A six to three majority of the U.S. Supreme Court has upheld a key provision of the Patriot Act that makes it a crime for humanitarian groups to provide material support, including expert advice, to any individual who could potentially be connected to government-designated terrorist groups.
Humanitarian groups had argued that this provision violated their First Amendment rights to provide nonviolent conflict resolution to groups that have terrorist designations but also work for humanitarian purposes.
But Chief Justice John Roberts, writing for the majority, said that it is difficult to segregate the legitimate activities of some groups from their support of terrorism, and warned that material support "frees up" other resources within the organization that may be put to violent ends.
"Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the government's interest in preventing terrorism it was necessary to prohibit providing material support in the form of training, expert advice, personnel and services to foreign terrorists groups, even if the supporters meant to promote only the groups' nonviolent ends," Roberts wrote.
Justice Stephen Breyer, who was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor in the dissenting opinion, took the unusual step of reading his dissent from the bench.
"I believe application of the statute as the government interprets it would gravely and without adequate justification injure interests of the kind the First Amendment protects," said Breyer.
"The government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in these activities. All the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends," he said.
During oral arguments, Solicitor General Elena Kagan had called the material support law a "vital weapon" in the fight against international terrorism. "Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs," she said.
Ralph Fertig, president of the Humanitarian Law Project, brought the case to the high court, arguing that for years he strived toward nonviolent dispute resolution in his work with Kurds in the United States and abroad. He trained them to use international law as a means to resolve their claims of oppression in southeastern Turkey.
But after the State Department designated the Kurdistan Worker's Party a terrorist group, any "material support" to Kurds who might be affiliated with it became illegal under the federal law.
The so called material support law was passed before 9/11 but was strengthened by thePatriot Act.
Although Roberts wrote that today's decision "is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny," experts said the decision will have implications for Americans supporting other entities that have direct or indirect ties to groups such as al Qaeda, Hamas or Hezbollah.
"The decision sends a clear message that the First Amendment does not protect even the most benign forms of advocacy on behalf of groups designated as 'foreign terrorist organizations' by the Secretary of State," said Stephen I. Vladeck of the American University Washington College of Law.
"As a result, the government will be able to apply its counterterrorism weapon of choice -- the material support statute -- to a far wider range of cases than it could previously. Only where the advocacy is truly 'independent,' in the words of the chief justice's opinion for the court, will it fall outside the scope of one of the harshest federal criminal laws on the books," Vladeck said.
David Cole, Fertig's lawyer who sits on the board of the Center for Constitutional Rights, released a statement today saying, "We are deeply disappointed. The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the court has said that the First Amendment permits Congress to make it a crime to work for peace and human rights. That is wrong."