DOJ Asks Supreme Court to Hear Case on Definitions of "Material Support" of Terrorism

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July 16, 2009

On June 4, 2009 the Department of Justice (DOJ) asked the Supreme Court to review a ruling on three elements of the definition of prohibited material support of terrorism. The Ninth Circuit Court of Appeals ruled that definitions of "training," "expert advice or assistance" derived from specialized knowledge" and "service" are unconstitutionally vague as applied to the Humanitarian Law Project's (HLP) plan to provide human rights and conflict resolution training to two designated terrorist organizations.  HLP filed an opposition brief on July 6, along with a counter-petition asking the court to consider additional issues if it accepts the case. A decision is expected in the fall. If the Supreme Court grant the DOJ petition review will be limited to the narrow issues in the case and not consider whether there should be a humanitarian aid exemption.

Background on Material Support and the HLP Case
DOJ's Petition for Writ of Certiorari
HLP's Opposition Brief and Counter-Petition
Amicus filed

Background on Material Support and the HLP Case

The case began in 1998 when HLP filed a suit challenging the constitutionality of several provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which makes illegal to knowingly provide material support to a designated terrorist organization. HLP wished to "teach persons in conflict situations how to use international law and other nonviolent means to advance human rights." (HLP brief, p. 2) The two groups HLP wishes to train, the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), were designated as terrorist organizations by the Secretary of State, making provision of "material support" to them a crime punishable by up to 15 years in prison or life imprisonment if death results.
AEDPA defines material support as:
any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.18 U.S.C. 2339A(b)(1).
In 2004 Congress passed clarifications in response to lower court decisions in the HLP case. These are:

  • Training, defined as "instruction or teaching designed to impart a specific skill, as opposed to general knowledge" 18 U.S.C. 2339A(b)(2)
  • Expert advice or assistance as "advice or assistance derived from scientific, technical, or other specialized knowledge." 18 U.S.C. 2339A(b)(3)
  • Personnel is prohibited when a "person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction or control." 18 U.S.C. 2339B(h)

Congress also added the term "service" to the list of prohibited support, without defining it. DOJ's petition argues that it refers to an "act done for the benefit of a designated group." (DOJ petition p. 17)
In 2004 Congress also added language to the statute that says, "Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States." (18 U.S.C. 2339B(i))
On Dec. 10, 2007, the U.S. Court of Appeals for the Ninth Circuit found that AEDPA’s definitions of "training," the "other specialized knowledge," portion of "expert advice or assistance," and "service" to be impermissibly vague and unenforceable against HLP. The court said "the term 'training' remains impermissibly vague because it "implicates, and potentially chills, Plaintiffs protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct." The court upheld definitions of "personnel," and the "technical" or "scientific" portions of the definition of "expert advice or assistance, "finding they are clearly defined. In January 2009 the Ninth Circuit denied DOJ's request for a rehearing, setting the stage for its petition to the Supreme Court.

DOJ's Petition for Writ of Certiorari

DOJ argues that the Supreme Court should take the case because the Ninth Circuit rulings "declared parts of an Act of Congress unconstitutionally vague under the Fifth Amendment" and because the material support prohibitions are "a vital part of the Nation's effort to fight international terrorism." It also says the definitions of the three contested terms are not overly vague and "provide fair notice of what is prohibited." (p. 9-10)
To bolster its argument, DOJ points out that there have been 120 prosecutions under the material support statutes since 2001, some involving activities involving involve training, expert advice and assistance or service.  It does not say whether any of the 60 convictions in these cases involved these terms.
DOJ argues for the prohibition on activities that further lawful and nonviolent activities of designated terrorist organizations by citing legislative history of AEDPA. In passing the law Congress found that "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." (18 U.S.C. 2339B note) It also quoted a 1995 House report that said the fungibility of resources means that providing "funds, goods or services" to a terrorist organization will "defray the cost to the terrorist organization of running * * * ostensibly legitimate activities" which "frees an equal sum that can then be spent on terrorist activities." (H.R. Rep. No. 383, 104th Cong., 1st Sess. 81 (1995)
DOJ argues that the contested terms are not vague (p. 13-19) and that the material support statute is aimed at conduct, not speech and "does not contravene the First Amendment." (p. 20-22).
HLP's Opposition Brief and Counter-Petition
HLP argues that the court should decline review of the Ninth Circuit decision because:

  • The lower court did not invalidate the entire statute and declined to issue a nationwide injunction against its enforcement. The ruling only applies to HLP and its proposed activities.
  • There are no conflicting decisions in other U.S. appeals circuits.
  • "The decision itself applies to a unique context involving pure speech that Congress in all likelihood did not intend to criminalize." (p. 11)
  • "It is indisputed that respondents (HLP) intend to support only the lawful and nonviolent activities of these groups." (p. 7)

The brief suggests that the vagueness problem can be resolved by Congress, noting that the "ruling does not foreclose further congressional action; Congress need only be more precise in targeting forms of support that it concludes warrant criminal prohibition, thereby avoiding needless collateral harm to First Amendment protected speech." (p. 15)
HLP argues that the contested provisions are overly vague (p. 17-22), with a central theme that they force groups such as HLP to guess about what is and is not legal. It also argues that the provisions must come under heightened judicial scrutiny because speech and association rights protected by the First Amendment are involved. (p. 22-27) It notes that "[A]s applied here, these provisions would criminalize the teaching of humanitarian and international law, as well as political advocacy." (p. 24)
HLP also filed a counter-petition asking that, in the event the Supreme Court decides to review the case, it also consider the constitutionality of two provisions in the material support law that the Ninth Circuit found were not overly vague: "personnel" and "expert advice or assistance derived from scientific of technical knowledge."
Amicus filed

An amicus Brief supporting DOJ petition was filed by three retired military commanders and the Washington Legal Foundation, the National Defense Committee and the Allied Educational Committee.