Antonin Scalia

Mohamed Atta and His Harmonica Quartet

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Yesterday the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project, a case challenging the federal ban on providing "material support" to terrorist groups. In my column last week, I outlined the First Amendment problems with the ban, which defines "material support" so broadly that it criminalizes pure speech promoting legal activity. The oral arguments illustrated the related Fifth Amendment problems with the statute: Some categories of prohibited support, including "service," "training," and "expert advice and assistance," are so vague that people cannot reasonably be expected to know what is covered, a basic requirement of due process.

In a New York Times op-ed piece published on Monday, Rutgers Law School Dean John Farmer notes that vague definition is also a central issue in the Supreme Court case involving "theft of honest services," a federal charge that is often used against allegedly corrupt politicians and businessmen. "In its zeal to criminalize the harder-to-define aspects of deplorable practices like corruption and support for terrorism," Farmer writes, "Congress must avoid undermining the premise of our rule of law: that our laws define clearly the conduct they make criminal." Justice Antonin Scalia has suggested that the statute criminalizing honest services theft fails this test. "Without some coherent limiting principle to define what 'the intangible right of honest services' is,"  he has said, the law "invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate CEOs who engage in any manner of unappealing or unethical conduct."

Yet during yesterday's arguments, Scalia seemed unimpressed by similar concerns about the sweep of the material support law, saying, "The broad scope of this statute is constitutional, and whatever aspects of speech it may run afoul of are minimal." When Justice Sonia Sotomayor observed that "under the definition of this statute, teaching these members [of the Kurdistan Workers' Party] to play the harmonica would be unlawful," Scalia observed that "Mohamed Atta and his harmonica quartet might tour the country and make a lot of money." (I suspect he's right that many people would pay to see the amazing sight of a dead terrorist playing a musical instrument.) By contrast, several other justices perceived definitional problems that could raise due process as well as free speech concerns:

Kennedy: Do you stick with the argument made below that it's unlawful to file an amicus brief?

Stevens: Then it says to me that your opponent's argument here today is prohibited.

Sotomayor: If a terrorist was arrested in the United States from one of these groups, would [the petitioners] be barred under the statute from serving as their attorney in a U.S. court?

Ginsburg: I don't understand the line between meeting with these terrorist organizations, discussing things with them [both of which the law permits, according to the government], and instructing them on how they can pursue their goals through lawful means….I still am having trouble with the line of what they can communicate and what they can't.

Roberts: "Expert advice or assistance"—I don't know sitting down that I could tell you…how to advocate for [a] peaceful…resolution or whatever. Is that expert advice? Is that specialized knowledge?

Alito: Could you explain how someone could be a member of one of these organizations [which the government says is permitted] without providing a service to the organization? Simply by lending one's name as a member, that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.

Even Scalia said he did not understand why "material support" does not include joining a terrorist group. "I would have guessed that you are providing a service or personnel when you make yourself a member of the organization," he said.

Defending the statute, Solicitor General Elena Kagan repeatedly assured the Court that people are still free to say whatever they like, provided they do so independently, without engaging in prohibited "coordination" with a terrorist group. But the petitioners argue that the statute leaves that line fuzzy and that the ban on "service," as explained by the government, seems to encompass independent advocacy. Noting that the statute itself says it should not be read to abridge First Amendment rights, they urge the Court to interpret it as requiring "proof of intent to further the designated organization's illegal activities when applied to pure speech and association."

The transcript of the oral arguments is here (PDF).

NEXT: The Paulpocalypse

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  1. Why doesn’t congress just pass a law that says “Doing bad things is a federal offense punishable by up to life in prison”?

    Then nobody would do bad things and life would be a bowl of cherries.

  2. Defending the statute, Solicitor General Elena Kagan repeatedly assured the Court that people are still free to say whatever they like, provided they do so independently, without engaging in prohibited “coordination” with a terrorist group.

    Oh, that’s the same Kagan that is the next SC nominee? I’m not disturbed at all.

    1. It’s her duty to defend the law and present arguments in favor of it. That’s her job description. It would be interesting to hear her personal views on the law but I doubt will ever hear it.

  3. Scalia is wrong. If there’s a compelling state interest in restricting such speech, there’s obviously a clearer and more specific way of doing so that will not have the effect of improperly chilling protected speech. This is likely a facially invalid law, and probably should be struck down as too damned vague.

    A law like this could work, in theory, along the same lines as conspiracy.

  4. I think Scalia is full of shit on this one. Isn’t anyone who does business or provides a service to one of these organizations by definition “providing material support to terrorism”?

    1. Renting them a meeting hall provides a service. Picking up their trash provides a service. So does providing water, police protection, electricity …

      1. You left out stripping for them, a service that some of the noble, Allah-fearing hijackers partook of before September 11, 2001.

  5. “”Isn’t anyone who does business or provides a service to one of these organizations by definition “providing material support to terrorism”?””

    Material support to terrorism or terrorist. The difference being services like J sub D is pointing out. Garbage removal isn’t supporting terrorism, although you could argue it supports the terrorist. But if we jump on that band wagon, why shouldn’t we hold the airlines responsible for providing the terrorist with a bording pass?

    1. It is a pretty short jump. Suppose I know the group or should have known the group was supporting terrorism and provide them with software services or something anyway? It seems to me that knowingly doing business with a terrorist group is not that much different than writing them a check. And that is fucked up. But it is also where I think this is headed.

      1. “”Suppose I know the group or should have known the group was supporting terrorism and provide them with software services or something anyway? “”

        In that case they should be required to prove how you knew, or should have known, they were a terrorist group. That’s probably way too high of a bar for them.

        1. Not really high. They just have to show the federal register that says the group has been designated a “terrorist group” and I should have known.

          1. How would they prove you should have know? Just saying it doesn’t make it so. Well, shouldn’t.

      2. What if I said, on this board, that I noticed the guards (in public view) at One WTC do a shift change around 3pm. Assuming I had no intention of providing terrorism support, a print out of the page was found in a terrorist’s possession? The feds don’t really care about intent anymore.

  6. ‘Defending the statute, Solicitor General Elena Kagan repeatedly assured the Court that people are still free to say whatever they like, provided they do so independently, without engaging in prohibited “coordination” with a terrorist group.’

    Or a political party, or a corporation.

    1. (this includes non-terroristic parties or corporations, and also includes the Republicans and Democrats)

      1. The Libertarian Party opposes the wars in Iraq and Afghanistan. Such opposition gives aid and comfort to our terrorist enemies in each country. Therefore, the Libertarian Party is in violation of this law and must be punished.

        1. Well, why haven’t those bastards been waterboarded yet? What is this country coming to?

  7. Though I generally, um, well I generally hate Scalia’s guts, he has in the past been tough on overly broad criminal statutes (though these days it’s tough to find a federal criminal statute that isn’t overly broad). Maybe he’ll surprise me on this one. I hope so. But anyone who can cite an episode of “24” as evidence for the efficacy (and therefore, apparently, the constitutionality)of torture has gotta be a little bit suspect. I mean, they’re Moslems. They’re all going to Hell anyway, right?

    1. It is not so much that they are damned to hell as they have trouble passing the Q&A portion of the live for all eternity test.

      Q. Did Abraham pimp out his sister?

      A. No.

      Q. Was Noah a drunk wanker?

      A. No.

      Q. Did Lot sleep with his daughters?

      A. Heavens offend me!

      That is when the trap door falls out from under you.

      1. Oops, I would be clinging with my fingers on the floor after the wording of the first question.

  8. In the future, we will all be terrorists for 15 minutes.

    1. Would that be the 15 minutes of attention you get from a TSA employee?

  9. From my reading of the law, if a legislative body really, really wants something, how can I deny them?

  10. doesn’t that technically mean they aren’t even allowed to have an attorney?

    1. It would.

  11. More Scalia love,

    “”Police can now attempt to question a suspect who asked for a lawyer ? if the person has been released from custody for at least two weeks ? without violating the person’s constitutional rights and without having to repeat the Miranda warning.

    http://news.yahoo.com/s/ap/201…..confession

    This over-turns both lower court rulings.

    “But Justice Antonin Scalia, writing for the majority, said enough time had passed between the first and second interrogations for Shatzer, even though he was being held in prison.”

  12. Kennedy: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

    I think that sums up the absurdity of the law pretty well.

    1. WTF?

  13. Ginsburg: “I would have guessed that you are providing a service or personnel when you make yourself a member of the organization,” he said

    So what service am I providing if I make myself a Fan of Al Qaeda on Facebook?

    1. Providing one more teammate for them for Mafia Wars. The twisted, depraved bastards…

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