In Monday's decision in Holder v. Humanitariam Law Project, a divided Supreme Court upheld a provision of the Patriot Act making it a crime for any person knowingly to provide "material support" to a foreign terrorist organization. "Material support" is defined to include not only money, weapons and facilities, but also "advice or assistance."
The plaintiffs, who challenged the constitutionality of the statute under the First Amendment, want to advise several terrorist organizations, which engage in political and humanitarian as well as violent activities, how to use international law to resolve their disputes peacefully, and to engage in political advocacy on behalf of these organizations and their causes.
Can an American citizen who is sympathetic to such an organization deliver a speech or write a blog arguing that the organization's activities are morally defensible? Can an American citizen who supports such an organization send it a book about how best to present its case to the International Court of Justice?
Plaintiffs asserted that the statute violates the First Amendment, because it does not require the government to prove that, in assisting such organizations through otherwise constitutionally protected speech, the speakers specifically intended to encourage or facilitate unlawful activity. Rather, under the statute, it is enough for the government to prove that the speakers knew that the groups engage in violence.
In addressing the First Amendment issue, Chief Justice Roberts observed that "the government's interest in combating terrorism is an urgent objective of the highest order," and that Congress had found that "any form of material support furnished 'to' a foreign terrorist organization" might have "harmful effects," regardless of the intent of the speaker. For example, such "support frees up other resources within the organization that may be put to violent ends" and "helps lend legitimacy" to terrorist groups -- "legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds -- all of which facilitate more terrorist attacks."
Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissented, arguing that the government had "not [made] the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in the communication and advocacy of political ideas and lawful means of achieving political ends."
Breyer questioned how, precisely, the application of this statute to otherwise constitutionally protected speech significantly protects the security of the United States. He challenged Roberts' "freeing-up" argument, noting that there "is no obvious way in which undertaking advocacy for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible." He also dismissed Roberts' "legitimation" argument, noting that any speech that defends a group or its cause can help to legitimate the organization. Indeed, "once one accepts this argument, there is no natural stopping place," for the argument logically applies to anyone who says anything that might seem to defend or support the rights or interests of a terrorist organization.
Chief Justice Roberts conceded that political advocacy that justifies or defends the actions of terrorist organizations is not punishable as "material support" if it is made independently of the group itself. Thus, the logic of Roberts' position seems to rest largely on an unstated analogy to the law of criminal conspiracy, which typically requires that the parties to the conspiracy agree to work together to carry out a criminal enterprise. At the core of that agreement, however, is the specific intent to commit a crime.
Now, nothing in the First Amendment requires the government to prove specific intent when it punishes individuals for knowingly providing weapons or facilities to terrorist organizations, for those acts involve no First Amendment rights. But when individuals support such organization with otherwise constitutionally protected speech, the situation is different.
Indeed, the Supreme Court held fifty years ago in Scales v. United States that the government could not constitutionally punish an individual for knowingly joining the Communist Party, which had "both legal and illegal aims," unless it could prove that the individual specifically intended "to bring about the overthrow of government as speedily as circumstances would permit." That decision was right in 1961, and it should have stated the governing First Amendment principle in HLP, as well. Sadly, Chief Justice Roberts made no serious effort to justify the distinction, other than to say that membership is not the same as material support. That's not exactly a model of principled decision-making.
According to this supreme court ruling, I would be committing a crime by cooperating with my own government. A Thoreau-like act of Civil Disobedience would be appropriate to point out the hypocrisy of this ruling.
The U.S. continues to engage in activities such as these all over the world, for instance its coup of a democratically elected government in Honduras last year. This is suppression of free speech, even when it has the most peaceful intentions (but more importantly when it doesn't meet the intentions of the U.S.), while holding its self to an entirely different standard, so pretty much business as usual in the U.S.
Free peoples, be mindful of this maxim: "Liberty may be gained, but can never be recovered". - Jean-Jacques Rousseau
http://www.fair.org/index.php?page=3895
http://www.fair.org/index.php?page=3893
We need the ability to bring the charge, even if the courts then dismiss the case.
I think it is a reasonable way to prevent America from accepting radical activity on all fronts.
In short, yes, I do want someone charged if they post bomb-making tips for a terrorist, yes I want them arrested if they wire money to Hamas. No, I don't want prosecutors to abuse that ability by charging a nutcase blogger for talking. I see the difference in how they act, not what they say.
That said, I am an ACLU member, and I know well what's at stake, but if we do not recognize the tactics and approaches of our enemies, then we are fools.
http://en.wikipedia.org/wiki/Abu_Ghraib_torture_and_prisoner_abuse
Is it too big a stretch to think that some U.S. prosecutor will use this ruling to go after NGOs like Greenpeace, Amnesty International, or Doctors Without Borders?
And, yes, for me, it is too big a stretch -- Just as I cannot agree with my in-laws who horde ammunition because *gasp* the government might try to take the guns away, I don't agree that the nation will slide down a slippery slope of irrational use of the ability to charge something with support.
Why?
Because I do think that the courts will throw out illegitimate charges, and I think those who bring false charges will not stand long.
However, the problem with this ruling is the inconsistent enforcement. Oliver North hasn't been arrested for his speach, yet he wrote a book supporting terrorist organizations -- they just happened to be the terroist organizations that the U.S. Government liked at the time.
Because nearly everything partisan to one side or another of a conflict will fit within this wide definition of support, it is impossible for this standard to be applied independant of the content of the speach, which is a true and deliberate evisceration of the First Amendment.
And here I thought that content neutral controls on speach were settled law!
Here's what you forgot, "that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Oh wait, maybe that's what you're doing. Vive le Corporation!!!
I google "hamas" and come across a Hamas message board online. A member of Hamas has posted something like "Missile attacks aren't getting us anywhere, it's just giving Israel an excuse to slaughter us. What should we do?"
If I respond with something like "How about unarmed, massive, peaceful demonstrations with international media involvement and extensive video documentation?" should this really be a crime? The Supreme Court just said that it is.
9/11 didn't happen because they hated u for your freedoms....
It happened because they hated ur freedoms.
If America falls, it will be America's fault.
That's why we are hated, not because of our freedoms, but because of the freedoms that we take away from others in the name of the infallible USA.
The fact that this is a conservative 'activist' court is beyond question. What is questionable is just how far the court will go on this agenda. A Muslim friend of mine gently reminded me the other day that these changes have been in the works since the McCarthy era. It took only the right makeup of the court to accomplish what has become the modern version of the Inquisition.
To profess that the 'destruction of this court' is a radical idea with terrorist connotations can be interpreted any way they like now. If America is going to survive as a just society, the present political, judicial, and corporate elites are going to take a short walk to a long rope.
Terrorism is a word that applies whenever 'they' decide. It will soon apply to anyone 'actively' supporting freedom from tyranny. There must be some familiar pattern when the American 'terrorists' were killing English troops. Certainly King George was allowed to imprison anyone defending the 'rebels' right to freedom. So defending anyone accused by the United States of terrorism is a crime, just as it was in 1773. Rights in America are now subject to a court inclined to the uphold the tyranny of the state.
Is the Red Cross guilty of materially supporting terrorism in aiding earthquake victims in Iran or Turkey in a future catastrophe were it to occur?
I think they are seeking a way to outlaw free speech and dissent. It's not going to happen.