CCR Challenges Patriot Act Material Support Law in Supreme Court Today

Today, the Center for Constitutional Rights (CCR)
argued before the U.S. Supreme Court in Holder v. Humanitarian Law
Project, the first case to challenge a portion of the Patriot Act
before the highest court in the land. 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.

Peace and human rights groups like the Carter Center and Human Rights
Watch, academics and the media, and non-partisan and conservative
groups filed amicus briefs in the case, as did a group of former
McCarthy era blacklist victims who argued that the Court should not
allow the government to repeat the mistakes of the McCarthy era in the
name of cutting off material support to organizations the State
Department has labeled "terrorist." That group, which included
individuals and family members of individuals subjected to the
Hollywood blacklists, argued that the "material support" statute
parallels the McCarthy era laws because it imposes criminal penalties
on speech and association - without requiring any proof that the speech
or association is tied to violent or criminal activity.

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 15 years to life. According to
the government, the statute requires no showing that the individual
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.

Said plaintiff Ralph D. Fertig, JD, ACSW, retired U.S.
Administrative Judge and Clinical Associate Professor, University of
Southern California School of Social Work, "I have fought
violence and terrorism all my life, but it is my fear that the
vagueness of the statute will inhibit human rights groups from helping
oppressed people to use non-violence to resolve their conflicts simply
because they may be represented by organizations designated as
terrorist. It would be a great loss if we could no longer work toward
peaceful resolution of conflicts because we fear criminal prosecution
by our own government for trying to help. This seems to work exactly
counter to our interests, and I hope the court will see that."

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.

In a press release by the American Civil Liberties Union which filed
the amicus brief on behalf of the Carter Center, former President Jimmy
Carter said:

"Our work to end violence sometimes requires interacting directly with
groups that have engaged in it. Unfortunately, efforts like ours, and
those of the many other human rights groups who signed onto this brief,
are hindered by the extremely vague 'material support' law that leaves
us guessing whether our work to encourage peace could actually be
considered illegal. Sadly, the law being challenged in court - which is
aimed at putting an end to terrorism - actually threatens the work of
humanitarian groups that share the same goal. We hope the Supreme Court
will overturn this law so that groups like ours can continue the
important work of advancing peace and freedom without concern of
prosecution."

For more information on the case, including briefs and a detailed explanation of material support, visit CCR's legal case page.