The Constitution Project’s Liberty and Security Committee released a report on Nov. 17, 2009 calling for reform of U.S. laws barring “material support” of terrorism, proposing eight changes to “remedy serious First, Fourth and Fifth Amendment concerns created by existing federal law.” The bipartisan committee of experts, scholars and former government officials said the law should protect “pure speech furthering lawful ends” and due process rights of U.S. organizations that wish to challenge executive branch listing them as a terrorist organization.
In its press release on the report, Constitution Project Senior Counsel Sharon Bradford Franklin said, “Prohibiting assistance to terrorist organizations is an important tool in our nation’s efforts to combat terrorism, but we must also ensure that Americans’ constitutional freedoms are protected, including the rights to free speech and freedom of association. Our current laws are so broad that it could be a criminal act to attempt to convince members of a group designated as ‘terrorist’ to pursue peaceful tactics. The recommendations made in Reforming the Material Support Laws strike the proper balance between combating terrorism and respecting the constitutional rights of all Americans.”
The report was published the day after the Humanitarian Law Project (HLP) filed its brief in the Supreme Court case Holder v. Humanitarian Law Project. In that case HLP is challenging the provisions of material support laws that bar it from engaging in conflict resolution and human rights training for listed terrorist organizations.
After reviewing the legal regime and various (and sometimes inconsistent) definitions of material support in federal law [p. 2-4], the report explains the Constitutional concerns in detail. [p.4-8] It then lists the following recommendations: