Supreme Court To Hear Major National Security Case

The Supreme Court has decided to take a bundle of cases that could change the way the Justice Department prosecutes terrorism suspects and could well change the way current prosecutions of Guantanamo Bay detainees are disposed of.  At first glance, in Holder v. Humanitarian Law Project, the stakes don't seem that important: they involve the definition of a few words. But the way the government has defined those words -- "train" -- "expert," "advice," "assistance," "personnel" -- are bound up with the way prosecutors determine whether someone has given material support to a terrorist and is therefore liable for terrorism conspiracy charges. 

The law goes back to 1996, and makes it a crime to provide "material support" to terrorists. It has been challenged several times on the grounds that it forbids conduct that is protected by the first amendment, such as advocating in public for a cause or passing out pamphlets for recruitment. The Patriot Act expanded the definition of what constitutes material support to include "expert advice or assistance," which allowed the Justice Department to prosecute people like John Walker Lindh, under the statute. Since 9/11, the law, 18 U.S.C. 2339B(a)(1), has been used as a fallback weapon against suspect terrorists who didn't commit acts of terrorism and who could not be directly linked to ongoing terrorist conspiracies.

Needless to say, the vagueness of the statue has bothered criminal defense lawyers and civil libertarians for years, and Congress and the courts have tinkered with the language.

In 2003, an appeals court found that the law wouldn't be constitutional unless the alleged material-support-provider knew that the group to which support was provided was engaged in illegal terrorist stuff or that the group itself had been designated as a terrorist group. In other words, in order to provide material support to a terrorist group, a reasonable person ought to have a basic level of knowledge about the group's past and future motivations.  In 2007, as part of the Intelligence Reform and Terrorist Prevention Act, Congress added this so-called "mens rea" requirement to the law.

Whoever knowingly provides material support or
resources to a foreign terrorist organization, or
attempts or conspires to do so, shall be fined under
this title or imprisoned not more than 15 years, or
both, and, if the death of any person results, shall be
imprisoned for any term of years or for life.
18 U.S.C. § 2339B(a)(1) (emphasis added).

The term "material support or resources" includes:
any property, tangible or intangible, or service,
including currency or monetary instruments or financial
securities, financial services, lodging, training,
expert advice or assistance, safehouses, false documentation
or identification, communications equipment,
facilities, weapons, lethal substances,
explosives, personnel (1 or more individuals who
may be or include oneself), and transportation,
except medicine or religious materials.

These changes did not meet with the approval of the plaintiffs. The appeals court disagreed, but the Supreme Court will have to clarify whether there remains a distinction between knowing that a group has ties to terrorism and providing support to that group in order to further the terroristic ends to which the group has committed itself.  The doctrine here is that "evil minds" must accompany "evil hands."  More urgently, the appeals court did agree that several terms defined by the government remain too vague.  (To wit: "Because we find it highly unlikely that a person of ordinary intelligence would know whether, when teaching someone to petition international bodies for tsunami related aid, one is imparting a "specific skill" or "general knowledge," we find the statute's proscription on providing "training" void for vagueness.")  On the issue of whether the word "personnel" remain too vague, the appeals court found that Congress had sufficiently defined it. But plaintiffs disagree.

As Robert Chesney of the University of Texas has written, the "material support statue is an important tool in the DOJ counterterrorism arsenal. ... And some of these terms -- particularly the "personnel" term -- are especially important in determining which defendant can be linked to a terrorist organization but not to a particular plot."