The Court Dabbles in Terrorist McCarthyism

Today the Court came down with a decision in Holder v. Humanitarian Law Project. A lot of writing will be done in the next few days about how this decision distorted the First Amendment's doctrine, so I figured I'd jump in the fray. First, the Times Editorial's synopsis (because they did it for me, so why write my own?):

The case arose after an American human rights group, the Humanitarian Law Project, challenged the law prohibiting “material support” to terror groups, which was defined in the 2001 Patriot Act to include “expert advice or assistance.” The law project wanted to provide advice to two terrorist groups on how to peacefully resolve their disputes and work with the United Nations. The two groups — the Liberation Tigers of Tamil Eelam and the Kurdistan Workers’ Party — have violent histories and their presence on the State Department’s official list of terrorist groups is not in dispute.

But though the law project was actually trying to reduce the violence of the two groups, the court’s opinion, written by Chief Justice John Roberts Jr. on behalf of five other justices, said that did not matter and ruled the project’s efforts illegal. Even peaceful assistance to a terror group can further terrorism, the chief justice wrote, in part by lending them legitimacy and allowing them to pretend to be negotiating while plotting violence.

That's pretty perverse. Talking to terrorist groups, giving them legal advice, is now material support and thus illegal. The Court premised this on the old argument that money is fungible so aiding one section of a group (the humanitarian/political vs. the terrorist) is aiding all the others. While this argument is not obviously true with money (see, e.g., the US tax code, which separates the political non-profits from the apolitical, even if they're the same people), the Court then expanded it saying that by teaching them how to navigate the legal system or to act politically to achieve their goals rather than violently, a person is freeing up resources that the group would have used to now be used on terror. This just makes no sense. If they're acting as a terror group, they're never going to spend resources on teaching themselves how to act peacefully, so someone convincing them to do so is adding a service - it's not all zero sum.

That's really not the worst part of the opinion, however. The worst part is when the Court reasons that allowing services to a group designated as a terrorist organization with give it legitimacy in the eyes of Americans. Think about that - the Court believes that aiding a group will give them, and in turn, their ideas, their methods, legitimacy. What exactly is the First Amendment for if not for this? That argument could clearly have been (and was, as Prof. David Cole points out) applied to Communists, but we all understand now that the core of First Amendment protections has to be to allow ideas to gain legitimacy on their own, assuming that eventually the good ones will win out. Here's they're punishing pure speech and association for the first time in recent memory - they're just replacing Communist with terrorist, and then all principles go out the window.

My typical problem with the Court's free speech jurisprudence is that they are too libertarian, and don't recognize the need for the preservation of a speech forum as well as individual speech rights (see Citizens United), but here they're not being libertarian enough - they're just throwing the entire First Amendment away in the name of terror and national security, as they throw away all our other rights. They're not even really hiding that fact, either:

The Court ended its 36 page opinion with a citation to the Constitution's preamble ("provide for the common defence") and the Federalist No. 41 ("security against foreign danger" as an "avowed and essential object" of the United States).

Ok, so moving on to the free association clause of right of free association protected by the First Amendment (technically it's not it's own clause) - the Court explicitly says that the statute does not ban membership, and precedent says it cannot:

Scales is the case on which plaintiffs most heavily rely, but it is readily distinguishable. That case involved the Smith Act, which prohibited membership in a group advocating the violent overthrow of the government. The Court held that a person could not be convicted under the statute unless he had knowledge of the group’s illegal advocacy and a specific intent to bring about violent overthrow. This action is different: [the material support statute] does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing “material support” to such a group. (citations omitted)

It's hard, however, to see how being a member is not in itself material support - theoretically your presence is increasing their numbers and thus legitimacy, and maybe you're not just standing around meeting with them, but are, I dunno, moving boxes? Answering telephones? What counts? It's just impossible to pull it apart, and the Court never considers that fact. Again, nothing here matters but for national defense.

One last point. In the oral argument, several of the Justices pressed Kagan on a point (she was arguing for the government). Here's a snippet:

JUSTICE KENNEDY: Do you stick with the argument made below that it's unlawful to file an amicus brief?

...

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that's the amicus party, then that indeed would be prohibited. That's the kind of service [that the statute refers to].

This smacks of the absurdity of the Al-Qaeda 7. There, even conservatives condemned the ad attacking lawyers for defending alleged terrorists. Here, our own government's argument is that writing a brief for someone they declare is a terrorist organization is now a felony. So here's the parallel - what if a group wanted to challenge its foreign terrorist organization designation? That's just like someone at Guantanamo wanting a habeas hearing - they're both just challenging the government's assertion that they're terrorists! Yet the Court, by siding with Kagan here, has decreed that in the former situation, you get 15 years in federal prison.

When does it end? When can we become sane again as a country? Anyway, for anyone who wants more now, go read the debate over at the Times, and you can decide for yourself how strong or weak some of the arguments are that the Court seemed to love.