Today, the U.S. Supreme Court issued its decision in Holder v. Humanitarian Law Project, affirming in part and reversing in part the 9th Circuit Court of Appeals’ decision, issued in 2007. [Washington Post; CCR] In a 6-3 decision authored by Chief Justice Roberts, the Court upheld 18 U.S.C. § 2339B(a)(1)—which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization”, as designated by the Secretary of State in accordance with Section 219 of the Immigration and Nationality Act—as applied to the plaintiffs: two individuals and six organizations who sought to engage in otherwise lawful, non-violent activities such as “training PKK [Workers’ Party of Kurdistan] members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka”. Slip Op. at *2. The two designated terrorist organizations at issue were the PKK (Kurdistan Workers’ Party, which has been engaged in a violent separatist struggle against Turkey) and the LTTE (or, ‘Tamil Tigers’, a violent separatist group in Sri Lanka).
The plaintiffs asserted that the statute’s “prohibition on providing four types of material support—’training,’ ‘expert advice or assistance,’ ‘service,’ and ‘personnel’—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association”. Id.
As summarized by the Center for Constitutional Rights (one of the organizations representing the plaintiffs):
Chief Justice Roberts wrote for the majority, reversing the Court of Appeals (which had ruled for plaintiffs) on the vagueness claims, and holding that while strict scrutiny apparently applied, even support in the form of intangibles like human rights training freed up resources for other illegal uses, and that combined with the government’s interest in denying blacklisted groups legitimacy was sufficient to trump the First Amendment interests of the plaintiffs.
The preenforcement challenge that became known as Holder v. Humanitarian Law Project (discussed previously on this blog here and here), originated in two separate complaints, filed in 1998 and 2003, the later complaint specifically questioning the PATRIOT Act’s prohibition on “expert advice or assistance”.
The European Court of Human Rights has considered national laws relating to support for terrorist organizations—the PKK in particular—on several occasions, including in relation to criminal charges against the editor and owner of a Turkish publication for “having disseminated propaganda against the indivisibility of the State by publishing an interview with a PKK leader and a declaration made by four terrorist organizations” (Sürek and Özdemir v. Turkey). See also Chahal v. the United Kingdom, discussing the State’s non-refoulement obligation with regard to an individual suspected of involvement in terrorism.
Other useful resources dealing with human rights in the context of anti-terrorism legislation include the Inter-American Commission on Human Rights’ Report on Terrorism and Human Rights), the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism, the OSCE’s publication Countering Terrorism, Protecting Human Rights, and the Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights. Also see Article 19’s report, The Impact of UK Anti-Terror Laws on Freedom of Expression and Human Rights First’s reporting on the effect of the “material support” ban on refugees (here.)