Thursday, February 11, 2010

Times Profiles Fertig, of Holder v. Humanitarian Law Project

Adam Liptak in today's NYT profiled Ralph Fertig, the president of the Humanitarian Law Project and the moving force behind Holder v. Humanitarian Law Project, the case challenging portions of the Anti-Terrorism and Effective Death Penalty Act under the First Amendment now before the Supreme Court.

The case involves a section of the Act, 18 U.S.C. Sec. 2339B(a)(1), that outlaws the "knowing" provision of "material support or resources" to a "foreign terrorist organization," as determined by the Secretary of State, in exceptionally vague terms.  Thus that section defines "material support or resources" as follows:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, 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.

18 U.S.C. Sec. 2339B(a)(1) (emphasis added).

As Liptak quotes a DOJ attorney in a 2007 oral argument in the case, "Congress wants these organizations to be radioactive."

The Humanitarian Law Project argues in its brief that this provision is unconstitutionally vague and that it is a content-based restriction in violation of the First Amendment.  (The government's brief is here; the Humanitarian Law Project's reply brief is here.)  Oral argument in the case is scheduled for February 23.


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