Civil Liberties

Material Assault on "Material Support" Law

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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.

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  1. “Fungible.”

    Carry on.

  2. Money is fungible.

    Citing the humanitarian works of the Tamil Tigers is as convincing as citing same such of the Provisional IRA (or Real IRA now) or of Hamas.

    Indeed, from what I can see of these complaints, these include some groups arguing that they’re the Sinn Fein to the Tamil Tigers’ IRA, and that they should be allowed to be so.

    Color me unconvinced.

  3. 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.”

    So did the Nazis, so did Communist, so did every other horrifically murderous group in history. Real world organizations aren’t cartoon super villains who do nothing but think about evil all day. They usually have an entire gamut of fairly normal activities like schools and clinics along with their serious bad crazy.

    You can’t separate the good from the bad.

    Sounds like the old dodge of having a “political”/”charitable” wing and a military wing and pretending that money and actions that went into one did not go into the other. We have to look very hard at any aid or comfort given to organizations that use terrorist tactics.

    The thing for an honest person to do is to refuse to help such organization in anyway until they stop using terrorist tactics. The ultimate justice of their cause is not the issue, their use of tactics which are brutal and ultimately uncontrollable is. There isn’t any good to be done by interacting with such organizations on any level. Ostracization is more effective in suppressing terrorism than is engagement

    … 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.

    And has that actually happened or is this just hysterical slippery slope fears? We do have both judges and precedent that apply context to individual cases.

    Given the huge amounts of monetary, material and informational support that has flown out of America to terrorist in the past (we can start with the IRA and move forward) our pre-9/11 standards were clearly to lenient.

    1. “”””Given the huge amounts of monetary, material and informational support that has flown out of America to terrorist in the past (we can start with the IRA and move forward) our pre-9/11 standards were clearly to lenient. “””

      I agree, look at all the money that went to fund Israel. We need to put a stop to all that and round up all the so-called “political”/”charitable” groups such as ADL, AIPAC etc that were involved. We will have to keep Guantanamo open to have room for all those arrested but that is a price we will have to pay [/S]

  4. There should be a provision in the PATRIOT Act to prosecute editors who allow that many errors in three paragraphs.

  5. There should be a provision in the P.A.T.R.I.O.T. Act to prosecute an editor who allows that many errors in 3 paragraphs.

  6. Holy typos, Batman. This looks like I typed it up last night after taking a Tramadol!

    Regarding the article, this sounds an awful lot like the plaintiffs want law enforcement only to pay attention to what is said, and not what is done. I’m pretty sure it doesn’t work like that…

  7. If the government can show that the money goes to a group that engages in terrorism (regardless of its other activities) or to a group that supports terrorism (regardless of its other activities), that’s good enough for me. Money being fungible, and all.

    Of course, the government should publish a definitive and authoritative list of such groups, to give notice of what contributions are illegal. No contribution made before a group is listed would be illegal, all contributions made after a group is listed would be.

  8. A point that needs to be made, very basic–if the entity in question has no vested interest in the US; if the person on question is not a US citizen or legal resident?
    No protections under American law or the US Constitution. Period.

  9. I agree with the commenters above.

    Knowingly assisting a murderer, even in ways unrelated to the crime, still makes you an accessory. It’s not morally acceptable to turn a blind eye to the activities of a mass murderer just because he helps you work in the church soup kitchen in his spare time.

  10. Enjoyed the comments above.

    Can anyone direct me to a real libertarian site?

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