Humanitarian Law Project's Slippery Slope

Today's Supreme Court decision involving material support for terrorist organizations leaves unanswered a question the Government apparently argued and dissent framed: Can a lawyer be prosecuted for representing a terrorist group before the United Nations or even the Supreme Court itself?

The simple answer is that the Court did not decide this issue. A more complicated question is what will happen when this issue reaches the Court, as it inevitably will.

By a vote of 6-3, the Court upheld application of a statute making it a criminal offense materially to support  known terrorist organizations. The Court rejected challenges that the statute was so broad as to be effectively without standards for determining when it should be enforced, in violation of the Fifth Amendment, and challenges that it violated the First Amendment's companion rights to freedom of speech and association. The narrow scope of the ruling is cold comfort to civil libertarians.

The statute applies only to those organizations deemed terrorist by the State Department. A group so designated may appeal the designation within 30 days. In the case decided today, several groups and individuals challenged whether material support of a Tamil and Kurdish group was prohibited if it involved no more than the provision of "training," "expert advise or assistance," "service" or "personnel' to a designated terrorist group. The Court's majority opinion, written by Chief Justice Roberts, took special pains to limit the Court's holding to these four types of material assistance.

Those looking for a bright line through this dark wood of error should focus on what appears to be the test for distinguishing material support from mere support. "The statute reaches only material support coordinated with or under the direction or a designated foreign terrorist organization," Roberts wrote. Presumably, work done in support of a terrorist group but neither coordinated with the group nor directed by the group remains protected by the First Amendment.

This is a mighty thin line. The Court's sub rosa importation of the independent contractor/employeedistinction  will no doubt prove troublesome in cases to come. How do we determine when a person supporting a group is working independently or under the control of the group? While that question might be easy to determine, the question of when a supporter's activities are coordianted by a prohibited group is of necessity a far murkier issue.

At its core, the Humanitarian Law Project decision disturbs because of its reliance on the slippery slope sort of argument that justifies any assertion of government power. Although the plaintiffs in this case argued that their purpose was merely to teach groups how to petition the United Nations, Congress and other bodies for relief, the majority held that these services, which translate easily into money, are so fungible that they might free up resources for violent uses. What's more, diplomatic efforts might become time-buying ruses bent to the service of terrorist intent. All cows, Hegel once observed, look alike in the gray twilight of evening.

The dissent shreds this reasoning, and suggests that whatever deference the Court should give to findings by Congress and the Executive branch about the practices of terrorist organizations, the right to advocate for peaceable change is a core Constitutional value of ancient and venerable lineage. Frankly, I think the dissent has the better argument. Once the slippery slope analogy is adopted, there is no stopping the slide into tyranny. Consider what has become the Fourth Amendment's "reasonableness" requirement as to searches and seizures.

I read Humanitarian Law Project with a gnawing sense of uncertainly, recalling that in the days immediately post 9/11,  I was contacted by the embassy of a Middle Eastern country to represent a foreign national. The man was in custody. They feared that American intelligence agencies were working him over. It turns out those fears were unfounded, but I wondered, as I traveled to the prison to meet him, whether my Government would consider me an enemy, too, for insisting that anyone in the United States was entitled to the full protection of the law.  As the dissent in Humanitarian Law Project make clear, that question is far from decided.

I vote with the minority on this one. It ought not to be a crime to teach people to use peaceful means to accomplish their ends.


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