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Humanitarian aid groups are grappling with the impact the U.S. Supreme Court's recent terrorism decision may have on their activities. The high court Monday upheld parts of the Patriot Act statute prohibiting even humanitarian aid to groups with terrorist ties.
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The decision in Holder vs. Humanitarian Law Project was the high court's sole terrorism-related decision for the 2009-10 term and was the first time in the nine years since the law was passed the court found in favor of the government under the Patriot Act.
The Obama administration a year ago petitioned the Supreme Court, saying the 9th U.S. Circuit Court of Appeals decision striking down the law undermined "a vital part of the nation's effort to fight international terrorism," and asked the court to revive provisions in the law that make it a crime to provide support to foreign terrorist organizations.
The high court must have been mindful of the pressure. Even liberal Justice John Paul Stevens, who has in the past opposed the government in terrorism cases, sided with the majority in an otherwise predictable 6-3 split. Stevens joined with Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas in the opinion written by Chief Justice John Roberts Jr.; Justice Stephen Breyer wrote the dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
The appellate decision, which had ruled parts of the language of the Patriot Act were vague and unconstitutional, was reversed by the high court, which remanded the case for further litigation.
The Supreme Court, although acknowledging the need to clamp down on seemingly innocuous humanitarian efforts to aid the legal activities of officially recognized terrorist organizations, stressed its ruling in this case is narrow.
The court found the "material support" part of the statute is constitutional as applied to the particular kinds of aid the Humanitarian Law Project seeks to provide to foreign terrorist organizations -- but assistance to such organizations may be prohibited only where it is coordinated with or under the control of the terrorist group; political advocacy, independent of any truck with the terrorist group, is protected by law.
Numerous commentators seem to disregard this fine point, but perhaps understandably: the decision begs the question of how organizations or individuals would go about providing humanitarian aid without coordinating with the terrorist groups.
The high court's ruling is likely to affect the operations of humanitarian organizations like the Red Cross, said Simon Schorno, a spokesman for the International Committee of the Red Cross in Washington, adding the organization's lawyers are currently reviewing the case.
"Part of our mandate is to instruct fighters in the principles of international law and rules of war. We don't yet know how the decision will affect our activities. We certainly expect to continue to disseminate humanitarian aid," Schorno said.
The group gets funding from the U.S. State Department's Bureau of Population Migration and Refugees, but the decision is not applicable to governmental groups providing assistance money, spokeswoman Beth Schlachter said.
The majority opinion said it looked beyond the evidence in the case and invoked the expertise of the other two branches of government, saying, "All contributions to foreign terrorist organizations -- even those for seemingly benign purposes -- further those groups' terrorist activities."
The high court further deferred to governmental agencies: "(R)espect for the government's factual conclusions is appropriate in light of the courts' lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence."
The high court rejected the Humanitarian Law Project's argument that, as the material support statute pertains to the freedom of speech rights of one who would assist a terrorist organization, the statute demands proof an aid group or person intended to augment the terrorist organization's violent activities. The court said the statute's language, "knowingly providing material support," means merely that the donor knew about the organization's connection to terrorism and does not require proof that the donor had a specific intent to support the group's illegal activities.
The high court did emphasize, however, that no speech can be punished unless the speaker actually knows of the foreign organization's status as a banned terrorist group. Evidentiary issues regarding such a requirement certainly will abound.
The majority's opinion asserted innocent material support to terrorist organizations "frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups -- legitimacy that makes it easier for those groups to persist, to recruit members and to raise funds -- all of which facilitate more terrorist attacks." The high court quoted a paper on the terrorist organization, Hamas: "Investigators have revealed how terrorist groups systematically conceal their activities behind charitable, social and political fronts."
The dissent strenuously objected to the concept of legal aid affording "legitimacy" to terrorist organizations.
"Speech, association and related activities on behalf of a group will often, perhaps always, help to legitimate that group ... . Once one accepts (the majority's) argument, there is no natural stopping place," Breyer wrote.
