Supreme Court boosts federal prosecutors in terror cases

McClatchy NewspapersJune 21, 2010 

WASHINGTON — The Supreme Court on Monday bolstered law enforcement in national security cases, permitting prosecution of U.S. organizations that provide non-violent legal training or advice to designated terrorist groups.

In the year’s most anticipated war-on-terrorism decision, the court by a 6-3 vote ruled that legal and political training proposed to be offered by the Humanitarian Law Project and several California-based groups could amount to “material support” for terrorists.

Tellingly, the court’s majority also stressed how much deference presidents and the Congress should receive in matters of war and peace. This deference sets the decision in Holder v. Humanitarian Law Project apart from other war-on-terrorism cases, such as those involving Guantanamo Bay, in which justices have second-guessed presidential decisions.

“Congress and the executive (branch) 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,” Chief Justice John Roberts Jr. wrote for the majority. “A foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate and disrupt. This possibility is real, not remote.”

Retiring Justice John Paul Stevens, the court’s last World War II veteran, joined the court’s traditional conservative majority in the decision. It seemingly caps a 12-year legal struggle, during which time the Tamils of Northern California, the Los Angeles-based Humanitarian Law Project and others have challenged the “material support” law.

The groups want to provide legal training for the Liberation Tigers of Tamil Eelan, and the Partiya Karkeran Kurdistan (PKK). The groups have sought independent states for, respectively, the Tamils in Sri Lanka and the Kurds in Turkey. Both organizations engage in political and humanitarian efforts, but have also been designated terrorist organizations.

The 1996 law governing “material support” for terrorists makes it a crime, punishable by 15 years in prison, to provide “training,” “expert advice or assistance,” “service,” or “personnel” to designated terrorist groups. Congress has amended it several times following earlier court rulings.

Since 2001, the material support statute has been used to charge about 150 individuals for assisting terrorists. So far, about half of those charged have been convicted.

The Humanitarian Law Project, run by University of Southern California professor Ralph Fertig, and its allies have not been charged under the 1996 law prohibiting material support for terrorists. They had hoped to get the provision struck down before they began offering legal training.

Roberts reasoned such legal advice could have consequences.

“Training and advising a designated terrorist organization on how to take advantage of international entities might benefit that organization in a way that facilitates its terrorist activities,” he said.

The PKK, founded in 1974, has been at the center of what the Obama administration termed a “violent insurgency that has claimed over 22,000 lives” including some Americans. The Tamil Tigers, founded in 1976, “used suicide bombings and political assassination” as part of its independence campaign, the Obama administration says.

Last May, the Tamil Tigers admitted the group had been militarily defeated after its chief had been killed

Justice Stephen Breyer, writing in dissent for himself and justices Ruth Bader Ginsburg and Sonia Sotomayor, argued that the legal training proposed by the Humanitarian Law Project amounted to free speech and association activity protected by the First Amendment.

“All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends,” Breyer stressed.

Breyer took the unusual step of reading his dissent from the bench, signaling his strong sentiments about the case.

Sharon Bradford Franklin of the Constitution Project pronounced herself “thoroughly dismayed” by the ruling, declaring that “training groups to pursue peaceful resolution of their disputes should be encouraged, not made criminal.” From the other side, the Anti-Defamation League praised the decision as “right on target.”

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