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The “material support” statute, 18 U.S.C. § 2339B, makes it a crime (punishable by up to 10 years in prison) to provide “material support” to any foreign organization the Secretary of State has designated as terrorist. “Material support” is defined in the statute to include almost any kind of support for blacklisted groups, including humanitarian aid, training, expert advice, “services” in almost any form, and political advocacy. The Patriot Act broadened these provisions in the wake of 9/11.
The Center for Constitutional Rights (CCR) contends that these material support provisions violate the First Amendment as they criminalize activities like distribution of literature, engaging in political advocacy, participating in peace conferences, training in human rights advocacy, and donating cash and humanitarian assistance, even when this type of support is intended only to promote lawful and non-violent activities. Nonetheless, the Supreme Court recently upheld the government’s broad reading of the statute to criminalize speech in the form of coordinated political advocacy.
CCR’s principal complaint is that the material support statute imposes guilt by association by punishing moral innocents not for their own culpable acts, but for the culpable acts of the groups they have supported. The statute does not require that organizations must show intent to further terrorist or other illegal activity to be charged. CCR also believes that the statute is unconstitutionally vague and that the Secretary of State's power to designate groups is too broad, giving the Executive too much discretionary power to label groups as “terrorist” and turn their supporters into outlaws.
Material Support in Legal Cases
The material support statute has played a major role in some of the government's more dubious terrorism prosecutions in the wake of 9/11. John Walker Lindh was charged with providing “material support” when the government lacked sufficient evidence to pursue treason charges against him.
Other high-profile post-9/11 material support cases include:
In all these cases, the defense claimed the evidence was too thin to support more substantive terrorism charges, and that the “material support” allegations were overly vague.
CCR Cases Challenging Material Support
CCR’s Humanitarian Law Project litigation consists of three cases, one filed pre-9/11 and the other two after, which challenge the material support statute and similar restrictions created after 9/11.
The lead plaintiff in these cases was the Humanitarian Law Project (HLP), a Los Angeles-based non-profit with consultative status to the United Nations that advocates for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law. HLP wanted to assist the Kurdistan Workers' Party (PKK) with conflict resolution and human rights monitoring in Turkey.
Also represented in the cases were several Tamil-American organizations and two individuals seeking to provide medical assistance to tsunami victims and expertise to improve healthcare in war-ravaged northeast Sri Lanka, which would require working with the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka. Both the PKK and the LTTE have been designated as “terrorist” organizations by the State Department.
In light of the government’s current fervor to use the label of terrorism as a brand for groups and organizations that are not toeing the line on U.S. foreign policy, these challenges to the criminalization of what have long been understood to be constitutionally protected activities were vitally important.
In June 2010, the United States Supreme Court rejected CCR’s challenge against the criminalization of political speech and humanitarian aid in Holder v. Humanitarian Law Project.
The decision marks the first time that the Supreme Court has held that the First Amendment permits Congress to make pure speech advocating lawful, nonviolent activity-human rights advocacy and peacemaking-a crime. Doing so can land a citizen in prison for 15 years, all in the name of “fighting terrorism.”
The Court's ruling leaves it unclear whether publishing an op-ed or submitting an amicus brief in court arguing that a group does not belong on the list is a criminal act is prohibited. What is clear is that the Court's decision is likely to cast a broad chill over political speech and the activities of humanitarian groups and journalists.