CCR Files Opening Brief in First Supreme Court Case to Challenge Patriot Act

Obama Administration Defending Law that Makes Speech Advocating Human Rights a Terrorist Crime

November 17, 2009, New York – Yesterday, the Center for Constitutional Rights (CCR) filed the first brief in Holder v. Humanitarian Law Project, the first case to challenge a portion of the Patriot Act before the Supreme Court. The case, originally brought in 1998 on behalf of a human rights group, a retired federal administrative judge, a doctor, and several nonprofit groups, challenges the constitutionality of the law that makes it a crime to provide “material support” to groups the administration has designated as “terrorist.”  In particular, the plaintiffs charge that the law goes too far in making speech advocating lawful, nonviolent activity a crime.  The lower courts have unanimously declared several provisions of the law – including one added by the Patriot Act – unconstitutionally vague because they encompass speech and force citizens to guess as to their meaning.

The case challenges those aspects of the “material support” statute that criminalize pure speech – specifically the prohibitions on providing “training,” “personnel,” “expert advice or assistance,” and “service.”  Under the law, any speech that falls within these terms – no matter how peaceable and nonviolent – is a crime if communicated to, for, or with the collaboration of any organization placed on a list of “foreign terrorist organizations” maintained by the Department of State. Convictions can result in sentences of fifteen years to life.  According to the government, the statute requires no showing that the donor intended to further any act of terrorism or violence.

Said CCR Cooperating Attorney David D. Cole, “This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes. In our view, the First Amendment does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law.  The Obama administration sought Supreme Court review of that decision.

Plaintiffs in the case include the Humanitarian Law Project (HLP), a human rights organization in Los Angeles that seeks to provide human rights advocacy training to the Kurdistan Workers’ Party (PKK), the main Kurdish political party in Turkey, and a former federal administrative law judge, Ralph D. Fertig, who is the president of the HLP. Once the State Department designated the PKK a terrorist organization, it became a crime for HLP to continue to train the group in human rights advocacy, even though that assistance is designed to reduce violence by encouraging peaceful ways of resolving conflict.

“To deny me the right to speak of peace to a group because it  is branded ‘terrorist’ is to defer the possibility that it could ever be anything else,” said plaintiff Ralph D. Fertig, JD, ACSW, retired U.S. Administrative Judge and Clinical Associate Professor, University of Southern California School of Social Work. “And to punish those who seek peaceful resolutions of conflict is to yield to violence. Surely the First Amendment must protect against such government action.”

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute.  After earlier court decisions declared that and other parts of the statute unconstitutional, Congress amended it in 2004 to try to correct the infirmities.  However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

For more information on the case, including briefs and a detailed explanation of material support, visit http://ccrjustice.org/holder-v-humanitarian-law-project.

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

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