Supreme Court Observations: Holder v. Humanitarian Law Project

Last week, the U.S. Supreme Court rejected a First Amendment challenge to the federal law that prohibits the provision of “material support” to groups that have been designated as “foreign terrorist organizations” (FTOs) by the Justice Department.  There are 44 such groups, including al Qaeda, Hamas, and Hezbollah. 

Human rights groups have been critical of the Court’s decision.  They view the law as an obstacle to constructive dialogue between Americans and foreign groups that might be reasoned with and that might eventually become our friends.  The authors of an op-ed that ran on June 29 in The New York Times, “Why We Talk to Terrorists,” argue that “to assume that it is invariably wrong to engage any of these groups is a grave mistake,” and that “hindering all informed interaction with terrorist groups will harm both our national security and the prospects for peace in the world’s seemingly intractable conflicts.”  Ralph Fertig, the man who spearheaded the legal challenge to the statute, argues that he is being prevented from meeting with Kurdish leaders – whose affiliation with any FTOs is unknown to him – to teach them how to press their human rights claims before the United Nations.

All such criticisms are based on a misunderstanding of the law, 18 U.S.C. § 2339B, which makes it a crime to “knowingly provide material support or resources” to an FTO.  The law is routinely and uncontroversially used to prosecute Americans who provide money and valuable supplies to FTOs.  But the government has made clear that the law also applies to those whose “material support” takes the form of speech – e.g., “training” the FTO on how to build a bomb or how to further the FTOs political objectives by, for example, negotiating a peace treaty.  So long as the speech is knowingly directed to the FTO’s members and has “material” value to them, it is prohibited.  It is § 2339B’s prohibitions on speech to which human rights activists object.

But those objections largely miss the mark because they are based on a wildly misinformed reading of the statute.  The authors of The New York Times piece argue that world peace is advanced if Americans are permitted to maintain lines of communication with FTOs.  Their argument may be correct, but it has nothing to do with § 2339B.  The statute does not prevent Americans from sitting down and talking with the leaders of FTOs, listening to their complaints, or urging them to seek peaceful resolution of their grievances.  The government has made clear that none of those activities constitute “material support” of an FTO within the meaning of § 2339B.  Indeed, the statute permits Americans to publicly affiliate with an FTO, enroll as a member, or independently advocate on behalf of the FTO.  And one is permitted to provide material support to members of an oppressed minority even if they happen to be leaders of an FTO, so long as one is unaware of that affiliation and thus is not “knowingly” providing the support “to” an FTO.  In short, despite the concerns expressed by the authors of The New York Times piece, nothing in the statute prevents peace activists from reaching out to FTOs and speaking out in favor of reconciliation between armed enemies.

Section 2339B serves important national security interests, as WLF explained in detail in an amicus brief it filed in the Supreme Court on behalf of a group of retired generals and admirals.  Congress has reasonably determined that any sort of material support provided to FTOs, even support that is expressive in nature and is ostensibly provided to further the FTO’s humanitarian activities, strengthens the FTO and thus increases the threat of terrorism.  Some may disagree with that determination.  But they should not be permitted to bolster their criticisms of § 2339B by making outlandish claims regarding the breadth of the statute.  It is inapplicable to the vast majority of the expressive activity in which critics assert they wish to engage.

2 thoughts on “Supreme Court Observations: Holder v. Humanitarian Law Project

  1. Pingback: SCOTUSblog » Friday round-up

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