Wednesday, June 23, 2010

Implications of Holder v. Humanitarian Law Project

The U.S. Supreme Court issued its decision in Holder v. Humanitarian Law Project, 561 U.S. ___ (June 21, 2010)  earlier this week, rejecting 6-3 plaintiffs' claims that U.S. law prohibiting the knowing provision of "material support or resources" to foreign organizations that engage in terrorist activity consitutes an infringement on free speech and association rights under the First Amendment to the U.S. Constitution, among other constitutional claims.  While the case has more to do with U.S. law than international law, it certainly does have implications for international law and lawyers and international efforts to resolve disputes peacefully.

The U.S. statute at issue defines "material support or resources" in pertinent part to mean "any property, tangible or intangible, or service, including . . . expert advice or assistance."  18 U.S.C. sec. 2339B.  While the litigation was pending, Congress further clarified these terms.  It defined "training" to mean instruction or teaching designed to impart a specific skill, as opposed to general knowledge, and "expert advice or assistance" to be advice or assistance that derived from scientific, technical or other specialized knowledge.  The U.S. Secretary of State is given the authority to designate an entity a "foreign terrorist organization." In this regard, in 1997, the Secretary of State designated the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) as terrorist organizations within the meaning of the statute.  U.S. courts have upheld that designation because both groups have engaged in terrorist attacks, although both groups also engage in political and humanitarian activities. 

Plaintiff Humanitarian Law Project (HLP) is a human rights organization with consultative status at the United Nations. HLP claims that it seeks to facilitate only the lawful, nonviolent purposes of the PKK and LTTE by providing monetary contributions, other tangible aid, legal training and political advocacy, but cannot do so for fear of prosecution under 18 U.S.C. sec. 2339B.  More specifically, HLP would like to train members of these organizations how to use humanitarian and international law to peacefully resolve disputes and to obtain relief from international bodies and engage in political advocacy on behalf of Kurds in Turkey and Tamils in Sri Lanka.

The U.S. Supreme Court stated that HLP's proposed activities would be prohibited by the statute because they involve the provision of expert advice and training that imparts a specific skill.  The Court further stated that HLP is free to engage in independent advocacy, i.e., "to say anything they wish on any topic . . [and to] speak and write freely about the PKK and the LTTE, the governments of Turkey and Sri Lanka, human rights and international law."  Congress has not suppressed pure political speech.  What HLP cannot do is engage in speech under the direction of or in coordination with foreign terrorist organizations.  The Court held that HLP may not train these organizations to use international law to peacefully resolve disputes or provide advice regarding the petitioning of the UN for aid relief.

The Court rejected HLP's argument that its support for these groups would advance only legitimate activities, not terrorism.  In so doing, the Court quoted a Congressional finding that "[F]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct."  Any support provided by HLP "frees up other resources within the organization that may be put to violent ends.  It also importantly helps lend legitimacy to foreign terrorist groups."  The Court also relied on an affidavit from the Executive Branch strongly supporting that Congressional finding.  In response, the dissent charged that the majority did not adequately examine whether provision of the kind of expert and advice at issue would really facilitate the groups illegitimate activities.

While the Court is correct that money is fungible and Congress may certainly prohibit the provision of monetary and other tangible material support to foreign terrorist organizations, its holding prohibiting the provision of expert legal advice and assistance should be troubling to all lawyers, but especially those who practice international law and who work for the peaceful resolution of international disputes.  For a democracy to function and individuals' rights to be protected, persons must be able to seek and obtain legal advice and assistance without government interference.  If the international community wants to end international conflicts and civil wars, we must be willing to allow the parties to the conflict to avail themselves of advice and assistance regarding how to use international processes to peacefully end disputes. 

The Court's holding can probably best be explained by its context - the fight against terrorism, which the Court refers to as "an urgent objective of the highest order," and by the Court's traditional deference to the political branches when it comes to "sensitive and weightly interests of national security and foreign affairs."   However, this author is disappointed that the Court did not find a way to protect a form of speech aimed at faciliating the peaceful resolution of disputes, while still allowing the government to protect against terrorism.


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