WASHINGTON - The government can prosecute private citizens for giving advice to a
foreign organization - on how to negotiate peace or take its case to
the United Nations, for example - if the group is on the U.S. terrorist
list, the Supreme Court ruled Monday.
In the most important foreign policy and civil liberties case of
their 2009-10 term, the justices ruled 6-3 that a law prohibiting
"material support" of foreign terrorist organizations can be used
against people who claim to be providing only peaceful, humanitarian
Any tangible support - money, legal aid or political advice - "frees
up other resources within the organization that may be put to violent
ends," Chief Justice John Roberts said in the majority opinion.
"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," Roberts said.
Dissenting Justice Stephen Breyer protested that the majority's
interpretation "would deny First Amendment protection to the peaceful
teaching of international human rights law," on the grounds that it
might enable terrorists to conduct sham negotiations.
Those who intend to aid terrorism should be prosecuted, but any
broader use of the law would violate free speech, argued Breyer, whose
dissent was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
The majority included liberal Justice John Paul Stevens as well as the
court's conservatives - Roberts and Justices Antonin Scalia, Anthony
Kennedy, Clarence Thomas and Samuel Alito.
The ruling touched off a furious debate over the government's power
to prevent dissidents from helping blacklisted organizations. The ban
on "material support" for foreign terrorists was signed into law by
President Bill Clinton in 1996 and was expanded in the USA Patriot Act
that President George W. Bush signed in 2001.
Under Monday's decision, "human rights advocates, providing training
and assistance in the nonviolent resolution of disputes, can be
prosecuted as terrorists," said David Cole, lawyer for organizations
and individuals who challenged the law.
The plaintiffs sought to train members of two groups on the State
Department's terrorist list - the Kurdish Workers Party in Turkey and
the Liberation Tigers of Tamil Eelam in Sri Lanka - in peaceful
conflict resolution and advocacy before the United Nations.
Those forms of assistance to such "deadly groups" could lead to
prosecution, the court said Monday, while insisting it was not
restricting free speech. "Plaintiffs may say anything they wish" on
their own behalf, Roberts said.
Civil liberties advocates said they also feared repercussions for
U.S.-based critics of the Israeli government, who might be charged with
aiding Hamas, which Washington has designated as a terrorist group. One
such critic is former President Jimmy Carter, whose private Mideast
diplomatic efforts have included contact with Hamas.
The ruling "threatens our work and the work of many other
peacemaking organizations that must interact directly with groups that
have engaged in violence," said Carter, whose organization filed
arguments with the court.
On the other side, Annemarie McAvoy, a Fordham law professor and
former federal prosecutor, said the court recognized the "reality
factor" of a world in which groups such as al Qaeda thrive on aid
funneled through charities.
"By helping the terrorists, even tangentially, they're freeing up
the terrorists to focus on other things, such as violent attacks,"
During arguments in February, Solicitor General Elena Kagan, now
President Obama's nominee to the court, defended the law and urged a
broad interpretation that would allow prosecution of a U.S. citizen who
filed a legal brief on behalf of a terrorist organization.
"What Congress decided," Kagan told the court, "is that when you
help Hezbollah build homes, you are also helping Hezbollah build
Read the ruling
The ruling in Holder vs. Humanitarian Law Project, 08-1498, can be read at links.sfgate.com/ZJWF.