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Transcript of Oral Argument in Holder v. Humanitarian Law Project

Ralph Fertig, President, Humanitarian Law Project

Ralph Fertig, President, Humanitarian Law Project

A previous post noted that oral argument was to be held last Tuesday in Holder v. Humanitarian Law Project. The transcript from the oral argument  can be found here.

In case you missed it, the New York Times described the oral argument as follows:

The Supreme Court struggled Tuesday to balance the constitutional rights of humanitarian aid groups with the 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 group 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 Turkish outfit a terrorist organization in 1997. They also wanted give similar help to a group in Sri Lanka, 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 Constitution. ”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 administration urged the court to reject the challenge. Any aid to terrorist groups ”strengthens them in everything they do,” Solicitor General Elena Kagan said. Kagan 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 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, said 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 said 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 by late June.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.