ABA Criminal Justice Section: U.S. Supreme Court Brief Prepared by Professor Rory Little

Holder (Attorney General) v. Humanitarian Law Project et. al. 08-1498
A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

This summary has been created by Professor Rory K. Little (littler@uchastings.edu), U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

U.S. Supreme Court Summaries – Criminal Cases June 21, 2010
Holder (Attorney General) v. Humanitarian Law Project et al., http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf

On June 21, although the Court reversed the Ninth Circuit in all four decisions it issued (!), only one was a criminal case. Humanitarian Law Project addresses the long-running attack on the “material support to a foreign terrorist organization” criminal statute, 18 U.S.C. § 2339B. Setting a record (I think) for the longest “syllabus” ever (six tiny-type pages), the Court upheld the statute, 6-3, as applied to the facts before it, while reserving decision as to possible future “as applied” questions based on hypotheticals not presented by these plaintiffs. Interestingly, Justice Stevens did not join Justices Breyer, Ginsburg, and Sotomayor in dissent, and a paragraph near the end of the majority opinion (pages 33-34) addressed to a hypothetical statute “prevent[ing] American citizens from training the Japanese Government” during World War II, seems self-consciously to be designed to keep Justice Stevens in the majority fold. It worked.

FIRST AMENDMENT (criminal statute prohibiting provision of “material support” to foreign terrorist organizations upheld in the face of First Amendment and Fifth Amendment vagueness challenges).

Holder (Attorney General) v. Humanitarian Law Project et al., No. 08-1498, 130 S.Ct. ___ (June 21, 2010), reversing in part, affirming in part 552 F.3d 916 (9th Cir. 2009).

Holding (6-3): Statute criminalizing provision of “material support to foreign terrorist organizations” upheld as not unconstitutionally vague or violative of the First Amendment, even as applied to certain “training” activities for such organizations directed at peaceful activities, so long as such support is “independent” and not “directed by or coordinated with” the foreign terrorist organization. Constitutional objections regarding other, hypothetical applications to other activities or speech are reserved.

Facts: In 1996 as part of the AEDPA statute, Congress made it a crime to provide “material support or resources” to a designated foreign terrorist organization (“FTO”). In response to this and other constitutional challenges, Congress subsequently amended the statute twice, to more clearly define “material support” as including “services,” “personnel,” “expert advice or assistance,” and “training … designed to impart a specific skill as opposed to general knowledge;” and to require “knowledge” of the “terrorist designation or the group’s commission of terrorist acts.” Congress also made clear that “individuals who act entirely independently of the foreign organization” were not subject to prosecution, at least under the “personnel” part of the statute.

In 1997, the Secretary of State designated 30 groups as FTOs, Two of the groups filed this challenge to the statute (one group also separately challenged its FTO designation, which was upheld by the DC Circuit and is not at issue here). Both groups alleged that they also engage in non-terrorist “political advocacy” and “humanitarian activities,” and other plaintiffs here alleged that they wanted to assist these organizations in only their lawful, non-violent activities. Specifically, they wanted to provide training to the FTOs “on how to use … international law to peacefully resolve disputes;” “how to petition … the United Nations for relief,” and “political advocacy” on behalf of certain groups allegedly oppressed by the governments of Sri Lanka and Turkey. The plaintiffs alleged that the material support statue was unconstitutionally vague, in that they could not determine which if any of their activities would violate the statute; and also violated the First Amendment as chilling their rights to speech and to association. In a series of opinions issued over a decade, the district court and Ninth Circuit ruled that the statute was unconstitutionally vague insofar as “training, service, or expert advice or assistance” reached “protected advocacy,” but that the statute was not overbroad under the First Amendment.

Roberts (joined by Stevens, Scalia, Kennedy, Thomas, and Alito): First, the lawsuit is justiciable (as one might hope after 12 years of litigation)” as a preenforcement review of a criminal statute that presents “a credible threat of prosecution.” Second, we cannot interpret the statute as limited only to persons who provide material support with a specific intent to further the FTO’s terrorist activities, because it would be “inconsistent with the text of the statute.” Congress expressly added a mental state of “knowledge” to the statute, and we cannot rewrite that merely to “avoid” the constitutional issues (as the dissent suggests).

Third, the Ninth Circuit “did not adhere to [our previously announced] principles” for a due process vagueness attack. Such a challenge cannot be “merged” with the First Amendment issues, and cannot be based on hypothetical facts when the plaintiff “engages in some conduct that is clearly proscribed.” “That rule makes no exception for conduct in the form of speech.” We think that as clarified by Congress’s amendments, the statute “provides a person of ordinary intelligence fair notice of what is prohibited.” At bottom, plaintiffs simply disagree with application of the statute against their proposed training and advocacy activities – but those activities are plainly within the compass of the statute. The government concedes that mere membership in an FTO is not prohibited. [Ed. Note: why this is true is unanalyzed by the majority as well as the dissent – presumably the government had to make this concession to avoid running afoul of the Communist Party membership cases of the 1950s.] And “independent advocacy” is not proscribed by the statute; providing service or personnel is prohibited only if the person or service is “under th[e FTO’s] direction or control,” which includes “in coordination with” the FTO. Hypothetical line-drawing difficulties under these definitions are simply not before the Court. They involve “sheer speculation” and “must await a concrete fact situation” (Zemel v. Rusk, 381 U.S. 1 (1965).) The statute is not impermissibly vague on these facts.

The statute also does not violate the First Amendment. It “does not prohibit independent advocacy or expression of any kind.” It does not bar association since it does not prohibit membership. And while it may reach some speech, it 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.” We agree that a “more demanding standard” of review than O’Brien (1968) applies to this statute, because the statute clearly reaches some speech. But it survives that review.

“Everyone agrees” that the objective of combating terrorism is a compelling interest. But we disagree with the plaintiffs that this statute is not “necessary” to further that interest, and we disagree with the dissent that more “specific” facts are necessary to sustain it. In this area, the judiciary should give the other branches deference, without abandoning our independent role. Congress and the Executive have made findings that “any contribution” to an FTO ultimately “facilitates” the organization and its objectives. Even teaching peaceful negotiation and petitioning concepts could be used, by an FTO to further its unlawful objectives. Congress was “justified” in rejecting the view that “ostensibly peaceful aid would have no harmful effects.” It can help “legitimate” a terrorist organization, and also interfere with the United States’ diplomatic and foreign affairs efforts. “Common sense” as well as the evidence supports this view (footnote 6). Congress has indicated that it is “conscious of its own responsibility” to consider constitutional concerns. It has drawn the statute narrowly, and allowed FTOs to judicially challenge their designation. It has excluded the provision of medicine and religious materials from the statute. But “the particular speech plaintiffs propose to undertake” is “wholly foreseeable” as potentially useful to the FTOs, and “the dissent fails to address the real dangers at stake.”

Now, “all this is not to say that any future applications” of the statute “will survive First Amendment scrutiny.” But on the factual allegations presented, the statute does not violate the First Amendment. Finally, Congress may rationally distinguish aid to terrorist organizations from aid to other types of groups. The Constitution proclaims that government is established to “provide for the common defence.” This statute pursues that objective consistently with the Constitution.

Breyer dissenting (with Ginsburg and Sotomayor): I agree that the statute is not unconstitutionally vague. But I don’t think the government has borne the heavy burden required to justify criminalizing speech activities. There is no hard evidence that peaceful activities of the sort proposed here actually benefit an FTO, as opposed to leading toward peaceful resolutions. I would interpret the statute (based on the word “material”) to apply “only when the defendant knows or intends that [his] activities will assist the organization’s terrorist activities.” Otherwise, “the risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent,” and “there is no natural stopping point” to the Court’s “legitimizing” argument. Certainly even completely “independent” advocacy can further the goals of an FTO and help “legitimize” it. Meanwhile, there is no real showing here that the peaceful teachings and advocacy that plaintiffs propose will actually aid the FTOs in their terrorist goals – and the fact that the law treads upon political speech should heighten our need for hard evidence. Thus in the 1950s, we struck down statutes that criminalized Communist party membership by those “intending to further only its peaceful activities.” [Ed. Note: Of course, here, the government has conceded that membership is allowed under 2339B – although why that is not “material support” is unexplained, other than by the need to distinguish the Communist Party cases.] “What is one to say about … arguments that would deny First Amendment protection to the peaceful teaching of international human rights law”? The government and the majority “stretch [their arguments] beyond constitutional limits” – indeed, even the government has never offered the hypothetical “legitimizing” arguments that the majority adopts. Today’s ruling “gravely and without adequate justification injure[s] interests of the kind the First Amendment protects.” I would remand the case for further proceedings under my proposed interpretation. Because the majority also changes the analysis used by the lower courts, it too should remand rather than simply upholding this statute. “The Court has failed to examine the Government’s justifications with sufficient care” and “ultimately deprives the individuals before us of the protections that the First Amendment demands.”

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