Security and Liberty Balance Tips a Bit

Terrorism experts call it 2399B, after its sub-section in the U.S. Code. Known more popularly as the ban against material support to terrorist groups, it's been sort of a catch-all charge for federal prosecutors after 9/11. It was expanded to include people picked up outside the United States well after a bunch of folks had been shipped off to Guantanamo Bay. A big irony: had the expanded statute been in existence on 9/11, the feds could have used it and brought the detainees to the U.S., OR they could have used it later on, when the Bush administration began to rethink its approach to combating terrorism. The statute of limitations has run out, and, of course, current Gitmo detainees picked up before the law's expansion are not subject to its provisions.

This discursion is a way of showing how critical this law is to the concept of terrorism that Obama embraces, one that emphasizes the rule of law and aggressive law enforcement/intelligence/prosecutorial tactics. There had been some question about whether the material support statute was too broad ... if, for example, help was provided to a terrorist group that could not be construed to have actually helped the group further its terroristic goals.

But in a 6 to 3 ruling today, the Supreme Court held that, with some long-standing exceptions, providing legal and other "expert" assistance to terrorist groups is fair game for triggering the statute. The decision in Humanitarian Law Group v. Holder reverses a 9th Circuit ruling declaring that some parts of the statute were unconstitutional. The plaintiffs argued that they were helping two organizations, the PKK (the Kurdistan Workers Party) and the LTTE (Sri Lanka's Tamil Tigers), with non-violent activities and that the government has no right to restrict the free speech rights of citizens who want to advocate for non-violent causes. The Court today held that "independent advocacy" is fine, but that providing any sort of technical advice to the groups themselves materially assists them in a way that could legitimize their other actions ... If the government could make that case, at least, it would have the right to prosecute.

 Writing for the dissent, Justice Breyer noted that "[a]ll the activities involve the communication and advocacy of political ideas and lawful means of achieving political ends," and the Court was simply using the facade of potential future action to deny legitimate groups their free speech rights in the here and now. National security, he said, does not "require the automatic forfeiture" of first amendment rights.