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Supreme Court's hard line on supporting terrorists is the right line

The court’s Holder ruling was a crucial victory in the fight against terrorism.

By Juan C. Zarate / July 16, 2010


In Holder v. Humanitarian Law Project, the Supreme Court last month rightly upheld the ban on “material support” for designated foreign terrorist organizations to include seemingly benign support and training. The importance of this ruling lies not just in holding that this preventive criminal provision is constitutional but in the reaffirmation of America’s most basic counterterrorism policy.

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This policy seeks not only to prevent terrorist attacks against US interests, but to delegitimize foreign organizations whose terrorist activities taint all that they do, regardless of the cause. If a group uses terrorism, then anything it does to advance its cause – even if legitimate in isolation – is illegitimate and cannot be supported directly. It is the use of terrorism as a tactic – a non-state organization’s purposeful targeting of noncombatants and civilians with violence for political purposes – that US policy targets.

In rejecting the plaintiff’s arguments, the Court reaffirmed the longstanding US counterterrorism policy predating 9/11 – President Clinton signed it in to law, the Patriot Act expanded it, the Bush administration refined it, and the Obama administration defended it.

The plaintiffs asserted that the material support ban in the law was unconstitutionally vague and violated their First Amendment rights to provide designated foreign terrorist organizations (FTOs) with training and skills in peaceful dispute resolution and international political advocacy. The Court rightly rejected those claims. Though the case was argued through the lens of First and Fifth Amendment rights, the plaintiff’s case was ultimately an assault on the policies that undergird the law.

Chief Judge Roberts and the majority understood this: “At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive that providing material support to a designated foreign terrorist organization – even seemingly benign support – bolsters the terrorist activities of that organization.”

In this context, the constitutional arguments melt away. The law does not prohibit individuals from independently advocating a terrorist group’s cause nor does it ban mere association or membership in an FTO. The law clearly states the government does not need to prove that someone offering material support to an FTO knows this support is going to facilitate violent activity. It is a straightforward policy: supporting or collaborating with FTOs listed by the State Department is off limits, period.

Application of this policy requires quarantining and strangling those non-state organizations that use terrorism as a tactic. This necessarily goes beyond providing money and materiel that facilitate terrorist attacks. It means giving direct support to help any such organization advance its cause.