Sunday, June 27, 2010

Statutory interpretation in Holder v. Humanitarian Law Project

I wrote in yesterday's post that I am inclined to agree with Justice Breyer's conclusion, in his Humanitarian Law Project dissent, that the application of the "material support" law to such speech as training in peaceful dispute resolution techniques was unconstitutional. Having reached this conclusion, however, Justice Breyer goes on to invoke a canon of statutory interpretation that calls for reading statutes so as to avoid serious constitutional problems where such an interpretation is "fairly possible." (Breyer, dissenting at 17.) He then argues that it is "fairly possible" to construe the material support statute to require the government "to show, at a minimum, that ... [the] defendants provided support that they knew was significantly likely to help the organization pursue its unlawful terrorist aims," or that it was their "'conscious objective' (or purpose) to further those same terrorist ends." (Id.)

This effort to avoid the constitutional problem posed by the statute is problematic, I think, for two reasons.

First, it is not entirely clear what the limiting interpretation means. Breyer has already argued that the slim chance that training terrorist organizations in peaceful dispute resolution systems would promote terrorism is not, in general, a constitutionally sufficient basis for prohibiting such speech. But what if the trainers actually knew that the training they were providing was "significantly likely to help the organization pursue its unlawful terrorist aims," or had the conscious purpose of helping the organization achieve its unlawful terrorist aims? One answer might be that if these facts are proven, then indeed the trainers are guilty of violating the statute, and as a general matter Breyer endorses precisely this answer, at page 18 of his dissent.

But he qualifies this answer in one respect. At pages 17-18, he says that "knowledge or intent that this assistance (aimed at lawful activities) could or would help further terrorism simply by helping to legitimate the organization is not sufficient." In support of this limit, Breyer invokes arguments he has earlier presented, to the general effect that the First Amendment protects certain forms of speech -- such as membership in an organization which has unlawful objectives, so long as the member herself supports only the organization's lawful goals -- despite their potential legitimating impact on everything the organization does. But Breyer's qualification goes further than that argument seems to justify. If indeed someone intends to "help further terrorism" by legitimating the terrorist organization, why shouldn't that person's efforts count as unlawful "material support"? Perhaps just knowing that this would happen shouldn't take one outside the First Amendment's protection, but intending it seems like a crime.

There is another internal oddity to this interpretation. The statute bars knowing provision of a wide range of forms of material support, but Justice Breyer would apply his special requirement -- the government prove the defendant's knowledge or purpose of furthering terrorism -- only to material support by speech or association. Distinguishing other forms of material support, such as the provision of currency or property, he writes that "[t]hose kinds of aid are inherently more likely to help an organization's terrorist activities, either directly or because they are fungible in nature. Thus, to show that an individual has provided support of those kinds will normally prove sufficient for conviction (assuming the statute's other requirements are met). But where support consists of pure speech or association, I would indulge in no such presumption." (Breyer, at 20.) This logic not only means that the same statutory language calls for different kinds of proof of the defendant's state of mind depending on which form of support he or she is alleged to have provided (as the majority critically observes, at 12), but it also seems to say that knowledge or intent is actually required in all cases, yet can be presumed to exist in the non-speech/association cases. Presuming an element of a criminal offense, however, is itself problematic. Perhaps, though, Justice Breyer meant only to say that provision of other forms of support is so inherently blameworthy that it can be criminalized without requiring any requirement that the actor know or intend his/her acts to aid terrorism -- rather than to say that such knowledge or intention must be present, but can be presumed.

Second, and putting to one side the problems just discussed, it is also not clear that the statute can bear this interpretation -- that is, it's not clear that this reading is indeed "fairly possible." Breyer's argument for it is ingenious. He says that the statute prohibits only material support, that "material" means "being of real importance or great consequence," and that "if the statute applies only to support that would likely be of real importance or great consequence, it must have importance or consequence in respect to the organization's terrorist activities." (Dissent at 18-19.) Since the statute penalizes only "knowingly" providing material support, he reasons, the actor must have known that the support he or she was providing was material, or in other words that it was "significantly likely to help the organization pursue its unlawful terrorist aims."

The problem with this interpretation is that despite its logical appeal, it does not take account of another section of the statute. The prohibition on knowing provision of material support appears in 18 USC 2339B(a)(1). The definition of material support is in a separate provision, section 2339A, but in 2339B(a)(1) itself Congress provides that "[t]o violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization ..., that the organization has engaged or engages in terrorist activity..., or that the organization has engaged or engages in terrorism..." (ellipses in the quotation by the Court, majority opinion at 11). With this language, the Court writes, "Congress plainly spoke to the necessary mental state for a violation of [section] 2339B, and it chose knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities." (Id.) The majority also notes that Congress wrote state-of-mind requirements akin to Justice Breyer's into other, related statutory provisions, but did not include them here. (Majority opinion at 11-12).

To decide whether 2339B(a)(1) made Justice Breyer's interpretation not "fairly possible" is to make a judgment rather than a statement of fact. The meaning of "fairly possible" is itself subject to interpretation and might be read with great flexibility. Justice Breyer cites an earlier case apparently equating "fairly possible" with "not plainly contrary to the intent of Congress," and two other Supreme Court cases whose understanding of "fairly possible" sounds very broad indeed. (Breyer, dissenting, at 21-22.) Moreover, there are few, if any, absolute rules of statutory interpretation, and so again the dimensions of what is "fairly possible" must always be subject to argument. Finally, Justice Breyer points to several moments in the legislative history of the statute that are consistent with his interpretation (id. at 20-21) -- though in contemporary Supreme Court jurisprudence the status of legislative history as a guide to interpretation is dubious.

I would be inclined to read the text as too clear to permit Justice Breyer's interpretation if it were not for one further provision of the text itself: section 2339B(i), which says that "[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States." Read literally, this provision directs the courts not to adopt any reading of the rest of the statute that would violate the constitution. Can it be read literally? Perhaps not. It may be that the separation of powers between the legislature and the judiciary bars Congress from telling the courts to say that night is day so as to avoid a breach of the constitution. Perhaps the bounds of interpretation remain what is "fairly possible." But I would see this statute as at least directing the courts to understand the bounds of their "fairly possible" interpretive discretion as broadly as ... possible, and with that interpretive boost I conclude, in the end, that Breyer's interpretive move is fundamentally appropriate. It remains somewhat internally problematic, however, for the reasons I explained earlier.

The question of statutory interpretation, in any event, is not the central one posed by the case. The key issue is the meaning of the constitution. On that, as I've said, I think Breyer has the stronger argument -- though I will have more to say about the arguments on the constitutional issue in a future post.

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