Civil Liberties

Material Assault on "Material Support" Law


The Constitution Project today released a study in which "a bipartisan coalition of former government officials, scholars, practitioners, and other experts serving on the Constitution Project's Liberty and Security Committee have proposed reforms to federal laws prohibiting material support for terrorism that are needed to ensure constitutional liberties."

As the press release notes, "The recommendations come at an especially critical time, as yesterday the Humanitarian Law Project filed its opening brief in the U.S. Supreme Court in Holder v. Humanitarian Law Project, challenging the application of federal material support laws to punish pure speech that seeks to further lawful, non-violent ends."

Highlights from the press release summary of the paper, which:

calls for narrowing the scope of conduct prohibited by the material support statute, so that pure speech furthering lawful ends would not be considered criminal conduct. As the statement notes:

Our government should have the tools needed to apprehend and punish not just terrorist leaders, but also those who work to facilitate and enable acts of terrorism. But in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms.

The report also calls for reforms to protect the due process rights of organizations in the United States that are designated as "terrorist organizations" to challenge these executive branch decisions in court.

The full report on reforming material support laws from the Constitution Project.

The amazing Scotusblog sums up what's at stake in the ongoing Supreme Court Humanitarian Law Project cases in which material support is a material issue. To quote:

The six groups and individuals involved in the cases "seek to speak to, for, and in coordination with" two organizations that are on the U.S. list of terrorist organizations.  They are the Kurdistan Workers'; Party and the Liberation Tigers of Tamil Eelam.   Those two groups, the brief said, "engage in a wide range of lawful, nonviolent activity," and the groups and individuals in the case "seek to further only such activity."

Thus, the brief urged the Justices to rule that the ban on "material support" be limited, at most, to "financial or other intangib le support to terrorist organizations," and to "advocating or teahing criminal or violent activity."   What these six organizations and two individual do, and wnat to resume doing, they argued, is "pure political speech" that includes "teaching and advocating the use of intgernational law and other nonviolent means to reduce conflict, advance human rights, and promote peace."

Words or phrases written into the Patriot Act — "training," "expert advice or assistance," "service," or "personnel" — are so vague in their reach, the  brief said, that the government treats them as making it a crime "to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to tpseak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English."  It added: "The government has made clear that it considers plaintiffs' intended actvitieis criminally proscribed by the challenged statutory terms."

The full brief from the Humanitarian Law Project.

Lots of past Reason articles regarding the Patriot Act's material support provisions.