A lawyer for a group of international peace activists urged the US Supreme Court on Tuesday to strike down a portion of an antiterror law that he says threatens to send his clients to prison for urging terror groups to explore nonviolent solutions.
Georgetown University Law Professor David Cole told the justices that a part of the USA Patriot Act barring material support to terrorist organizations was too vague to withstand constitutional scrutiny.
“The government has spent a decade saying our clients cannot advocate for peace,” he said.
The case, Holder v. Humanitarian Law Project, exists at a crossroads between efforts to protect US national security by isolating certain designated terrorist groups and long-established American protections of the rights of free speech and association.
Mr. Cole said instead of threatening to convict peace activists for pushing political solutions on terror groups, the government should focus on prosecuting individuals for conduct that furthers a terrorist organization’s violent and illegal activities.
Cole encountered strong pushback from Justice Antonin Scalia, who said the government was within its power to order a blanket ban on any aid or assistance to terrorists.
Solicitor General Elena Kagan defended the government’s broad interpretation of the material-support statute, saying that Congress intended to block all assistance to terrorists. She called the measure a “vital weapon” in the US fight against terror.
If the provision of expert advice or political strategies helped a terror organization in any way, it would amount to a form of aid in violation of the material-support law, she said. Teaching political skills to a foreign terrorist organization will help it gain international support, and that will strengthen the organization in everything it does, the solicitor general said.
“Congress decided if you help a foreign terrorist organization in legal activities, you also help the foreign terrorist organization in unlawful activities,” Ms. Kagan said.
“This is not a hard case,” she told the justices.
The material-support statute was originally passed in 1996. It was amended and expanded following the Sept. 11 terror attacks, and was later trimmed back in the face of legal challenges. This is the first time the high court has examined the constitutionality of the law.
The law bars the provision of any aid, service, expert advice, or personnel to an organization designated by the US government as a terror group. Violations are punishable by up to 15 years in prison.
Cole represents individuals who want to provide advice about nonviolent political strategies to the Kurdish Workers’ Party (PKK) and to the Liberation Tigers of Tamil Eelam (LTTE). Both are designated terror groups.
During the hour-long argument, justices peppered lawyers for both sides with hypothetical questions. What if a person served as a nurse in a Hamas hospital? What if a lawyer filed a friend-of-the-court brief on behalf of a terror group?
Justice Anthony Kennedy said the US government could prosecute an individual for helping a terror group obtain financial aid in response to a natural disaster such as tsunami. He added that the same person might also be prosecuted for merely telling the group how to obtain such aid on its own.
Justice Kennedy said if terror groups used the advice and got the aid, it might free up other money for bombmaking.
Cole said there had to be a closer link between an individual’s advice and the group’s illegal actions to hold an individual legally accountable.
He threw his own hypothetical back at the justices. Could The New York Times be prosecuted for providing material support to Hamas by publishing the op-ed statement of a Hamas leader, Cole asked.
Kagan said US citizens are free to meet with and even join any terrorist organization. They are free to discuss issues with such groups. But she added, “The discussion must stop when you get to the point of giving valuable advice.”
A decision in the case is expected by June.