Holder v. Humanitarian Law Project

Summary: The US Supreme Court upheld, in June 2010, the government's right to bar advising designated terrorist organizations, including advice on negotiating peacefully. In the case of Holder v. Humanitarian Law Project (and its mirror, Humanitarian Law Project v. Holder), the justices voted 6-3 in cases involving two groups designated terrorist groups in 1997—the Kurdistan Workers' Party (PKK) in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka. Chief Justice John Roberts said advising terrorist groups on negotiating peaceful settlements could free assets that might then be diverted to terrorism. This outweighed the rights of free speech of groups providing such advice. The case, one in a series of cases sparked by the War on Terrorism, was a relatively rare victory for the federal government in its efforts to combat terrorist groups.

On June 21, 2010, the Supreme Court, by a 6-3 vote, upheld the government's right to bar advising designated terrorist organizations, even if that was advice about negotiating peacefully. The majority opinion, written by Chief Justice John Roberts, ruled that by providing terrorist organizations with either training or advice on how to promote their political goals peacefully (in this case, the Kurdistan Workers' Party, or PKK, in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka) could free the organization's resources for violent purposes and that the danger posed by such violence outweighed the rights of free speech by the groups providing such advice.

In the PKK's case, professor and retired US administrative law judge Ralph Fertig argued that instructing a terrorist group, the PKK, on advancing its goals through peaceful means (international law) was a protected form of free speech. The court ruled that it was not. Instead, the court ruled Congress had concluded that such groups were "so tainted by their criminal conduct that any contribution to such an organization facilitates their conduct" because it "frees up other resources" helpful for violent ends and "helps lend legitimacy" to such groups. In its decision, the Court upheld this conclusion.

The other five justices supporting this opinion were John Paul Stevens, Antonin Scalia, Clarence Thomas, Anthony M. Kennedy, and Samuel A. Alito Jr.

In dissent, Justice Stephen Breyer, joined by Justices Ruth Ginsburg and Sonia Sotomayor, said the government should have provided specific evidence, "rather than general assertion," that advising on peaceful negotiating would have harmed national security.

The case was argued on behalf of the administration of President Barack Obama by then-Solicitor General Elena Kagan before she was nominated to be on the Supreme Court.

The decision combined cases filed by both sides of the issue: Holder v. Humanitarian Law Project, 08-1498, and Humanitarian Law Project v. Holder, 09-89.

Key Findings of Holder v. Humanitarian Law Project:

Even if support were meant for peaceful purposes, it could free resources for other activities. "Such support frees up other resources within the organization that may be put to violent ends," Chief Justice Roberts wrote in the majority opinion.

Congress and the president are "uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not."

The Obama administration argued (subsequent Supreme Court nominee Elena Kagan, as solicitor general, appeared before the court) that the law barring material support to terrorist organizations had been used more than 150 times since September 11, 2001, and resulted in seventy-five convictions.

Dissenting Justice Justice Stephen Breyer said that "not even the 'serious and deadly problem' of international terrorism can require automatic forfeiture of First Amendment rights."

Facts of the Case

The case began in 1998 with a challenge on the rights of free speech by humanitarian groups of a law barring "material support" to foreign terrorist organizations, including legal advice. The Humanitarian Law Project (HLP) only questioned whether they could risk prosecution for discussing non-violent activities.

The plaintiffs in the case were two US citizens—Ralph Fertig, president of Humanitarian Law Project (HLP), and Nagalingam Jeyalingam, a naturalized American citizen born in Sri Lanka—plus six US organizations—the HLP, which consults with the United Nations, and five nonprofit groups dedicated to the interests of persons of Tamil descent.

In 1997, the United States designated thirty organizations as terrorist groups, including the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE; Tamil Tigers). The Humanitarian Law Project, founded in 1985, is a non-profit organization "dedicated to protecting human rights and promoting the peaceful resolution of conflict by using established international human rights laws and humanitarian law." Its leader is Ralph Fertig, a retired judge and professor of social work since 2003 at the University of Southern California School of Social Work.

Fertig's organization argued for training the Kurdistan Party in bringing complaints to the United Nations and conducting peace negotiations. These activities stopped when the PKK was designated a terrorist organization. A similar desire to help the Tamil Tigers was also halted the same year for the same reason. (The Tamil Tigers challenged their terror designation in court but lost; the PKK did not challenge the designation by the government. Designation as a terrorist organization means that American citizens may not provide "material support or resources" and prevents travel to the United States by such a group, as well as freezing its assets inside the United States or jurisdictions.)

The plaintiffs argued on two grounds: (1) that the law violated their Constitutional rights to speech and freedom of association because it made criminal the provision of material support to the PKK and the LTTE without requiring the government to prove a plaintiffs' specific intent to further the unlawful ends of those organizations; and (2) that the statute was unconstitutionally vague. As summarized by Justice Roberts, the Humanitarian Law Project argued that its activities comprised training the PKK on how to use humanitarian and international law to peacefully resolve disputes, engaging in political advocacy on behalf of ethnic Kurds in Turkey, and teaching PKK members how to petition representative bodies such as the United Nations. The plaintiffs involved with the Tamils, the justice said, argued that they were engaged in training members of the LTTE to present claims for tsunami-related aid, offering their legal expertise in negotiating peace agreements with the Sri Lanka government, and engaging in political advocacy on behalf of Tamils who live in Sri Lanka.

Several lower federal courts found the material support clause unconstitutionally vague, contrary to the Supreme Court in June 2010. In his majority ruling, Justice Roberts cited a case in which the United Nations closed a Turkish refugee camp in northern Iraq after it came under the control of the PKK. He wrote that "training and advice on how to work with the United Nations could readily have helped the PKK in its efforts to use the United Nations camp as a base for terrorist activities."

Humanitarian groups, Roberts wrote, do not have a constitutional right to "simply disagree with the considered judgment of Congress and the executive that providing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization."

Excerpts from the Ruling

From the majority ruling by Justice Roberts:

"Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms 'training' and 'expert advice or assistance.' Plaintiffs want to 'train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes,' and 'teach PKK members how to petition various representative bodies such as the United Nations for relief.' A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute's definition of 'training' because it imparts a 'specific skill,' not 'general knowledge.' Plaintiffs' activities also fall comfortably within the scope of 'expert advice or assistance': A reasonable person would recognize that teaching the PKK how to petition for humanitarian relief before the United Nations involves advice derived from, as the statute puts it, 'specialized knowledge.' In fact, plaintiffs themselves have repeatedly used the terms 'training' and 'expert advice' throughout this litigation to describe their own proposed activities, demonstrating that these common terms readily and naturally cover plaintiffs' conduct. Plaintiffs do not propose to teach a course on geography, and cannot seek refuge in imaginary cases that straddle the boundary between 'specific skills' and 'general knowledge.'"

"We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their 'pure political speech.' It has not. Under the material-support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: 'The statute does not prohibit independent advocacy or expression of any kind.' Brief for Government 13. Section 2339B also "does not prevent [plaintiffs] from becoming members of the PKK and LTTE or impose any sanction on them for doing so." Id., at 60. Congress has not, therefore, sought to suppress ideas or opinions in the form of "pure political speech." Rather, Congress has prohibited "material support," which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations."

"Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B [the law] depends on what they say. If plaintiffs' speech to those groups imparts a 'specific skill' or communicates advice derived from 'specialized knowledge'-for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. On the other hand, plaintiffs' speech is not barred if it imparts only general or unspecialized knowledge."

"The First Amendment issue before us is more refined than either plaintiffs or the Government would have it. It is not whether the Government may prohibit pure political speech, or may prohibit material support in the form of conduct. It is instead whether the Government may prohibit what plaintiffs want to do-provide material support to the PKK and LTTE in the form of speech."

Material support meant to 'promot[e] peaceable, lawful conduct,' Brief for Plaintiffs 51, can further terrorism by foreign groups in multiple ways. 'Material support' is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups - legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds - all of which facilitate more terrorist attacks. Providing foreign terrorist groups with material support in any form also furthers terrorism by straining the United States' relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks. We see no reason to question Congress's finding that "international cooperation is required for an effective response to terrorism. Our precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role. We do not defer to the Government's reading of the First Amendment, even when such interests are at stake. We are one with the dissent that the Government's 'authority and expertise in these matters do not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals.' But when it comes to collecting evidence and drawing factual inferences in this area, 'the lack of competence on the part of the courts is marked.'

From the dissent by Justice Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor:

"Like the Court, and substantially for the reasons it gives, I do not think this statute is unconstitutionally vague. But I cannot agree with the Court's conclusion that the Constitution permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching and advocacy furthering the designated organizations' lawful political objectives. In my view, the Government has not met its burden of showing that an interpretation of the statute that would prohibit this speech- and association-related activity serves the Government's compelling interest in combating terrorism."

"The Government does identify a compelling countervailing interest, namely, the interest in protecting the security of the United States and its nationals from the threats that foreign terrorist organizations pose by denying those organizations financial and other fungible resources. I do not dispute the importance of this interest. But I do dispute whether the interest can justify the statute's criminal prohibition. To put the matter more specifically, precisely how does application of the statute to the protected activities before us help achieve that important security-related end?" [Ital. in original.]

Bibliography

The Free Speech Center. (2023, Aug. 12). Holder v. Humanitarian Law Project (2010). Retrieved Sept. 28, 2023, from https://firstamendment.mtsu.edu/article/holder-v-humanitarian-law-project-2010

The United States Department of Justice. (2016, Feb. 4). United States v. Humanitarian Law Project - petition. Retrieved Sept. 28, 2023, from https://www.justice.gov/osg/brief/united-states-v-humanitarian-law-project-petition