Ralph Fertig has been advocating the cause of Kurdish national liberation for nearly a quarter century. But the longtime civil and human rights activist professes not to know much about the Kurdistan Workers’ Party (PKK), which the United States government lists as a foreign terrorist organization.
“I don’t even know who is a member of the PKK,” Fertig told a radio interviewer in Februay. “I work with Kurds,” Fertig explained. “I don’t ask whether they’re members of the PKK.”
Fertig's comments came on the eve of Supreme Court arguments in his constitutional challenge to the federal law making it a crime to provide "material support," including advice or training, to officially designated foreign terrorist groups. For more than decade, Fertig has been helping the Kurds under the threat of a possible criminal prosecution under that law.
The government has not prosecuted Fertig. But in rejecting Fertig's challenge this week, the Supreme Court has given a solid green light to use of this broadly written anti-terrorism law not only against “the worst of the worst” but also in some sense against “the best of the best” people like Fertig and groups like his Humanitarian Law Project. Fertig and others say they want to try to guide foreign organizations that use terrorism to advance their goals to tun instead to lawful advocacy and peaceful dispute resolution.
Both the Bush and Obama administrations have made the “material support” law the go-to legal weapon against suspected members or supporters of al Qaeda. The court’s 6-3 decision in Holder v. Humanitarian Law Project (June 21) allows the government as well to prosecute human rights-minded Americans for activities that would seem to be both laudable and constitutionally protected.
For the majority, Chief Justice John G. Roberts Jr. accepted the government’s different view that any “training” or “advice or assistance” to a foreign terrorist organization even for lawful ends is “highly likely” to inure ultimately to the benefit of its terrorist activities. Congress and the executive branch were “uniquely positioned” to make that judgment, Roberts wrote. Dissenting justices argued that the court had a more important role: to protect the First Amendment.
Up until this week, the government had fared badly in playing the anti-terrorism card at the Supreme Court. In four post-9/11 cases decided between 2004 and 2008, the justices rejected the Bush administration’s claims of broad authority to detain suspected enemy combatants with limited review by the courts.
The government fared badly as well in the lower courts in defending the broad reading of the material support law. As originally enacted in 1996, the law was aimed at prohibiting the most concrete forms of aid to terrorist groups: direct financial assistance, lodging, equipment, personnel, or training. Congress substantially expanded the provision late in October 2001 barely six weeks after the 9/11 attacks to prohibit “expert advice or assistance” as well. That was one of the many provisions of the USA Patriot Act that got only the most cursory consideration from Congress in the post-9/11 panic.
The challenge to the law was advancing even as Congress was expanding it. A few weeks before passage of the USA Patriot Act, U.S. District Court Judge Audrey Collins issued a final ruling reaffirming her earlier decision that the law’s prohibitions against providing personnel or training were “impermissibly vague.” Later, in 2003, Fertig’s group filed a second suit challenging the “expert advice or assistance” provision. The proceedings clearly indicated trouble for the government in defending the law as written, prompting Congress late in 2004 to narrow the definition of “training” and “expert advice or assistance.” Lawmakers also added a requirement as the Ninth Circuit appeals court had ruled necessary that prosecutors show that a defendant had knowingly provided aid to the terrorist group.
In his opinion, Roberts cited the legislative refinements as evidence that Congress had been careful not to cross the First Amendment line. In dissent, Justice Stephen G. Breyer proposed going one step further and requiring the government to prove that a defendant knew that any training, advice, or assistance was likely to further the organization’s terrorist actions, not its lawful activities. Roberts said Congress "plainly" decided not to require that kind of specific-intent proof.
Hawkish national security experts are hailing the ruling. “Terrorist organizations must be treated as pariahs and suffocated, not cultivated,” former federal prosecutor National Review legal editor Andrew McCarthy writes on a New York Times blog. From the opposite perspective, Stephen Vladeck, a law professor at American University in Washington, warns the decision will have “a profound chilling effect on the efforts of peace-building organizations and other NGOs that seek to promote non-violent democracy building.”
Much depends on whether the Justice Department makes judicious use of the law now that the high court has removed the cloud over it. In oral argument back in February, Solicitor General Elena Kagan expressly declined to speculate whether activists such as Fertig had real reason to fear prosecution under the law.
Writing in a different case earlier this year, Roberts was unwilling to trust the government’s good faith alone on sensitive First Amendment questions. “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly,” Roberts wrote in striking down a broadly written animal cruelty statute in United States v. Stevens. In the new ruling, however, the Roberts Court is willing to put the First Amendment at some risk, trusting assurance from a government that since 9/11 has proved none too trustworthy on national security matters.