Free Speech or Support for Terrorists? Supreme Court Weighs Key Patriot Act Provision

WASHINGTON, Feb. 22, 2010 -- As president of the Humanitarian Law Project, Ralph Fertig has spent years working toward nonviolent dispute resolution. But his work has come to a screeching halt because of a federal law that prohibits him from providing material support -- defined to include expert advice -- to any individual who could potentially be connected to government-designated terrorist groups.

Lisa Schrich, a professor at Eastern Mennonite University, has just returned from Afghanistan, where she, too, felt hamstrung in her efforts to work toward a nonviolent resolution with Afghan citizens. She thinks the law cripples the work of non-government organizations because it is vague on what kinds of communications humanitarian lawyers can have with individuals who may or may not have ties to government-designated terrorist groups.

"Does my listening to people who may belong to the Taliban include material support?" she asks.

The so called "material support law" -- passed before 9/11 but strengthened by the Patriot Act -- makes it illegal to not only provide "goods " or "money" to government designated terrorist groups, but also services less easy to define, such as "expert advice, training and personnel."

Fertig has brought his case to the Supreme Court and his lawyers will argue that the law is unconstitutionally vague and violates his first amendment right to promote nonviolent activities through pure speech.

The justices' decision in the case will have implications for Americans supporting other entities with direct or indirect ties to groups such as al Qaeda, Hamas or Hezbollah.

Fertig worked with Kurds in the United States and abroad, training 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 (PKK) a terrorist group, any "material support" to Kurds who might be affiliated with the PKK is illegal under the material support statute.

Nonviolent Dispute Resolution, Or Indirect Support for Terrorism?

The government -- which has used the law increasingly since 9/11 -- considers it a "crucial tool" and has used it to convict approximately 75 defendants since 2001.

"It's a lot easier to prove that an individual in some ways supported a terrorist group then that they were directly involved in acts of terrorism," says Stephen I. Vladeck, a professor at Washington College of Law at American University. "It's the first time the court is being asked to consider the scope of criminal antiterrorism laws since 9/11."

Fertig believes it is ironic the government would try to suppress his work to promote nonviolence.

"It's a matter of free speech that I should be able to speak with the Kurds on their behalf," he says. "Nonviolent activity would be more successful for groups seeking to establish human rights."

Supporters of the law say it is essential to stop any, even indirect, support of terrorism.

"There is no question that whatever the Supreme Court rules in this case will be applicable to every terrorist group," says Richard Samp, chief counsel of the Washington Legal Foundation.

"Courts have no business second-guessing determinations of the elected branches of government on such vital national security issues," Samp says.

In court papers, lawyers for Fertig argue that the statute forbids "pure political speech promoting lawful, nonviolent activity."

But in its briefs, the government points out that the PKK has waged a "violent insurgency" since its founding in 1974. The government says that Fertig and other petitioners are able to express "any views they wish" about the PKK, but that the statute "prevents petitioners from contributing resources of various kinds that further those groups' activities."

It is the definition of resources that divides the parties in the case and the fact that many groups that have terrorist designations also work for humanitarian purposes.

Fertig says that his advice, unlike a financial donation , should not be linked to support of terrorism.

But the government insists, "Petitioners remain free ... to lobby Congress, to teach and advise on human rights, to promote the peaceful resolution of political disputes, and to advance for the human rights of minority populations. What petitioners may not do under the statute is something different: engage in certain activities in coordination with, or under the direct or control of, groups that they know have been designated as terrorist organizations or have engaged in terrorist activity."

Samp says that what Fertig calls "free speech" is actually advice that will help terrorists.

"Pure speech can aid terrorists," Samp says. "If you teach them how to advance their cause in the United Nations, for example, that means you are freeing up their resources so then they can use that same money to buy bombs. "

Schrich hopes that Congress could have another shot at narrowing the law, clarifying the line between her intent to provide humanitarian assistance and the government's national security interests.