A ruling by the Supreme Court on June 21 is worrying civil liberties activists. They say it appears to threaten rights of speech and association that had been considered firm since the failed prosecution of Communist Party members during the McCarthy era.

At stake was the interpretation by the Bush and Obama administrations of a 1996 law which authorizes the State Department to officially “designate” foreign organizations as terrorist entities, and the USA Patriot Act which criminalizes all material aid to such organizations, including providing them with vaguely defined “services” and “expert advice.”

The case is Holder v. Humanitarian Law Project, and all its major documents can be read on the website of the Center for Constitutional Rights. http://ccrjustice.org

The current State Department list of “Foreign Terrorist Organizations” (FTOs) can be read here. http://www.state.gov/s/ct/rls/other/des/123085.htm “Terrorism” is defined in a vague and highly politicized manner. For example, terrorists based in the United States who attack countries like Cuba are not covered.

The New York-based Center for Constitutional Rights, representing the Humanitarian Law Project and others, had challenged the “services” and “expert advice” aspect of the legislation as violating constitutional freedoms. The plaintiffs had won in lower courts but the government appealed to the Supreme Court, where its position was argued by Solicitor-General Kagan, now nominated to the court by President Obama.

The plaintiffs had alleged that the phrasing of the USA Patriot Act on the issue of material aid to terrorists was unconstitutional because of the vagueness of the definition of “material aid” and because it presents a danger of violations of free speech and due process guarantees. The definition of “material aid” could, for example, criminalize efforts by nongovernmental organizations to train groups like the Kurdish Workers’ Party, PKK, to take their disputes with the Turkish government to the United Nations or other international bodies, thereby reducing or eliminating their reliance on violence.

Other real and hypothetical examples were given in the plaintiffs’ briefs and in amicus curiae (“friend of the court”) briefs submitted by the ACLU, former President Jimmy Carter and others. Carter has worked to bring about peaceful resolutions to conflicts in southern Lebanon. The former president argued that achieving peaceful solutions to Lebanon’s problems would be impossible without involving Hezbollah, a designated FTO. According to the Supreme Court’s decision, Carter could be prosecuted and face up to life imprisonment for doing this, in a worst-case scenario

The government argued that freedom of speech is not at risk because the law does not penalize independent advocacy in favor of groups like Hezbollah or PKK, only actions that coordinate with them in providing them with expert advice. The court majority, however, said that what is at stake is indeed speech, but that it was legitimate to prohibit this kind of speech.

A big part of the case revolved around precedents set in the 1950s and 1960s by court rulings on efforts of the federal government to criminalize membership in the Communist Party USA. In that era of Cold War and McCarthy hysteria, the government had waged a campaign claiming that the CPUSA had violent aims and was involved in illegal acts. The federal courts nevertheless ruled that it was unconstitutional to prosecute individual Communists for mere membership in the party or for either advocacy or material support of the part of its program that the courts considered “legal.” And to be convicted, a person would have to be shown to have consciously contributed to the (mostly imaginary) illegal aspect of the Party’s activities.

At the time, this was seen as a major triumph for constitutional rights.

In this month’s decision, Chief Justice John Roberts, in the majority opinion (supported by Justices Alito, Thomas, Stevens, Kennedy and Scalia), ruled that even if U.S. persons thought their advice was helping to turn a designated foreign terrorist organization toward peaceful means of attaining its ends, that is, away from terrorism, this would be considered illegal under the statute because the foreign organization could be lying, or might change its mind later. Further, the majority opinion argued that by steering terrorist groups away from violent methods, one would be “legitimizing” them and that would clash with legitimate U.S. foreign policy objectives.

Justice Breyer’s dissent (supported by Justices Sotomayor and Ginsburg) was particularly caustic:

“What is one to say about these arguments – arguments that would deny First Amendment protection to the peaceful teaching of human rights law on the ground that a little knowledge about the “international legal system” is too dangerous a thing, that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try?”

The ruling remands the case back to the lower courts for reconsideration.

In reaction to the ruling, David Cole, cooperating attorney with the Center for Constitutional Rights in the litigation, said, “We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime.”




Emile Schepers
Emile Schepers

Emile Schepers is a veteran civil and immigrant rights activist. Born in South Africa, he has a doctorate in cultural anthropology from Northwestern University. He is active in the struggle for immigrant rights, in solidarity with the Cuban Revolution and a number of other issues. He writes from Northern Virginia.