Terrorist Support Case Hints Kagan May Move to the Left

Ken Klukowski
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Posted: Jun 23, 2010 12:01 AM
Terrorist Support Case Hints Kagan May Move to the Left

Monday’s Supreme Court case on supporting terrorism saw retiring Justice Stevens side with the conservatives, while Justice Sotomayor went the opposite way. This suggests that Elena Kagan could move the Court to the left on national security.

On June 21, the Supreme Court handed down its decision in Holder v. Humanitarian Law Project (HLP). In this case, the Supreme Court considered whether a federal law that forbids providing “material support” to terrorist organizations is unconstitutional. By a 6-3 vote, the Court held that it is not.

The federal law referred to as the “material support statute” makes it a crime to provide any sort of valuable aid or support, such as collaborating with, any organization that the U.S. secretary of state designates as a terrorist organization. HLP likes to train and advise groups on international law and how to petition organizations such as the United Nations to receive monetary aid and other relief for their organizations. Two of the organizations HLP would like to instruct and advise have been designated terrorist organizations.

HLP managed to make three challenges to the material support statute that made it all the way to the Supreme Court. The first is whether the law is “void for vagueness,” and the others are whether it violates the First Amendment rights of free speech or free association.

The Court unanimously held that this law is not void for vagueness (a doctrine I explained when I first covered the February 24arguments in this case for Townhall), because it is clear that the words of this statute specifically ban “training” and “expert advice or assistance.” Although other parts of it might be vague to other plaintiffs, there’s no question that it includes what HLP wants to do here.

Glenn Beck

The next question is the First Amendment challenge, whether it violates HLP’s free speech right to teach and advise anyone, including designated terrorist groups, in how international law works and how those groups could obtain international relief.

The Court majority held that prohibiting HLP from having training sessions with these terrorist groups does not violate the First Amendment, although the Court (thankfully) rejected the scope of power to regulate speech claimed by the Obama administration because it was “extreme.”

In an opinion by Chief Justice John Roberts, the Court started by noting that both Congress and the (former) president (Bush 43) found that it was impossible to distinguish between legitimate activities and terrorist activities when it comes to these groups. Both branches found that any support for terrorist groups strengthens their ability to conduct terrorist operations. For example, even money given to them for non-terrorist purposes enables them to free up more funds for terror, or even to redirect the aid funds to bombs and killings.

Chief Justice Roberts noted that one of the terrorist groups HLP wants to help has already used petitioning for international aid as an ruse to buy them a reprieve, enabling them to recoup their losses, rest, and plan new attacks.

This law does not violate free speech because HLP can still say whatever they like. They can hold press conferences, conferences, give speeches, and say whatever they want to express support for these organizations or their goals. All they cannot do is that they can’t advise and train these groups on how they can use international law and various relief systems. HLP can independently speak on these topics; they just cannot collaborate with these terrorists.

Nor does this law violate the First Amendment freedom of association. It doesn’t say you can’t be a member of these terrorist groups. It just says use can’t provide material support to them.

This is an as-applied challenge. That means instead of seeking to strike down the statute, it only sought the Court to hold that the statute cannot ban the specific types of activities that HLP does. This decision leaves the door open for different ways that the law could be unconstitutionally applied, and we might see follow-up lawsuits on those issues.

Justice Stephen Breyer took the unusual step of reading his dissent from the bench, joined by Ruth Bader Ginsburg and Sonia Sotomayor. Justice Breyer argued that talking with these terrorists is protected by the First Amendment, even if it allows these terrorist groups to abuse that information to advance their terrorist goals.

What’s especially interesting here is that even the liberal Justice John Paul Stevens voted with the conservatives to uphold this law. Stevens is the last military veteran on the Supreme Court, and it informs his understanding of the scope of federal power to protect national security.

President Obama’s only Supreme Court appointment thus far, Justice Sotomayor, voted to strike down this statute. National security would be endangered by reading the Constitution in such a way that it protects the ability to advise terrorists on how they can help themselves.

Many years ago, Justice Robert Jackson famously said that the Constitution is not a suicide pact; it shouldn’t be interpreted in a way that endangers the security of American citizens against foreign threats. With Elena Kagan being considered for the Supreme Court, the question is how will she read the Constitution? Does she understand it the way Justice Stevens does, whom she would replace? Or does he read it the way Justice Sotomayor does?

If it’s the latter, then this case shows that confirming Kagan wouldn’t just substitute one liberal for another; Elena Kagan would move the Court to the left.