Holder v. Humanitarian Law Project

2010-06-21

Headline: Court upholds federal ban on providing material support to designated foreign terrorist groups, allowing prosecution of coordinated training, expert advice, services, and personnel even when meant to aid only nonviolent activities.

Holding: The Court held that 18 U.S.C. §2339B is constitutional as applied to plaintiffs, permitting prosecution for knowingly providing training, expert advice, services, or personnel coordinated with designated foreign terrorist organizations.

Real World Impact:

Allows prosecution for coordinated training, expert advice, services, or personnel to designated terrorist groups.
Protects independent advocacy, membership, and uncoordinated speech.

Topics: supporting terrorist groups, speech limits, national security, humanitarian aid and advocacy

Summary

Background

The plaintiffs are two U.S. citizens and six domestic organizations, including a human rights group (the Humanitarian Law Project) and Tamil groups. They sought to provide training, legal advice and political advocacy to members of two groups the State Department designated as foreign terrorist organizations, the PKK and the LTTE. They said their work would promote peaceful, nonviolent ends. Congress has made it a crime to “knowingly” provide “material support or resources” to designated foreign terrorist organizations, and Congress clarified terms such as “training,” “expert advice or assistance,” “service,” and “personnel.” The litigation spanned twelve years with multiple rulings and congressional changes.

Reasoning

The Court treated the challenge as an as-applied preenforcement case and held it justiciable. It refused to read the statute to require a separate specific intent to further terrorist acts, saying the text requires knowledge of the organization’s terrorist status instead. The Court rejected plaintiffs’ vagueness claims as applied to their proposed activities. It recognized that speech coordinated with and directed by a designated terrorist group is content-based, applied heightened scrutiny, and concluded that Congress and the Executive had adequate factual basis—finding fungibility of support, lack of organizational “firewalls,” and national security interests—to justify banning coordinated training, expert advice, personnel, and services in these circumstances. The statute does not reach independent advocacy.

Real world impact

The ruling means activists, lawyers, and aid groups cannot provide coordinated training or technical assistance, personnel, or services to designated foreign terrorist groups without fear of prosecution. Independent public advocacy, writing, membership, and uncoordinated assistance remain lawful. The decision leaves other hypothetical applications open and sends many questions about coordination back to lower courts.

Dissents or concurrances

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented. He argued the Government had not shown that peaceful, coordinated teaching and advocacy are fungible with funds or goods, urged interpreting the statute to require knowledge or intent that the speaker’s support would assist terrorist acts, and would have remanded for narrower review.