Material Support of Foreign Terrorist Organizations vs. Freedom of Speech and Association
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
Founded in 1974, the Partiya Karkeran Kurdistan (PKK) was established as a Marxist-Leninist insurgent group composed of Turkish Kurds who formed to seek Kurdish independence from Turkey. By the late 1990s the group had had morphed from a rural-based insurgent group into a full-fledged terrorist organization, sometimes using suicide bombings on civilian targets.
Founded in 1976, the Liberation Tigers of Tamil Eelam (LTTE) became one of the most lethal and well organized terrorist groups in the world that, beginning in 1983, waged an armed campaign in Sri Lanka to establish a separate Tamil homeland before the group was defeated by the Sri Lanka army in May 2009. The LTTE pioneered the use of suicide belts.
Both groups are designated as Foreign Terrorist Organizations by the U.S Department of State.
The evidence is clear that the PKK and LTTE have engaged in terrorist activities, including suicide bombings, which have harmed innocent civilians. It was these kinds of international terrorist acts and the 1995 Oklahoma City bombing that prompted the U.S. Congress to enact the Anti-Terrorism and Effective Death Penalty Act (AEDPA) which was signed into law by former President Bill Clinton in April 1996.
One of the controversial components of AEDPA was codified at 18 U.S.C. § 2339B which makes it a federal crime to provide “material support or resources to designated foreign terrorist organizations.” While Congress has amended the definition of “material support or resources” a number of times since 1996, Subsection 2339A (b) (1) offers the current definition:
“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.”
Another component of AEDPA, the authority to designate an entity as a “foreign terrorist organization,” was codified at 8 U.S.C. §§ 1189(a) (1), (d) (4). This authority rests with the Secretary of State who, after consultation with the Secretary of Treasury and Attorney General, must determine whether the organization is foreign, engages in “terrorist activity” or “terrorism,” and “threatens the security of United States nationals or the national security of the United States.”
In 1997 former Secretary of State Madeleine K. Albright designated 30 groups as foreign terrorist organizations. Two of the groups on that list were PKK and LTTE.
The Humanitarian Law Project, which was founded in 1985 and is “dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights law and humanitarian law,” filed a lawsuit in 1998 challenging the “material support or resources” provisions of § 2339B. The lawsuit’s long convoluted history found its way to the U.S. Supreme Court and, on June 21, 2010, that court in Holder v. Humanitarian Law Project upheld the constitutionality of the terrorism statute.
The Humanitarian Law Project (HLP) filed its lawsuit because, according to the group, § 2339B prevented it from providing support for the humanitarian and political activities of PKK. This included: (1) “training members of PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engage in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach PKK members how to petition various representative bodies such as the United Nations for relief.” HLP also charged that § 2339B prevented it from providing monetary contributions, legal training, and political advocacy for the LTTE. This included: (1) “train members of LTTE to present claims for tsunami-related aid to mediators and international bodies”; (2) “offer their legal expertise in negotiating peace agreements between LTTE and the Sri Lankan government;” and (3) “engage in political advocacy on behalf of Tamils who live in Sri Lanka.”
The HLP based its lawsuit on three constitutional challenges to § 2339B: 1) it violated their First Amendment freedom of speech; and 2) it violated their First Amendment freedom of association. These two challenges were premised on the theory that § 2339B criminalized their support to PKK and LTTE without the Government having to prove that HLP had a specific intent to further the unlawful ends of those groups. Finally, HLP challenged § 2339B as being unconstitutionally vague.
A central issue in the case initially focused on exactly what constituted “personnel” and training.” While the lawsuit was pending, and in the wake of the 9/11 terror attacks on the Twin Towers in New York, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act) which amended the “material support or resources” provision of § 2339B to include the term “expert advice or assistance.” The HLP filed a second lawsuit, which was ultimately consolidated with the first one, challenging this amended provision as well.
In 2004, Congress once again amended the “material support or resources” provisions of § 2339B with the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). This statute clarified the “mental state” necessary to violate § 2339B by requiring knowledge of a group’s designation as a terrorist organization or its commission of terrorist acts before criminal charges could be brought. IRTPA also added the term “service” to the definition of “material support or resources” and defined “training” to mean “instruction or teaching designed to support a specific skill, as opposed to general knowledge. IRTPA also defined “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge.” And finally IRTPA clarified the reach of the term “personnel” by providing:
“No person shall be prosecuted under [§ 2339B] in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”
THE VAGUENESS ISSUE
The Supreme Court had before it four terms central to HLR’s argument that § 2339B is impermissibly vague: “training,” “expert advice or assistance,” “services,” and “personnel.” The court two years ago in United States v. Williams held a conviction under a statute that is unconstitutionally vague does not comport with the Due Process Clause of the Fifth Amendment because it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”
The Supreme Court pointed out that since 2001 the Government has charged approximately 150 persons with violating the provisions of § 2339B and convicted approximately half of them. Since HLP did not challenge the Government’s enforcement discretion of the statute, the court addressed only the issue whether § 2339B provides a person of ordinary intelligence with “fair notice” of what is unlawful. The court began its analysis with the observation that the four terms in question—“training,” “expert advice or assistance,” “service,” and “personnel”—did not require a subjective analysis because Congress has narrowly defined these terms over time. The Court added:
“Much of the activities in which plaintiffs seek to engage readily fall within the scope of the terms ‘training’ and ‘expert advice or assistance.’ Plaintiffs want to ‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,’ and ‘teach PKK members how to petition various representative bodies such as the United Nations for relief.’ A person of ordinary intelligence would understand the instruction on resolving disputes through international law falls within the statute’s definition of ‘training’ because it imparts a ‘specific skill,’ not ‘general knowledge.’ Plaintiffs’ activities also fall comfortably within the scope of ‘expert advice or assistance’: A reasonable person would recognize that teaching the PKK how to petition for humanitarian relief before the United Nations involves advice derived from, as the statute puts it, ‘specialized knowledge.’ In fact, the plaintiffs themselves have repeatedly used the terms ‘training’ and ‘expert advice’ throughout this litigation to describe their own proposed activities, demonstrating that these common terms readily and naturally cover plaintiff’s conduct.
“Plaintiffs respond by pointing to hypothetical situations designed to test the limits of ‘training’ and ‘expert advice or assistance.’ They argue that the statutory definitions of these terms use words of degree—like ‘specific,’ general,’ and ‘specialized’—and that is difficult to apply those definitions in particular cases … Whatever force these arguments might have in the abstract, they are beside the point here. Plaintiffs do not propose to teach a course on geography, and cannot seek refuge in imaginary cases that straddle the boundary between ‘specific skills’ and ‘general knowledge.’”
The HLP had argued that it wanted to provide “political advocacy” for Kurds living in Turkey and Tamils living in Sri Lanka but because § 2339B is so vague the group hesitated because it was concerned that this would constitute providing “personnel” or “service[s]” prohibited by the statute. The Court addressed these concerns as follows:
“As for ‘personnel,’ Congress enacted a limiting definition in IRTPA that answers plaintiffs’ vagueness concerns. Providing material support that constitutes ‘personnel’ is defined as knowingly providing a person ‘to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization.’ The statute makes clear that ‘personnel’ does not cover independent advocacy: ‘Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.’
“’[S]ervice’ similarly refers to concerted activity, not independent advocacy … The statute prohibits providing service ‘to a foreign terrorist organization.’ The use of the word ‘to’ indicates a connection between the service and the foreign group. We think a person of ordinary intelligence would understand that independently advocating for a cause is different from providing a service to a group that is advocating for that cause.”
THE FIRST AMENDMENT ISSUES
With respect to the speech issue, the Court pointed out that under § 2339B the “plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: ‘The statute does not prohibit independent advocacy or expression of any kind.’ Section 2339B also ‘does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so. Congress has not, therefore, sought to suppress ideas or opinions in the form of ‘pure political speech,’ which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the duration of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.”
With respect to the association issue, the HLP had argued that merely associating with the PKK and LTTE would be criminal under § 2339B. The court brushed aside this claim by pointing out that the statute “does not penalize the mere association with a foreign terrorist organization.” The Supreme Court embraced a finding by the Ninth Circuit Court of Appeals that § 2339B did not prohibit membership in a designated terrorist organization or the vigorous support and promotion of the political goals of the group. The high court concluded its opinion, written by Chief Justice John Roberts, with the following historical admonition:
“The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to ‘provide for the common defence.’ As Madison explained, ‘[s]ecurity against foreign danger is … an avowed and essential object of the American Union.’ We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.”
In his dissent, joined by Justices Ginsburg and Sotomayor, Justice Stephen Breyer stated:
In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in [the training of organizations to use nonviolent means to achieve their goals]. We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies.
Foreign terrorists have accomplished far more than they intended. They forced this nation to not only combat acts of terrorism but to alter its constitutional landscape in an effort to prevent those terrible deeds. A fight is confronted, it is waged on terms set by the combatants, and it is won or lost on a mixture of skill and misfortune. But the prevention of a fight entails suspicion and paranoia because you never know who the enemy really is. Madison talked about “foreign danger” but purely from a military point of view—a potential invading force. That is not the “danger” presented by terrorism: it could be a foreign national or the neighbor next door. When everyone is a potential suspect, freedom of speech and association are inevitably restricted.
In New York, Tennessee, and a host of other communities, protests are cropping up against Muslims building their places of worship. Our fear and paranoia has grown to the extent that we see “foreign danger” in other peoples’ religion—people who have been our good neighbors for years. This same fear has led our citizenry to abrogate many of its traditionally cherished, and constitutionally protected, freedoms; privacy, searches, associations and speech.
So do we really need statutes like § 2339B? Probably so, but they should be narrowly tailored and very specific in defining the actions they seek to prevent. Unfortunately, with the creation of such statutes, and our fear-inspired acquiescence, we become less of a free nation, less of a free people. And while this drastic change may arguable be necessary for our safety and survival as a nation and a people, the bitter taste it leaves going down is not easy to accept. It is incumbent on groups like Humanitarian Law Project and the American Civil Liberties Union to stand up when they feel the government has over-stepped its Constitutionally imposed bounds, otherwise a slippery slope to self imposed fascism is just around the corner. While we might not agree with each stand these groups take, we salute their fortitude and courage to stand.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair