First Amendment vs. Aid to Terrorists

The Supreme Court heard arguments this week that the the federal law prohibiting anyone from knowing providing “any service, training, [or] expert advice or assistance” to a designated foreign terrorist organization is too vague to be constitutionally permissible.

The case is Holder v. Humanitarian Law Project, in which groups claiming to be sympathetic to peaceful ends wish to donate money and provide advice for peaceful ends to groups that the US government has classified as terrorist organizations.

The government is defending a very sweeping interpretation of the law: it criminalizes material support as well as advice and counsel. The group’s response is that prohibiting advice is prohibiting speech, and therefore unconstitutional.

Any knee-jerkers may wish to collect themselves for a doozy: this law is part of the feared and fearsome Patriot Act (ooh!! scary!!) and it’s the first time the Patriot Act has come up for Supreme Court review, so far as I can recall.

I think the government’s interpretation is unwise, but permissible.

I’m confused. Are they arguing the law is too vague (advice is too broad a term) or are they claiming banning advice is a prohibition on speech? Or both, of course…

My worry would be that there already is a ban on advice, through conspiracy laws. How is this law extending that, and is it just a catch all to claim that anyone we think supports a designated foreign terrorist organization (DFTO) can be prosecuted.

There’s also the issue of what the expert advice or assistance is in connection with. If Doctors Without Borders, for example, provide medical services in a Hamas run camp, is that a problem under the law? Can a lawyer defend a member of a DFTO?

There’s also not a great history of picking DFTOs. Wasn’t the ANC classified as one for a while or am I making that up?

The power to designate a group as ‘terrorist’ is expansive, with no obvious review and extreme consequences. The law is punitive. I would expect the court to interpret the ancillary laws in a way that limits government power. Except for the 2 ideologues on the bench.

Bolding mine.

Is there any kind of review of or method to challenge the government’s classification?

I can see good reasons to not aid actual terrorist organizations, but an unchecked ability to label any organization as ‘terrorist’ seems really easy to abuse. Even if it’s theoretically possible to challenge a group’s inclusion on this list, it might be difficult/expensive enough that it would unjustly interfere with free speach rights. As a non-US citizen and non-lawyer I assume the court would be balancing between the rights of free speach and the responsiblity to not (assist others) commit violence.

It’s a violation of the first amendment, and it’s too vague as well. As written, this could be used to prosecute somebody for giving a golf lesson to an anti-abortion extremist or serving some neo-nazis a drink in a bar.

Nit pick, as I agree with the main premise, and indeed said so earlier… But the requirement is support for a designated foreign terrorist organization, if Bricker’s OP is right. That would exclude anti-abortion extremists and neo-Nazis.

I don’t know what the standard of intent required is, but I would assume there has to be recklessness or actual knowledge involved. The people who I see falling foul of that are international aid organizations, who will knowingly provide support in areas that may be controlled by DFTOs.

I think the main objection is that, while advising a group how to actually commit terrorist attacks is certainly justifiably illegal, many designated terrorist groups are also active in political or humanitarian spheres that aren’t directly related to blowing people up. If I advise the Tamil Tigers how to set up a school in Sri-Lanka, I could run afowl of the law.

And I do think the challenge should be upheld. The government should have to prove that the support of a terrorist group could reasonably be related to their illegal actions or plans, otherwise the law puts to broad a prohibition on speech and the right to associate.


It’s an “as-applied” challenge to the law, saying that even if the law is permissible in some circumstances, applied to what they want to do, it’s vague. And to the extent that it criminalizes speech, it’s impermissible.

The government’s position is that even providing medical services to help Hamas is not permitted.

Well, the transcript from the oral argument is here. I don’t know what the court will do, but as I read the questions posed from the bench, I can’t really say that I got the feeling there were only two justices leaning against limitation.

Good ol’ Bricker.

That’s where I see a major problem. What is providing medical services to Hamas? I assume treating a person who walks in off the street wouldn’t meet the mens rea standard involved. But if it is a Hamas controlled area, is an NGO setting up a clinic illegal?

Out of interest, which 2 ideologues are these?

Setting up what amounts to corpsman services or a miliatary hospital for Hamas fighters = clearly illegal
Setting up a clinic in Gaza that serves all comers = legal
Setting up a clinic in Gaza that EFFECTIVELY serves Hamas fighters in preference to others = not clear and very dangerous territory for the NGO legally.
Providing money to Hamas to build a hospital = clearly illegal
Building a hospital in cooperation with Hamas authorities = dodgy
Providing engineering advice to Hamas to build a hospital = dodgy

So the whole area is a minefield for NGOs (and others) and I think the whole decision is going to come down to the relative priority you place on fighting terrorists and maintaining freedoms of speech.

Are you sure on that? Based on the oral arguments, what you are doing there is freeing up money Hamas would otherwise have spent on the provision of health care to be used in illegal activities. Which they Justices seemed to frown upon.

After deciding Citizens United on free speech terms the way they did, I can’t see how the Court won’t take the same route in this case. It’s clear why Congress tried to draft this law so broadly and vaguely: they didn’t want to provide easy loopholes. But that same vagueness should ultimately kill it.

The US gov’t itself provides aid in Gaza, so presumably its kosher for NGO’s to do so.

Giving aid and comfort to the enemy? However, I think that would necessitate a rather narrow definition of “the enemy”, no? These “enemies” would need to be clear enemies of the US (eg, Al Qaeda).

Indeed, at oral argument, it seemed conceded that these restrictions would be permissible applied against Al-Qaeda. The petitioners complained about them being applied to the organizations they wish to support.

And the Court seemed reluctant to accept that there were some types of support that were beyond the reach of the government to forbid. Justice Sotomayor, for example, asked if medical training could be prohibited if the training was used to assist terrorist activities, pointing out that training to care for the ill could also be used to care for the wounded after those wounded participated in a terrorist attack.

(I don’t know if she’s an ideologue - Sevastopol?)

Thinking about it some more, its pretty hard to come up with any reasonable interpretation of “freedom of association” that allows the federal government to be able to arbitrarily designate some groups as illegal for people to associate with in more or less any fashion.

I hope the SCOTUS puts up some limits here. The government should have to prove at least some intent or desire to actually aid in terrorist activities before being able to convict someone of merely associating with a terrorist group.

Doesn’t always work that way, unfortunately.