The Worst Supreme Court Decision of the Term

Echoes of Lawfare
By JOANNE MARINER

What was the worst ruling of the Supreme Court term that just ended? Citizens United v. Federal Election Commission, the corporate campaign spending decision that President Obama criticized in January, could make a strong claim to that title, but defenders of the First Amendment would point to the Court's ruling two weeks ago in Holder v. Humanitarian Law Project.

The Humanitarian Law Project case involved peace and human rights activists who sought an injunction that would allow them to advise and train militant groups to use lawful means to achieve political ends. Specifically, the plaintiffs wanted to train Kurdish nationalists in Turkey on how to use international law to resolve disputes peacefully, and how to petition 'representative bodies such as the United Nations" for relief. They also wanted to engage in political advocacy on behalf of the Kurds in Turkey and the Tamil Tigers in Sri Lanka.

Both of the groups with which the plaintiffs sought to communicate had been deemed 'foreign terrorist organizations" under US law. Because of this designation, the plaintiffs' proposed speech was arguably barred by a federal law that criminalizes the provision of 'material support" to terrorist organizations, including support in the form of training, expert advice, personnel, and services.

The Court acknowledged that the case involved content-based restrictions on speech, normally an area in which the First Amendment requires the judiciary to enforce stringent protections against government overreaching. Yet in a 6-3 decision, the Court's conservative majority, joined by departing Justice John Paul Stevens, rejected the plaintiffs' claims. The Court found that the government's compelling interest in preventing terrorism outweighed the plaintiffs' free speech rights.

Indeed, it reached this conclusion without even asking the government to provide empirical evidence to show that the goal of preventing terrorism would actually be served by the speech restrictions at issue.

Heavy Sentences for Negotiating Peace

Human Rights Watch, together with the Carter Center, the International Crisis Group, and several other peace, human rights, and humanitarian aid groups, filed an amicus brief in support of the plaintiffs in Humanitarian Law Project. Noting that the challenged statute imposes sentences of up to 15 years in prison for the crime of providing advice and training to a designated 'foreign terrorist organization," the groups explained how their own activities might potentially expose them to such penalties.

The groups were unanimous in their condemnation of terrorism and terrorist methods. But as they told the Court, 'peace-making, conflict resolution, human rights advocacy, and the provision of aid to needy civilians sometimes requires direct engagement with groups and individuals that resort to or support violence," including those that have been designated as terrorist.

The Carter Center, for example, said that in the course of trying to address bloody conflicts in places like Uganda, Nepal and Gaza, its representatives might meet with members of armed factions to seek to mediate peaceful solutions. Human Rights Watch offered concrete examples of meeting with designated terrorist groups like the FARC, the ELN, and the LTTE (also known as the Tamil Tigers), in order to confront them with evidence of human rights violations and advise them of their obligation to respect international law.

The human rights and humanitarian aid groups explained their logical understanding of the First Amendment's reach. 'If a U.S. human rights organization issues a report that documents the LTTE's use of child soldiers, condemns the practice, lists a set of concrete recommendations it believes the LTTE should adopt to cease the abuse, and provides specific advice as to how the LTTE should implement the recommendations in practice, there is surely no doubt that this activity is fully protected by the First Amendment," their brief argued. 'The mere fact that it is communicated to the LTTE (an entity engaged in some illegal conduct) rather than The New York Times editorial board cannot remove this kind of peaceful speech and advocacy from constitutional protection."

Echoes of Lawfare

The Court's opinion in Humanitarian Law Project backed away from decades of First Amendment caselaw, including landmark rulings from the Cold War era. It deferred to the government's argument that national security interests justified restrictions on plaintiffs' speech, even though the claim lacked empirical support, stating that where national security is concerned, conclusions can 'be based on informed judgment rather than concrete evidence."

In speculating about how designated terrorist groups might gain dangerous benefit from skills imparted by the plaintiffs, the Court's tone was especially harsh. Echoing right-wing critics of 'lawfare," the Court mused that a terrorist group that was familiar with the international legal system might use this expertise "to threaten, manipulate, and disrupt." Its portrayal of international law as a tool in the hands of terrorists was reminiscent of hardline ideologues from the Bush Administration.

But unfortunately, although the Bush Administration litigated the Humanitarian Law Project case up through the courts, the final Supreme Court judgment belongs to President Obama. It was appropriate, in fact, that the decision in Humanitarian Law Project was issued just before the beginning of confirmation hearings for Obama's latest Supreme Court nominee, Elena Kagan. Kagan, during her time as Solicitor General, argued the government's appeal of the case before the Supreme Court; her aggressive advocacy is reflected in the opinion.