CCR Files Opening Brief in First Supreme Court Case to Challenge Patriot Act

Yesterday, the Center for Constitutional Rights (CCR) filed the first brief in Holder v. Humanitarian Law Project,
the first case to challenge a portion of the Patriot Act before the
Supreme Court. The case, originally brought in 1998 on behalf of a
human rights group, a retired federal administrative judge, a doctor,
and several nonprofit groups, challenges the constitutionality of the
law that makes it a crime to provide "material support" to groups the
administration has designated as "terrorist." In particular, the
plaintiffs charge that the law goes too far in making speech advocating
lawful, nonviolent activity a crime. The lower courts have unanimously
declared several provisions of the law - including one added by the
Patriot Act - unconstitutionally vague because they encompass speech
and force citizens to guess as to their meaning.

The case challenges those aspects of the "material support" statute
that criminalize pure speech - specifically the prohibitions on
providing "training," "personnel," "expert advice or assistance," and
"service." Under the law, any speech that falls within these terms -
no matter how peaceable and nonviolent - is a crime if communicated to,
for, or with the collaboration of any organization placed on a list of
"foreign terrorist organizations" maintained by the State Department.
Convictions can result in sentences of fifteen years to life.
According to the government, the statute requires no showing that the
donor intended to further any act of terrorism or violence.

Said CCR Cooperating Attorney David Cole, "This
statute is so sweeping that it treats human rights advocates as
criminal terrorists, and threatens them with 15 years in prison for
advocating nonviolent means to resolve disputes. 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."

The lower courts held unconstitutionally vague the law's prohibition on
the provision of "services," "expert advice or assistance," and
"training," reasoning that these terms could easily encompass a wide
range of lawful speech, such as providing training in international
law. The Obama administration sought Supreme Court review of that
decision.

Plaintiffs in the case include the Humanitarian Law Project (HLP), a
human rights organization in Los Angeles that seeks to provide human
rights advocacy training to the Kurdistan Workers' Party (PKK), the
main Kurdish political party in Turkey, and a former federal
administrative law judge, Ralph Fertig, who is the president of the
HLP. Once the State Department designated the PKK a terrorist
organization, it became a crime for HLP to continue to train the group
in human rights advocacy, even though that assistance is designed to
reduce violence by encouraging peaceful ways of resolving conflict.

"To deny me the right to speak of peace to a group because it is
branded 'terrorist' is to defer the possibility that it could ever be
anything else," said plaintiff Ralph D. Fertig, JD, ACSW,
retired U.S. Administrative Judge and Clinical Associate Professor,
University of Southern California School of Social Work. "And to punish
those who seek peaceful resolutions of conflict is to yield to
violence. Surely the First Amendment must protect against such
government action."

The Patriot Act added a prohibition on the provision of "expert advice
or assistance" to the statute. After earlier court decisions declared
that and other parts of the statute unconstitutional, Congress amended
it in 2004 to try to correct the infirmities. However, the district
court and court of appeals concluded that the prohibitions on
"services," "expert advice and assistance," and "training" remained
unconstitutionally vague. The court of appeals decision the
administration is seeking review of is the sixth ruling from the lower
courts since 1998 finding significant parts of the material support
statute to be unconstitutionally vague.

For more information on the case, including briefs and a detailed explanation of material support, visit https://ccrjustice.org/holder-v-humanitarian-law-project.

Attached Files

• HLP USSCt Opening Brief 11 16 09.pdf