The U.S. Supreme Court this week hears arguments on a provision of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 -- or as it is more familiarly known, the Patriot Act.
The Patriot Act was signed into law Oct. 26, 2001, in the wake of the Sept. 11 terrorist attacks. The act, read in conjunction with other federal anti-terrorism laws, presents what some consider a chilling effect on constitutional rights, including the First Amendment guarantees of the freedoms of speech and association.
The Supreme Court will decide whether the parts of the law that make it a crime to give "material support or resources" to government-designated foreign terrorist organizations are unconstitutional.
The case of Holder vs. Humanitarian Law Project involves civil rights groups and individuals halted in helping foreign terrorist organizations achieve their non-violent goals because they say the anti-terrorism laws criminalize even the most innocuous activities carried out with or on behalf of foreign terrorist groups.
Humanitarian Law Project and the others maintain they focus on only the peaceful, productive aspects of the terrorist groups and are able to keep their activities distinct from actions that would aid the violent activities of the groups.
The foreign terrorist organizations with which plaintiff groups are involved include the Kurdistan Workers Party and the Tamil Tigers. The Humanitarian Law Project maintains these groups are involved in activities that help Kurds living in Turkey and Tamils living in Sri Lanka "engage in self-determination."
The day after Tuesday's arguments, Humanitarian Law Project President Ralph D. Fertig turns 80. Fertig, a former judge and University of Southern California social work professor, has a life-long history of civil rights advocacy. His ribs were broken when he was arrested as a freedom rider in Selma, Ala., in 1961.
Fertig does not look like someone who would aid and abet terrorism. But to hear those on his side of the legal battle tell it, because the humanitarian groups aid foreign terrorist organizations in peaceful endeavors, a resumption of their former activities would make them outlaws.
"Violence? Terrorism? Totally repudiate it," Fertig told The New York Times Feb. 10. "My mission would be to work with them on peaceful resolutions of their conflicts, to try to convince them to use non-violent means of protest on the model of Mahatma Gandhi and Martin Luther King."
Holder vs. Humanitarian Law Project challenges the language of the anti-terrorism laws that make it criminal, with punishments of as much as 15 years in jail, to give "material support" to foreign terrorist groups, which, in addition to money and weapons, includes "training," "personnel," "expert advice or assistance" and "service." The Patriot Act amended a 1996 anti-terror law to strengthen the "expert advice and assistance" provision, making it a crime punishable by a 10- to 15-year prison sentence.
Civil rights organizations say the material support language of the Patriot Act is unconstitutionally vague and too broad in that it applies to non-violent activities in addition to terrorism. U.S. Attorney General Eric Holder maintains the terms' meanings are those a "reasonable person of ordinary intelligence" would understand and the anti-terrorism laws, even as applied to Humanitarian Law Project's efforts, are necessary tools in fighting terrorism.
"In fact, all of the (Humanitarian Law Project's) proposed activities fall squarely within the ordinary meaning of the law's ban on supporting a terrorist group. Congress has banned a broad range of material support regardless of whether the support is ostensibly given to assist supposedly lawful activities," said U.S. Solicitor General Elena Kagan in a brief for the government.
"This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating non-violent means to resolve disputes," said David Cole of the Center for Constitutional Rights, which filed an amicus brief on behalf of Humanitarian Law Project. "In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the secretary of state has blacklisted."
A Jan. 20 California Law Review article, "The Preventive Dilemma: A Reply to David Cole," by University of Texas law Professor Robert Chesney, discredits a suggestion of Cole's that the intent element in the anti-terrorism laws should be narrowed to require proof a humanitarian aid group or other similar defendant not only knew it was supporting a foreign terrorist organization, but also that it intended through such support to aid the unlawful goals of the terrorist group.
Under such an amended intent requirement, the only defendants who would be found liable would be those whom the prosecution cannot show affirmatively meant to include support of the foreign terrorist organizations' unlawful activities. While it would still be easy to convict defendants who support groups such as al-Qaida, which uses aid almost exclusively for terrorism, Cole's proposed amendment would protect two types of donors from culpability in aiding an organization like Hamas, which conducts legal activity in addition to terrorism.
Chesney calls one category "hopeful donors": those who provide assistance to a foreign terrorist organization hoping the support will be used only for its lawful objectives; the other donor category is "innocuous donors" who provide particularized support -- children's coloring books, for example -- that could not be used for any purpose other than lawful activity.
Chesney points out it is easy to find holes in a hopeful donor non-liability defense: the support may be used for unlawful purposes, regardless of the donor's wish, and in the case of monetary donations, a gift for a lawful purpose allows terrorist groups to divert the same amount from another source to a terrorist objective.
In the case of both hopeful donors and innocuous donors, says Chesney, the most important reason Cole's proposal is invalid is that aiding a foreign terrorist organization's lawful activities, such as educational and social services, increases the popularity of such groups within the populations they benefit, and enhances that population's perception of the desirability of terrorism.
Abraham H. Foxman, the national director of the Anti-Defamation League, would concur, and posits helping a foreign terrorist organization lifts its reputation in the eyes of the world: "Any material support lent to terrorist organizations -- whether in the form of monetary funding or expert training -- helps enable those groups to maximize their assets and potentially grants them undeserved legitimacy and credibility. There is no inalienable right to provide resources to a foreign terrorist organization. Those that knowingly do so are facilitating terrorism and must be held accountable."
Chesney proposes defendants be held to a sliding scale of culpability for the purposes of the 15-year maximum sentence. Where a defendant is shown to have intended to support a foreign terrorist organization's illegal objectives, the defendant should feel the full wrath of the law at 15 years in prison -- or, as the author suggests, "if not something higher." Where prosecutors are only able to prove a reasonable person would have known that his aid would support terrorism, then the defendant would receive a shorter maximum sentence. Last, if it can only be proved the defendant knew of the foreign terrorist organization's identity, but was truly an innocuous donor, then an even lighter sentence would apply.
Evidentiary problems abound in Chesney's proposal, particularly concerning defendants' testimony in such matters. Defendants would be more inclined to take pains to remain ignorant of the specifics of how the foreign terrorist organizations use donations and other forms of support. Further, the proposal places on the government a burden of proving intent where one currently does not exist. It does, however, propose a middle ground: a reduced sentence for defendants convicted under both the reasonable-person and the innocuous-donor standards.
In light of the 9th U.S. Circuit Court of Appeals ruling in Humanitarian Law Project v. Holder that parts of the anti-terrorism laws were vague and unconstitutional, the Obama administration petitioned the Supreme Court June 4, saying the circuit court undermined "a vital part of the nation's effort to fight international terrorism." It asked the high court to revive provisions in the law that make it a crime to provide support to foreign terrorist organizations.
With a Democratic president having made such an appeal, and with a "patriotic" law championed at the time of its enactment by more than just the nation's conservative constituency, such a middle-ground model might be more ameliorative and might have ended up having more purchase with the Supreme Court than the humanitarian aid groups' freedom of speech and association arguments.