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- Year: 2011
- Country: United States
- Language: English
- Document Type: Publication
- Topic: Advocacy and Public Policy Activities,Aid Effectiveness,Counterterrorism and Money Laundering,Foreign Funding
THE SUPREME COURT, MATERIAL SUPPORT, AND
THE LASTING IMPACT OF HOLDER V.
HUMANITARIAN LAW PROJECT
Over the course of the post-9/11 era, the Supreme Court has had
a fair amount to say about the government’s response to terrorism
as that response relates to military detention and trial before
1 Notably, however, it has not had much to
say about federal criminal law relating to terrorism until very
recently. That changed in June 2010 with the Court’s decision in
Holder v. Humanitarian Law Project, which rejected a series of
constitutional challenges to a key counterterrorism statute.
The law at issue—18 U.S.C. § 2339B 3—is frequently referred to
as the “material support law,” as its essential function is to prohibit
the provision of “material support or resources” to designated
foreign terrorist organizations.
4 “Material support or resources,” in
turn, is defined to include:
any property, tangible or intangible, or service, including
currency or monetary instruments or financial securities,
financial services, lodging, training, expert advice or
assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal
substances, explosives, personnel (1 or more individuals who
* Charles I. Francis Professor in Law, University of Texas School of Law.
1. See, e.g., Boumediene v. Bush, 553 U.S. 723, 732–33 (2008) (holding
that Congress violated the Suspension Clause by attempting to replace habeas
jurisdiction with a truncated form of review for noncitizens held in military
custody at Guantanamo); Hamdan v. Rumsfeld, 548 U.S. 557, 567 (2006)
(holding that the system of military commissions established by presidential
order violated the Uniform Code of Military Justice); Hamdi v. Rumsfeld, 542
U.S. 507, 509 (2004) (holding that the September 18, 2001, Authorization for
Use of Military Force conferred authority to use military detention in relation to
persons who bore arms for the Taliban in Afghanistan, but that an American
citizen held on that ground has a Fifth Amendment right to more substantial
procedural safeguards than had been given in that instance).
2. Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2009).
3. 18 U.S.C. § 2339B (2006).
4. In fact, § 2339B is only one of several such laws. For an overview and
discussion of the origins of § 2339B, see Robert Chesney, The Sleeper Scenario:
Terrorism-Support Laws and the Demands of Prevention, 42 H
ARV . J. ON LEGIS .
1, 4–21 (2005).
14 WAKE FOREST LAW REVIEW FORUM [Vol. 1
may be or include oneself), and transportation, except
medicine or religious materials. 5
The term “training” in that definition is further defined to mean
“instruction or teaching designed to impart a specific skill, as
opposed to general knowledge,” while the phrase “expert advice or
assistance” is defined to mean “advice or assistance derived from
scientific, technical or other specialized knowledge.”
From the government’s perspective, the material support law is
important in two distinct ways. First, it has an unfocused
preventive function in that it inhibits the flow of various forms of
support to foreign terrorist organizations, thus (hopefully) limiting
their capacity to cause harm. In this respect, the statute functions
much like a conventional embargo provision; one merely substitutes
the notion of a foreign terrorist organization for the notion of a
hostile foreign state as the object of the embargo.
Second, it has a focused preventive function insofar as a person
providing support—and thus subject to prosecution and then
incarceration in jail—also is a person whom the government believes
to be personally dangerous. The latter function is particularly
important in circumstances in which a suspected agent of a foreign
terrorist organization cannot be linked to a particular plot. The
broad definition of support cited above, combined with a permissive
mens rea element,
7 ensures that it is relatively easy to charge in
comparison to, say, conspiracy to commit a violent act in violation of
18 U.S.C. § 956(a).
On the other hand, these same features also raise an array of
constitutional concerns. Is the statute vague or overbroad? Does it
violate the First Amendment in terms of expression or association?
Does it impute guilt-by-association in violation of the Fifth
Amendment? More generally, does the existence of the material
support law unduly chill the activities of journalists, advocates, and
human rights groups?
These were among the concerns raised by a set of individuals
and groups led by the Humanitarian Law Project (“HLP”), which is
a non-governmental organization wishing to provide various forms
of support for the humanitarian and political activities of the
Kurdistan Workers’ Party (“PKK”) and the Liberation Tigers of
Tamil Eelam (“LTTE”), both of which have been designated as
foreign terrorist organizations since 1997.
8 Anticipating that such
5. 18 U.S.C. § 2339B(g)(4) (2006) (incorporating by reference 18 U.S.C.
6. 18 U.S.C. § 2339A(b)(2)–(3) (2006).
7. There is no need to prove the defendant intended any harm, but simply
that the defendant acted knowingly and with knowledge that the recipient
either had been formally designated by the Secretary of State to be a “foreign
terrorist organization” or at least that the defendant knew the recipient
engaged in terrorist activity. 18 U.S.C. § 2339B(a)(1) (2006).
8. Press Release, U.S. Dep’t of State, Office of the Coordinator for
Counterterrorism, Foreign Terrorist Organizations (Nov. 24, 2010), available at
2010] THE LASTING IMPACT OF HOLDER 15
activities would expose them to prosecution, HLP—for ease of
reference, I will refer to all the coplaintiffs collectively as HLP from
this point—sought declaratory and injunctive relief in a civil suit
filed in California, which ultimately arrived at the Supreme Court
after twelve years of lower court litigation. There, by a 6-3 margin,
a majority of the Supreme Court rejected HLP’s argument that the
material support law is unconstitutionally vague insofar as it
prohibits “training,” “expert advice or assistance,” “service,” or
“personnel,” and that, in any event, the law unconstitutionally
infringes freedom of expression and association.
The key to understanding the majority opinion by Chief Justice
Roberts is that it considers HLP’s arguments through an as-applied
lens, emphasizing the particular actions that HLP proposed to
undertake rather than engaging in an open-ended review. In
particular, the opinion examines the arguments in view of HLP’s
stated desire to (1) train PKK members in the use of international
law for purposes of dispute resolution, (2) teach PKK members how
to petition for relief from “various representative bodies such as the
United Nations,” and (3) engage in “political advocacy on behalf of
Kurds” in Turkey (just as HLP’s copetitioner proposed to advocate
on behalf of Tamils in Sri Lanka).
The substantive analysis begins with the question of
11 The problem with HLP’s position, the majority
explained, was that the statute was not so much unclear as it was
12 The ultimate question was whether the statute
provided a “person of ordinary intelligence fair notice of what is
prohibited,” the Court observed, and as to the particular actions
proposed by HLP, there was more than adequate notice in that some
were clearly covered and some were clearly not.
13 In particular, the
terms of “training” and “expert advice or assistance” plainly
encompassed the proposals to give training in relation to
international law or in relation to petitioning bodies such as the
U.N. for relief.
14 Conversely, none of the terms in the material
support definition plausibly would extend to efforts by HLP to
simply advocate on behalf of Kurds living in Turkey.
15 The term
9. Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2712 (2009).
10. Id. at 2716–17.
11. Prior to this point, the opinion does consider and dismiss the possibility
of invoking the canon of constitutional avoidance so as to adopt an
interpretation of the material support law that, HLP argued, would avoid any
constitutional objections. HLP suggested that the Court read into the statute a
mens rea requirement pursuant to which the government would have to prove
that the defendant intended for any support he or she provided to contribute to
harm or an unlawful end. The majority declined to do so, reasoning that
Congress had specifically chosen not to do this in the first place and thus that
such an interpretation would amount to revision rather than interpretation.
See id. at 2717–18.
12. See id. at 2719–21.
13. See id. at 2720–22.
14. See id. at 2720.
15. See id. at 2721–22.
16 WAKE FOREST LAW REVIEW FORUM [Vol. 1
“personnel” would not apply because Congress defined that term to
require a relationship of direction and control between the
organization and the individual, and the term “services” would not
apply because the Court understood it to require “concerted activity”
actually coordinated between the organization and the individual.
The majority conceded that HLP had identified less-readily
classifiable scenarios that might arise, but dismissed these as
17 Thus the Court left the door open to a
revival of the vagueness argument if and when such fact patterns
might actually arise.
Having dispatched the vagueness challenge, and having
determined along the way that the material support law simply does
not apply to the independent advocacy proposed by HLP, the
majority then turned to the question of whether the statute violated
the First Amendment’s protection of freedom of expression by
prohibiting the two forms of training suggested by HLP.
Interestingly, the majority rejected the government’s suggestion
that this question be answered with reference to a doctrinal
framework of intermediate scrutiny, as would befit a content-
neutral regulation with an incidental impact on expression.
instead categorized the law as content based in this setting,
reasoning that the law’s prohibition of “expert advice or assistance”
turned on a content-contingent inquiry into whether expression
involved specialized or merely general knowledge.
19 Thus the
majority elected instead to apply strict scrutiny. 20 And though HLP
conceded that the government has a compelling interest in
suppressing terrorism, this development did seem to augur poorly
for the government insofar as strict scrutiny requires the
government to pursue the least restrictive means available to
pursue such interests. But despite the general perception that strict
scrutiny is “fatal” in practice, it was not so in this instance.
The central dispute at this point—indeed, the central issue with
the broad sweep of the material support law—was whether it
mattered that HLP intended no harm by its proposed actions, and
truly intended only to encourage terrorist groups to pursue peaceful
means of achieving their ends. If so, then the law plainly would be
overinclusive and hence would fail strict scrutiny. The majority
concluded, however, that this characterization of the impact of
HLP’s proposed actions failed to account for the indirect harm they
might cause. First, the majority noted that both Congress and the
executive branch had formed the judgment that all forms of support
to a foreign terrorist organization, no matter how innocuous on their
face, were contrary to U.S. interests, and the majority expressly
noted that the judiciary owed at least some degree of deference to
17. Id. at 2722.
18. Id. at 2723.
19. Id.at 2723–24.
20. Id. at 2724.
2010] THE LASTING IMPACT OF HOLDER 17
such judgments in light of comparative institutional competence
21 Second, the majority concluded that this judgment was
correct on the merits, irrespective of deference obligations. 22 It
explained that seemingly innocuous support can be harmful in
several respects. At least when money or other monetizable assets
are involved, for example, the support is fungible and hence either
directly or via substitution will enable recipient groups to spend
more on their violent activities.
23 But of course HLP was not
proposing to give money to the PKK via these training activities
(although, as the court noted, one of the copetitioners did originally
propose to assist the Tamil Tigers in obtaining tsunami relief
24 Thus it mattered a great deal to the majority’s analysis
that it proceeded to make a distinct point about the indirect impact
of seemingly-innocuous forms of support. Whatever the form of the
support, and whatever the intentions underlying it, support tends to
“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.”
25 Once one
accepts this descriptive account, the nexus between the
government’s interest in suppressing terrorism and its selection of
an embargo-style prohibition on a sweeping array of forms of
support becomes much clearer and more defensible.
The majority then turned to the particular forms of training
HLP proposed to give to the PKK, inquiring whether they presented
a more sympathetic case than the general argument considered
above. The majority did not think so. Instruction relating to
international law, the court reasoned, could be employed to facilitate
the use of negotiations as a stratagem designed to “buy time to
recover from short-term setbacks, lulling opponents into
complacency, and ultimately preparing for renewed attacks.”
such organizations might also use its newfound knowledge of the
“structures of the international legal system . . . to threaten,
manipulate, and disrupt”—an awkward phrasing that appears to
suggest that such training would facilitate “lawfare” in the sense
that groups might employ pretextual litigation as a means of
restraining their state opponents.
27 As for training in the use of
petitions for “relief,” the majority expressed uncertainty as to what
HLP actually had in mind, but did note that to the extent that this
might include monetary relief then it would present an easy case.
This left only HLP’s freedom of association argument. Here the
21. See id. at 2727. For a discussion of comparative institutional
competence claims in the national security setting, see generally Robert
Chesney, National Security Fact Deference, 95 V
A. L. REV . 1361 (2009).
22. Humanitarian Law Project, 130 S. Ct. at 2727.
23. Id. at 2725–26.
24. See id. at 2729.
25. Id. at 2725.
26. Id. at 2729.
18 WAKE FOREST LAW REVIEW FORUM [Vol. 1
Court drew a sharp distinction between punishment of association
simpliciter and punishment of actions with associative aspects, but
also with elements of transferring value of some kind to the
29 Because the material support statute
encompassed only the latter, in the majority’s view, prior decisions
that struck down efforts to punish mere membership in various
unpopular or subversive groups were not applicable.
Reflecting on these arguments, it is tempting to treat Holder v.
Humanitarian Law Project as a sweeping victory for the
government, as an indication of clear sailing ahead for material
support prosecutions in a broad array of circumstances. But this
would be premature if not foolish. The majority’s opinion wraps up
with a series of cautionary statements warning readers not to
presume too much about the scope of the holding.
31 As the foregoing
analysis emphasizes, after all, the Court’s rationale turned in
substantial part on its decision to analyze HLP’s arguments through
the lens of the specific and narrow set of actions HLP proposed to
undertake. Thus we find the majority warning at the end that one
should not assume that “future applications of the material-support
statute to speech or advocacy will survive First Amendment
scrutiny,” that “a regulation of independent speech would pass
constitutional muster, even if the Government were to show that
such speech benefits foreign terrorist organizations,” or “that
Congress could extend the same prohibition on material
support . . . to domestic organizations.”
32 Bearing this in mind, it
seems most accurate to say that the majority was correct in its
analysis within the narrow bounds it set for itself, and that the
decision decides relatively little with respect to close cases that may
arise in the future.
And that leads to perhaps the most significant question of all
about the decision and its implications. The fact of the matter is
that the government has prosecuted violations of the material
support law frequently since 9/11 (after having rarely used it
between its enactment in 1996 and the fall of 2001), yet few if any of
the cases actually brought involved anything resembling the conduct
HLP proposed to carry out.
33 It thus is tempting to conclude that all
29. Id. at 2719.
30. Id. It is not clear that this is entirely correct. Notably, the definition of
“support” includes the term “personnel,” which is further defined to include the
act of providing one’s own self to a group and being subject to its direction or
control. This is, in a sense, a membership prohibition, and in that singular
respect Scales v. United States, 367 U.S. 203, 229 (1961) would seem to require
that a mens rea of intent be read into the law in order to avoid constitutional
difficulties. But HLP’s proposed actions did not implicate this particular use of
the material support law, and the issue received no mention in the opinion.
31. Humanitarian Law Project, 130 S. Ct. at 2730.
33. For an overview of § 2339B prosecutions, see Robert M. Chesney,
Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing
Data in Light of the ‘Soft-Sentence’ and ‘Data-Reliability’ Critiques, 11 L
EWIS & CLARK L. REV . 851, 894–901 (2007) (including an appendix listing prosecutions
2010] THE LASTING IMPACT OF HOLDER 19
of this discussion is merely academic. But it seems to me that this
would be too cavalier an attitude and that it would fail to account for
the substantial impact that the mere prospect of prosecution can
have. That the statute has not, or at least has not often, been used
in expression-sensitive ways does not mean that it cannot be. The
majority’s closing caveats seem to hold open the prospect for future
declaratory judgment actions exploring these boundaries, perhaps
intentionally so. One can readily imagine, for example, a suit
concerning the ability of lawyers to file amicus briefs or otherwise to
provide counsel to designated groups. Such litigation might draw
attention to the little-discussed “license” option in § 2339B, for
example, pursuant to which the Secretary of State in conjunction
with the Attorney General may issue an “approval” that precludes
prosecution on the grounds of providing “personnel,” “training,” or
“expert advice or assistance.” In the final analysis, in other words,
Holder v. Humanitarian Law Project may prove to be simply the
beginning of a rich vein of emerging jurisprudence at the
intersection of national security and civil liberties. Indeed, the
majority’s determination that “strict scrutiny” applies may yet prove
to be the most important aspect of the decision, one that will not
always break the government’s way.
between 2001 and 2007).