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High court weighs conflicting values of speech, safety

By The Associated Press
02.23.10

WASHINGTON — The Supreme Court struggled today to balance the constitutional rights of humanitarian aid groups with the U.S. government's efforts to combat terrorism.

The issue arose in a challenge by aid groups and individuals to parts of a key anti-terror law that bans "material support" to foreign terrorist organizations, even when that support consists of training and advice about entirely peaceful and legal activities.

The aid groups involved had trained a Kurdish group based in Turkey on how to bring human rights complaints to the United Nations and assisted them in peace negotiations, but suspended the activities when the U.S. designated the Kurdish group, the Kurdistan Workers' Party, or PKK, a terrorist organization in 1997. They also wanted to give similar help to a group in Sri Lanka, the Liberation Tigers of Tamil Elan, but it, too, was designated a terrorist organization by the U.S. in 1997.

Several justices seemed unsure how to resolve a dispute in which they acknowledged legitimate points on both sides. It is the Court's first look at a terrorism-related criminal law since the Sept. 11, 2001, attacks.

"This is a difficult case for me," declared Justice Anthony Kennedy, who often provides the decisive vote that delivers a Court majority.

The humanitarian groups, backed in this case by former President Jimmy Carter, say the law makes a crime out of speech — in violation of the First Amendment. "The government has spent a decade arguing that our clients cannot advocate for peace," David Cole, the lawyer for the aid groups and individuals, told the Court.

The Obama administration urged the Court to reject the challenge. Any aid to terrorist groups "strengthens them in everything they do," said the U.S. government's top lawyer, Solicitor General Elena Kagan. She emphasized the material-support law's importance, calling it a "vital weapon" in combating terrorism.

The argument took place a day after 25-year-old Najibullah Zazi pleaded guilty in New York to providing material support to al-Qaida, among other charges, as part of a plan to attack the New York subway.

Nearly four dozen organizations are on the State Department list, including al-Qaida, Hamas, Hezbollah, Basque separatists in Spain and Maoist rebels in Peru.

The humanitarian groups, including the Humanitarian Law Project; Ralph Fertig, a civil rights lawyer; and Dr. Nagalingam Jeyalingam, a physician, want to offer assistance to the Kurdistan Workers' Party in Turkey or the Liberation Tigers of Tamil Eelam in Sri Lanka.

The government says the Kurdish rebel group, known as the PKK, has been involved in a violent insurgency that has claimed 22,000 lives. The Tamil Tigers waged a civil war for more than 30 years before their defeat last year.

Justice Sonia Sotomayor was among those who suggested the law could be too broad.

"Under the definition of this statute, teaching these members to play the harmonica would be unlawful," Sotomayor said.

Kagan replied, "The first thing I would say is there are not a whole lot of people going around trying to teach al-Qaida how to play harmonicas."

Justice Antonin Scalia, who seemed most receptive to the government's argument, interjected: "Well, Mohamed Atta and his harmonica quartet might tour the country and make a lot of money. Right?"

Scalia was referring to the lead Sept. 11, 2001 hijacker.

Supporters of the aid groups have invoked the specter of McCarthyism in a law they say subjects U.S. citizens to prison merely for speech.

Former President Carter, whose Carter Center seeks to mediate international disputes, says the law threatens the work of groups that share the government's goal of ending terrorism.

"Our work to end violence sometimes requires interacting directly with groups that have engaged in it," Carter said in a written statement.

On the other side, the Anti-Defamation League says the law is a reasonable approach to fighting terrorism that does not infringe on constitutional rights.

The administration, defending a law that has been on the books since 1996 and modified twice since then, said there is no limit on speech because people can say whatever they want in support of terrorist groups and even may, in one example Kagan batted around with Kennedy, call on a group to lay down its arms.

But that advice crosses the line into illegal activity when it becomes a manual on how to approach the United Nations and lobby for aid, Kagan said.

The reason for this, she said, is "you've given them an extremely valuable skill that they can use for all kinds of purposes, legal or illegal."

The Court is expected to issue its decision in Holder v. Humanitarian Law Project by late June.


Previous
High court to examine anti-terrorism law
Justices agree to review 9th Circuit ruling that portions of law, which criminalizes providing 'material support or resources' to designated terrorist groups, are unconstitutional. 09.30.09

Related

Court to hear case on material support for terrorists

By Tony Mauro Humanitarian groups argue law preventing them from providing lawful, nonviolent training is too vague. 10.01.09

Justices skeptical of anti-terror speech rules

By Tony Mauro Government's assertion in Holder case that filing legal briefs might constitute 'material support' for terrorists appears to shock bench. 02.24.10

2009-10 Supreme Court case tracker

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