1 favorite]

But what if a corporation were to give $$$ to Hamas, we wouldn't want to muzzle a corporation's right to free speech would we?

*SUPREME COURT ASPLODE*
posted by armage at 4:48 AM on June 23, 2010 [3 favorites]

Blessed are the peacemakers!*




* - Not valid in all jurisdictions, some restrictions may apply. See Congress for details.
posted by kcds at 5:13 AM on June 23, 2010 [1 favorite]

She has driven yet another nail into the coffin of the First Amendment and the U.S. Bill of Rights that was originally constructed by the [George W.] Bush administration with the USA Patriot Act.

Wow, THAT'S some astounding revisionis... oh wait, they meant the COFFIN was built by G-Dub & Co. Thaaaat makes more sense. Tidy up them participles, lady!
posted by FatherDagon at 5:19 AM on June 23, 2010

It should be noted that Justice Stevens, the man Solicitor General Kagan would replace on the Supreme Court, voted in the majority for this case. It's also interesting that Justice Breyer, who probably holds the least expansive view of the First Amendment among the four "liberal" justices, was so passionate about his dissent that he read it aloud from the bench.
posted by thewittyname at 5:52 AM on June 23, 2010 [3 favorites]

It should also be noted that HLP was teaching the groups how to peacefully petition for aid, and that the groups in question were PKK and the Tamil Tigers, two groups we're not actually engaged in any conflict with.
posted by Navelgazer at 6:16 AM on June 23, 2010

The Supreme Court has decided that some groups of foreigners are so dangerous to our nation that even teaching these groups to be non-violent is, in effect, an act of war against our own nation.

"That's some catch, that Catch-22."
posted by kirkaracha at 6:32 AM on June 23, 2010 [2 favorites]

What I want to see is some civil disobedience. I want to see Jimmy Carter in handcuffs and writing letters from prison.

Then he gets a presidential pardon.

And then does it again.

That's a humanitarian, dammit.
posted by lysdexic at 6:47 AM on June 23, 2010 [4 favorites]

In my humble opinion, this is a more complex issue than most of the above comments appear to recognize. Of course, it seems very strange that it should be illegal to train members of a terrorist organization in methods of non-violent conflict resolution. I would suggest that if someone is sincerely interested in non-violent conflict resolution then that person does not appear to be a terrorist. Terrorists, by definition, are engaged in very violent forms of conflict resolution. Killing people who disagree with you remains the most effective method of conflict resolution. It is seldom morally defensible - but it does bring about a resolution.

I see little recognition of the fact that it is a real problem that some Americans seek to aid terrorist groups that are attacking America. The recent failed Times Square car bomb was planted by an American, not an Egyptian. Such people exist. There is good reason to be concerned about them, and yes, to legally restrict the support of terrorism.
posted by grizzled at 7:36 AM on June 23, 2010 [1 favorite]

That sounds good in theory, grizzled, but the fact remains that peacemaking efforts are caught in this web, too. Thus making criminals out of people trying to stop the fighting with something other than Predator drones.
posted by lysdexic at 7:47 AM on June 23, 2010 [1 favorite]

Is a terrorist organization as defined in this act just whatever the executive deems to be a terrorist organization? That's worrisome.
posted by adoarns at 8:12 AM on June 23, 2010 [1 favorite]

Naturally, it won't be long before the "foreign" part of "FTO" is dropped and it becomes more-or-less illegal to associate with certain groups of outlawed Americans.

While I generally agree with you, all I can think is how entertaining to watch it would be to have a domestic version of this the first time someone successfully prosecuted an abortion clinic bomber as a terrorist.
posted by quin at 8:17 AM on June 23, 2010 [1 favorite]

Kagan [...] maintained during oral argument that any lawyer who filed an amicus brief in a U.S. Court on behalf of a designated terrorist organisation would be violating the material support statute and thus risk criminal prosecution.

That's as bad as anything BushCo came up with.

Agreed. While I'm not ruling out the possibility that these are her Boss's assignments rather her personal positions, the more I read, the more I lean towards the idea that Kagan is just bad news, and tend to think a lot of the recent crap is in no small part her influence. Most of what I encounter seems to suggest that her opinions are heavily biased in favor of prosecutors.

I'd be happy to hear other viewpoints, but I'm starting to hope she gets grilled to the wall during the confirmation hearings. Even though it almost certainly won't be over that.
posted by weston at 9:14 AM on June 23, 2010

SCOTUS in a nutshell: 85 years of reaction and 15 years of restrained progress. So don't hold your breath for a decent ruling on anything until somewhere around 2055.
posted by warbaby at 9:49 AM on June 23, 2010

Well, I guess I don't have to pay taxes now. Huzzah!
posted by elder18 at 9:57 AM on June 23, 2010 [2 favorites]

"Is a terrorist organization as defined in this act just whatever the executive deems to be a terrorist organization?"

"The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State, and is subject to judicial review."

according to the opinion
posted by internet fraud detective squad, station number 9 at 9:59 AM on June 23, 2010

Grizzled, that would be true if the law was concerned with people who are terrorists by the dictionary definition of the word. By seeking peaceful resolution they become something other than terrorists. But the law is concerned with people who are affiliated with organizations which have been designated as terrorist. Changing behavior, or seeking out nonviolent solutions, does not necessarily change that designation.

Efforts to draw young men away from extremist organizations could now potentially be illegal. The FTO designation is subject to judicial review, but if anyone petitions for review, they'd potentially be in violation.
posted by Nothing at 10:28 AM on June 23, 2010 [1 favorite]

I had just finished reading this:

My own take is, Holder v. Humanitarian Law Project is not about limiting free speech—it’s about the state expanding it power to repress. The decision limits free speech in passing, because what it is really doing is expanding the state’s power to repress whomever it unilaterally determines is a terrorist.

--Is the U.S. a Fascist Police-State?

Yeah, use of the "f-word" will cause some people to shut off their brains, but I don't get the impression that this is some college-age radical throwing the f-word around casually and reflexively.
posted by Western Infidels at 10:36 AM on June 23, 2010 [1 favorite]

I am actually thinking of two different things when I point out that a peson wishing use non-violent means of conflict resolution is not actually a terrorist. First, I want to point out that the suicide bomber, the kamikaze plane hijacker, and other mass murdering types of terrorists really are not interested in learning about non-violent means of conflict resolution. I don't believe that Hamas, al Qaeda, Hezbollah etc. are at all interested in non-violent conflict resolution. That is not their chosen strategy. They believe in violence. The second thing is, if in principle some individual or some organization which had been engaged in terrorism, were to renounce violence and seek non-violent solutions, then this person or organization should be legally re-classified. Terrorists can give up terrorism. It doesn't happen all that often, but it does sometimes happen. I see no reason why a given classification is permanent and immutable. Things change.

That said, I understand that this kind of law could be an impediment to someone who was sincerely trying to obtain help in finding peaceful solutions despite this person's own previous history of violence. I think that the law should be interpretted with some flexibility to allow for such situations.
posted by grizzled at 11:22 AM on June 23, 2010

Having read the opinion, I generally agree with it.

The idea that the United States is repressing foreign terrorist organizations by preventing US citizens from training them and/or giving them material support is rather ridiculous.

You can join the Tamil Tigers. It's legal. You can advocate for them independently. Again, legal. You can tell everyone they're not a terrorist organization. Legal. You can advocate for the Tamil people themselves. You simply can't train the Tamil Tigers, give them material aid, or work with/for them. Reasonable, I think, and justifiable.
posted by internet fraud detective squad, station number 9 at 11:22 AM on June 23, 2010

What if that "material aid" is a dinner meeting to discuss changing their ways?

Terrorist groups, and governments, believe in violence as a tool. Al Qaeda's demands can be called unreasonable, but there may be room for a political rather than a military resolution.

How do you start if you're going to say "no, you first" while pointing a gun?
posted by lysdexic at 11:54 AM on June 23, 2010

giving them material support is rather ridiculous.

Live by the sword, die by the sword. According to the Citizens United ruling, giving money to political organizations is protected speech. Does this mean that if the court doesn't like a particular political organization, it can deny it [material aid = money = free speech]? How does this all shake out?
posted by Mental Wimp at 11:55 AM on June 23, 2010

What if that "material aid" is a dinner meeting to discuss changing their ways?

It's still not protected speech, according to the Supreme Court (and I agree).

The dinner you're paying for is technically for "changing their ways", sure. That does not somehow prevent the Tamil Tigers (or whoever) from using the money they would have spent on the dinner to support their terrorist activities. That's why the law is about any material aid, not just "material aid that specifically is earmarked for blowing people up".
posted by internet fraud detective squad, station number 9 at 12:06 PM on June 23, 2010

Look, the point is that the government can now forbid people from telling certain other people how to resolve conflicts peacefully. That means less freedom no matter how you cut it, even when the speech is not only not unlawful, but advocating lawful activity.

If terrorists are trying to take away our freedoms, we're throwing the goddamn fight.
posted by Zalzidrax at 1:11 PM on June 23, 2010 [1 favorite]

That does not somehow prevent the Tamil Tigers (or whoever) from using the money they would have spent on the dinner to support their terrorist activities.

No one said who was paying for dinner. You made up that tidbit yourself.

So it's OK to meet with terrorists as long as they pay the check, then?

The idea that the United States is repressing foreign terrorist organizations by preventing US citizens from training them and/or giving them material support is rather ridiculous.

Who's worried about repressing terrorists? The worry is that we're repressing charitable organizations, journalism, and legal aid, activities that were otherwise legal and which might otherwise work to reduce the amount of violent terrorism that happens. This gives the government the authority to brand any movement or trend they oppose as "terrorist," making it illegal to even try to find out what they really think, what they really want, or if there's a peaceful way out.
posted by Western Infidels at 1:16 PM on June 23, 2010

So it's OK to meet with terrorists as long as they pay the check, then?

Yes, as long as you don't train them in anything while you're there. I'm glad you understand the difference.


The worry is that we're repressing charitable organizations, journalism, and legal aid, activities that were otherwise legal and which might otherwise work to reduce the amount of violent terrorism that happens.

As long as they don't work with and for terrorist organizations, they're fine. If there is a situation where these organizations are unable to operate unless they work for or with terrorist organizations, that is tragic in many ways. Certainly it is a moral grey area. Do you provide medical aid to needy civilians when it has the tangential effect of aiding an organization that is responsible for tens of thousands of deaths? Congress says no.

At this point we're arguing about the validity/wisdom of the laws themselves, which is a much more complex issue that is separate from the ruling itself, which is relatively simple.
posted by internet fraud detective squad, station number 9 at 1:30 PM on June 23, 2010

First they came for former President Jimmy Carter, and I said nothing because he's history's greatest monster...
posted by homunculus at 2:16 PM on June 23, 2010 [1 favorite]

On Monday, the high court upheld a federal law that outlaws providing “material support”…The law – part of the USA Patriot Act…

Yeah, that’d be your problem right there. The law is pretty broad.
I speculate that the desired effect would not only be in tracking, but in forcing terrorist outfits to speak only to government representatives.
Tough one.

There are always going to be people who will never consort with representatives from certain countries, organizations, etc. And so you’re going to need established back channels (easier than plowing through new snow). And you’re always going to need folks operating from a purely altruistic position whom everyone can more or less trust.

While I might agree that it’s very hard to provide any support, however humane, to a terrorist organization without allowing them greater latitude to commit terrorist acts, I’d call it the cost of doing business for keeping alternative lines of communication open.

Something doesn’t have to be prosecutable to be monitored. And a little compassion can go a long way. It’s good to keep in practice, even if it’s taken advantage of by an enemy, lest one become too intractable and too much like the enemy.

They’re terrorists because they purposefully target innocent people, because they’re innocent, in order to force their perspective on other people. If there’s a wrong side in any form of conflict, that is it. No matter the cause.

In the American revolutionary war the French (and Austrians) had just fought the English and lost territory 10-odd years earlier, so they were glad, as a matter of unofficial policy, to hand grief to the English.
So it's not so much that sort of thing.

And it's different from a war crime, in many cases criminal behavior toward civilians is a symptom of combat stress.
This doesn’t excuse it at all. But it’s a different thing than methodically setting out to kill people nowhere near combat – exactly because they’re away from a combat zone and manifestly intend you no direct harm as with terrorism. (At least in a stricter sense of the word, not the way the term is bandied about in the media)

And I think it’s an important to make that distinction in this case because the ruling in effect limits the protections a civilian away from a combat zone has.
One of which is fostering communication and attempting to engage terrorist groups in order to stop the spread of violence.

While I might stipulate to a certain degree of government oversight to make sure aid was not going to support illegal operations, I see no reason why a civilian should not be allowed to participate in something that ultimately aids their own defense and welfare. And arguably that of all humanity.
I'm pretty gung-ho, but that's not something I want to risk being on the other side of.
posted by Smedleyman at 4:42 PM on June 23, 2010

I haven't read the opinion, BTW, but where does this leave the Red Cross?
posted by Navelgazer at 4:56 PM on June 23, 2010

So, money is speech, which is why campaign finance regulation is not okay. But money isn't speech, because it's okay for Congress to pass laws saying that you can't give it to certain groups.

Actually, the Court essentially said money is speech but that the government has a compelling enough reason to suppress that speech under the circumstances. So much for strict scrutiny on content-based speech restrictions.

I see little recognition of the fact that it is a real problem that some Americans seek to aid terrorist groups that are attacking America.

That's probably why the plaintiffs in this case raised an "as applied" challenge instead of a facial challenge to the material support law. In other words, even if they had won, the Court would only have been saying that the law is invalid when applied to the specific activities they wanted to engage in (essentially teaching individual members of the PKK and the Tamil Tigers how to apply for various forms of aid). As applied to giving money or other goods to any "terrorist" organization, the law would still have been valid.
posted by inara at 4:59 PM on June 23, 2010

Navelgazer, the law challenged in this case defines "material support" as

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials

18 U.S.C. 2339A.

So reading the law literally, if the Red Cross was providing food or money to a "terrorist" organization, it looks like it would be subject to prosecution, but if it was providing medicine, it might be okay.

(Actually, the outcome of Holder v. HLP probably wouldn't have changed that answer.)
posted by inara at 5:20 PM on June 23, 2010

Roberts has a disturbing habit of pulling every question into "compelling interest" territory and then determining how compelling that interest is based on Fox News
posted by Navelgazer at 5:22 PM on June 23, 2010

internet fraud detective squad, station number 9: You can join the Tamil Tigers. It's legal. [...] You simply can't train the Tamil Tigers, give them material aid, or work with/for them.

So if I join the Tamil Tigers my spouse or parents become guilty of providing Tamil Tigers with material aid, surely? (Assuming they don't change their behaviours resolutely). My boss becomes guilty of the same? Elements of the state apparatus if I happen to be on benefits?

You can't claim that this still allows you to join 'terrorist organisations' in any effective way...
posted by Dysk at 5:32 PM on June 23, 2010

How the hell does 'religious materials' rate an exemption? Religious materials are the problem... Okay maybe really, really bad interpretation of religious materials are the problem. Still, though, fighting religious extremism with more/different religion doesn't seem like it'd work.
posted by nerdinexile at 8:13 PM on June 23, 2010

So, when can I expect to see the arrests of oil executives that buy oil from the Saudis?
When can I expect to see the arrests of anyone that contributes money to Wahabists?

Never? Oh. So, this law is only for application against citizens trying to do what they think is right, and not against corporate pigs that are trying to do whatever makes a profit, or foreign royals doing whatever to stay in power. I see.
posted by Goofyy at 3:52 AM on June 24, 2010

including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials

I wonder how they would handle "nutritional supplements"?

It is odd that food is mentioned neither as an example or an exception. And "religious materials"? That might be fun to litigate. Is my jihadist screed religious material? Would this permit the assistance to the conversations going on between the chaplain who gunned down soldiers and his religious mentor?

I feel like we're through the looking glass here. SCOTUS is weaving a particularly pernicious set of rules without regard to coherence or workability.
posted by Mental Wimp at 8:14 AM on June 24, 2010

The first person to be charged under Canada's version of this law, a Sri Lankan refugee, plead guilty last month and got six months in jail. The maximum sentence for this charge is 10 years, and the crown is now appealing.

The admissions of fact document is posted on the NP website here. It's an interesting glimpse into the workings of the RCMP's national security branch.

However, the most controversial aspect of this story is that the group which Mr Thambithurai donated to was not listed as a banned terrorist organization until after his arrest. However, he admitted (prior to obtaining representation) that he realized some of the money would probably trickle down to the Tamil Tigers, and that was enough for the charge.
posted by Pomo at 8:57 AM on June 24, 2010

Viewpoint: Ending wars peacefully just got harder
posted by homunculus at 8:33 AM on June 29, 2010