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:

  • Congress should amend the definition of “material support” to provide that pure speech may be punished only if it is intended to further illegal conduct.

  • Congress should amend 8 U.S.C. § 1189 to require the responsible federal agency to provide designated organizations that have a presence in the United States with notice of the charges and evidence against them in sufficient detail to ensure that they have a meaningful opportunity to respond to the charges against them. The procedures should provide appropriate protections for classified information.

  •  Congress should amend IEEPA to require that entities subject to designation that have a presence in the United States be afforded notice of the charges and evidence against them in sufficient detail to have a meaningful opportunity to respond to the charges against them. The procedures should provide appropriate protections for classified information.

  • Congress should amend IEEPA to require, consistent with the Fourth Amendment, that the Treasury Department must obtain judicial authorization based on probable cause that an organization with a presence in the United States has violated IEEPA before freezing such an entity’s assets. The statute should include an exception for cases where the government reasonably fears that the assets will be removed from the country unless the assets are immediately frozen, so that there is not sufficient time to obtain a warrant. Any such action should, however, be subject to a probable cause hearing shortly after the action is completed.

  • Congress should carefully craft an amendment to expand the category of support or resources exempt from the definition of material support beyond “medicine or religious materials” to also include such humanitarian aid items as medical services, civilian public health services, and, if provided to noncombatants, food, water, clothing, and shelter.

  • Amend IEEPA or the governing regulations to require that consistent with the Fourth Amendment, the Treasury Department must obtain advance judicial authorization based on probable cause, consistent with the Fourth Amendment, and must also provide timely judicial review, consistent with the Fifth Amendment, of any decision to freeze assets of an organization with a presence in the United States pending investigation. The amendment should also limit the time that such a freeze pending investigation may last.

  • Amend IEEPA or the governing regulations to require the Treasury Department to provide a statement of reasons to an affected entity with a presence in the United States upon subjecting it to a freeze pending investigation or a designation.

  • Amend IEEPA or the governing regulations to authorize a court to permit an entity with a presence in the United States to expend its own funds for reasonable legal expenses in defense of any action taken to freeze its assets pending investigation or to designate it, including at the administrative level and in judicial review thereof.”

    The members of the committee are listed on p. 10-11.