The Supreme Court's decision in Humanitarian Law Project

This past Monday, June 21, 2010, Holder v. Humanitarian Law Project, the Sureme Court upheld the constitutionality of the criminal prohibition against "material support" to terrorist organizations even when the material support takes the form of "speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations." (Majority opinion at 21)

There's a lot to be said about this decision, but I want to focus here on one observation by the majority. Rejecting the plaintiffs' arguments that the First Amendment should protect their efforts to train a terrorist organization in the use of international dispute resolution processes, the Court says that such training might actually "benefit that organization in a way that facilitates its terrorist activities." (Majority, at 33.) This must be a possibility, just as it is possible for any resource or skill to be used for good purposes or bad. As Justice Breyer says in dissent, the logic of this argument is extremely far-reaching, for if this danger is a reason for suppressing "speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations," it is also a reason for suppressing other speech, including absolutely pure political advocacy. (Dissent, at 13-14.) The majority makes clear it is not asserting that Congress could do so, but the logic of its argument would provide a reason for upholding such laws if Congress chose to pass them.

All that is by way of background to the point I want to focus on. This point, as put by the majority, is that "[i]f only good can come from training our adversaries in international dispute resolution, presumably it would have been unconstitutional to prevent American citizens from training the Japanese Government on using international organizations and mechanisms to resolve disputes during World War II." (Majority, at 33-34.) As I've thought about the issues of this case over the years, I've worried about roughly this issue -- that the logic of the free speech critique of the "material support" law seemed to carry all the way to supporting, say, the (hypothetical) hospitals of Al Qaeda.

It appears that none of the justices believes free speech extends that far. All seem to accept that fungible resources, even if given for good ends, enable bad recipients to use other equivalent resources for their own malign purposes. Justice Breyer argues, however, that "[t]here is no obvious way in which undertaking advocacy for political change through peaceful means or teaching the PKK and LTTE [designated "terrorist organizations," one Kurdish and one Tamil], say, how to petition the United Nations for political change is fungible with other resources that might be put to more sinister ends in the way that donations of money, food, or computer training are fungible." (Dissent, at 8.)

But would US citizens have had a free speech right to teach the Japanese government methods of peaceful international dispute resolution during World War II? Doing so wouldn't really have involved the transfer of fungible resources, as Justice Breyer points out. Yet it's hard to believe that such speech would have been constiuttionally protected. If it wouldn't have been, then why would the First Amendment entitle US citizens to do the same thing for designated terrorist organizations?

I don't think that Justice Breyer offers an explicit answer to this question. But there is a possible, and at first glance straightforward, response to it: we had declared war against Japan, and in wartime free speech rights are subject to special limits. In contrast, we have not declared war against the organizations whom the Secretary of State has designated as "foreign terrorist organizations," to which the ban on material support applies. (The majority notes, at 3, that the Secretary designated 30 such organizations in 1997.)

I don't believe that the constitution requires a declaration of war as a basis for our going to war. Despite the absence of a declaration of war, therefore, I would say that our conflict with Al Qaeda is a war validly authorized by the Authorization for Use of Military Force (the AUMF), a statute passed by Congress and signed into law by President Bush in September 2001. Some might disagree with these judgments (and I'll return to one reason for disagreeing below). But even if we are at war with Al Qaeda, I do not think we have gone to war with all the various organizations designated by the Secretary of State as foreign terrorist organizations, including the Kurdish and Tamil organizations involved in this case. It's open to doubt whether Congress even could authorize the selection of targets of war by the Secretary of State, but in any event I don't think that as a matter of actual fact our statutory response to these organizations can plausibly be seen as having amounted to a national decision for war.

If the President can take us to war with anyone he or she chooses -- if President Bush had the authority to launch an actual "war on terrorism" rather than just a statutorily-authorized war against Al Qaeda -- then the question of what choices the President or his subordinates made becomes a more difficult one. But I do not agree that the President's war powers extend that far, and so I do not understand us to be engaged in a global war on terror, or even against all "designated terrorist organizations."

Assuming that the fact of a validly authorized war provides a straightforward reason for saying that US citizens had no right to teach the Japanese government -- or Al Qaeda -- techniques of peaceful conflict resolution, why didn't Justice Breyer make this point? Perhaps because it amounts to a potentially broad concession: that indeed first amendment rights can be narrowed during war, such as the war we are now in.

I would make that concession. The alternative, I think, is to make the majority's question about Japan unanswerable, or to make it answerable only as the majority would answer it -- that is, to accept that if limits on speech to the Japanese government in World War II would have been constitutional (and surely they would have been), then similar limits must always be constitutional. I think it is much better to accept that war can impose special limits, and to insist that when those special wartime rules are inapplicable, then the first amendment protects a wider range of speech.

The main problem with the approach I'm urging is that we are, right now, at war. So, it might be argued, even if the material support statute wouldn't bar training designated terrorist organizations in peaceful conflict resolution in wartime, it does bar such training right now, precisely because we are at war. But we aren't at war with these organizations (unless they are encompassed in the targets identified in the AUMF of 2001 -- essentially, all those responsible for, or harboring those responsible for, the 9/11 attacks).

It is possible to argue that we are not "at war" with Al Qaeda either, and that we should, or even legally must, consider our conflict with Al Qaeda, despite its statutory authorization in the AUMF, as something other than war. Unlike some observers, I do accept the "war paradigm" as a description of our clash with Al Qaeda, despite the fact that Al Qaeda is not a state. It seems to me that what has made our encounter with Al Qaeda so morally and legally troubling is not that we conceived of it as a war, but that we asserted that in this war we could do almost anything. That was a terrible mistake. In the same way, I think it would be a terrible mistake to go from the premise that we are at war with Al Qaeda to the conclusion that we can do almost anything to any designated foreign terrorist organization, or to the conclusion that we can restrict the speech of US citizens vis-a-vis such organizations as if we were at war with these organizations.

In short, I would accept that war can restrict speech, but insist that war is nothing like a blank check for such restrictions. None of this, however, quite answers the question of whether the Supreme Court was ultimately right to accept the particular restrictions at issue here. But if, as I've argued, we are talking about peacetime limits rather than wartime powers (because the organizations receiving "support" were not among those with which we are at war), then I'm inclined to agree with the dissenters that the risks of harm to the US from the particular kinds of speech at issue in this case are outweighed by the constitutional priority for speech.

Yet perhaps the most striking aspect of the case is that the vote in favor of the statute's application to such speech is 6-3. Justices Stevens and Kennedy, two of the most powerful voices for the rule of law over the past decade of war, concurred with their more conservative colleagues that this speech was beyond the constitution's protections. In a future post, I'll look further at the reasons why the majority justices viewed the potential harms of this speech as so substantial that the First Amendment did not protect it.