February 23, 2010, Washington and New York – Today, the Center for Constitutional Rights (CCR) argued before the U.S. Supreme Court in Holder v. Humanitarian Law Project, the first case to challenge a portion of the Patriot Act before the highest court in the land. The case, originally brought in 1998 on behalf of a human rights group, a retired federal administrative judge, a doctor, and several nonprofit groups, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”  In particular, the plaintiffs charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime.  The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

Peace and human rights groups like the Carter Center and Human Rights Watch, academics and the media, and non-partisan and conservative groups filed amicus briefs in the case, as did a group of former McCarthy era blacklist victims who argued that the Court should not allow the government to repeat the mistakes of the McCarthy era in the name of cutting off material support to organizations the State Department has labeled “terrorist.” That group, which included individuals and family members of individuals subjected to the Hollywood blacklists, argued that the “material support” statute parallels the McCarthy era laws because it imposes criminal penalties on speech and association – without requiring any proof that the speech or association is tied to violent or criminal activity.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.”  Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the State Department. Convictions can result in sentences of 15 years to life.  According to the government, the statute requires no showing that the individual intended to further any act of terrorism or violence.

Said CCR Cooperating Attorney David Cole, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”   

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law.  The Obama administration sought Supreme Court review of that decision.  

Plaintiffs in the case include the Humanitarian Law Project (HLP), a human rights organization in Los Angeles that seeks to provide human rights advocacy training to the Kurdistan Workers’ Party (PKK), the main Kurdish political party in Turkey, and a former federal administrative law judge, Ralph Fertig, who is the president of the HLP. Once the State Department designated the PKK a terrorist organization, it became a crime for HLP to continue to train the group in human rights advocacy, even though that assistance is designed to reduce violence by encouraging peaceful ways of resolving conflict.  

Said plaintiff Ralph D. Fertig, JD, ACSW, retired U.S. Administrative Judge and Clinical Associate Professor, University of Southern California School of Social Work, “I have fought violence and terrorism all my life, but it is my fear that the vagueness of the statute will inhibit human rights groups from helping oppressed people to use non-violence to resolve their conflicts simply because they may be represented by organizations designated as terrorist. It would be a great loss if we could no longer work toward peaceful resolution of conflicts because we fear criminal prosecution by our own government for trying to help. This seems to work exactly counter to our interests, and I hope the court will see that.”

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute.  After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities.  However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

In a press release by the American Civil Liberties Union which filed the amicus brief on behalf of the Carter Center, former President Jimmy Carter said:

“Our work to end violence sometimes requires interacting directly with groups that have engaged in it. Unfortunately, efforts like ours, and those of the many other human rights groups who signed onto this brief, are hindered by the extremely vague 'material support' law that leaves us guessing whether our work to encourage peace could actually be considered illegal. Sadly, the law being challenged in court – which is aimed at putting an end to terrorism – actually threatens the work of humanitarian groups that share the same goal. We hope the Supreme Court will overturn this law so that groups like ours can continue the important work of advancing peace and freedom without concern of prosecution.”

For more information on the case, including briefs and a detailed explanation of material support, visit CCR's legal case page.