On Sept. 30, 2009 the Supreme Court agreed to consider whether several key terms in the definition of prohibited material support of terrorism are unconstitutionally vague. The case, Holder v. Humanitarian Law Project (HLP) will have a one hour oral argument scheduled for the winter of 2010 and a decision is expected by June. Although a decision requiring more specific definitions would greatly benefit many charitable operations, which can be constrained by uncertainty over what the law does or does not allow, the case will not result in a humanitarian exemption to the law. That issue is not before the court. Congress, however, is in a position to address it.
The Supreme Court announcement said the issue to be decided is “Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.”
In June the Department of Justice (DOJ) asked the court to consider a ruling of Ninth Circuit Court of Appeals that invalidated the definitions of training, expert advice or assistance derived from specialized knowledge and service are unconstitutionally vague. It upheld the definitions of personnel and expert advice or assistance derived from scientific of technical knowledge. HLP opposed Supreme Court review, but also filed a cross petition asking that the court consider all contested terms if it accepts that case. The Supreme Court announcement granted that request and consolidated the cases.
HLP is represented by lawyers from the Center for Constitutional Rights, which issued a press release with CCR board member and Georgetown Universtity Law Center professor David Cole saying, “The material support law resurrects guilt by association and makes it a crime for a human rights group in the U.S. to provide human rights training. We don’t make the country safer by criminalizing those who advocate nonviolent means for resolving disputes. The Supreme Court should make clear that only those who intend to further the illegal ends of an organization can be punished.”
DOJ argues that the current definition of material support is a “vital part of the nation’s efforts to fight international terrorism.” Its petition to the Supreme Court said the law has been used in 120 prosecutions since 2001, resulting in 60 convictions. HLP’s reply brief said the government “has made no showing that the limited injunction at issue here undermines its efforts to fight terrorism in any meaningful way. Nor has it cited a single prosecution that was or would have been frustrated by the court of appeals narrow, as-applied ruling.” (The Ninth Circuit ruling was limited to the HLP and the facts of its case.)