Supreme Court Upholds Material Support Law

By The Investigative Project on Terrorism (IPT)

The Department of Justice won a major victory Monday when the U.S. Supreme Court upheld the constitutionality of the "material support" statute. In a 6-3 opinion announced by Chief Justice John Roberts, the court held that the Constitution does not preclude the government from criminalizing speech and other forms of advocacy in support of designated Foreign Terrorist Organizations (FTO), even if the intent is to support the group's "peaceful or humanitarian" efforts.

Under U.S. law, it is a crime for any person to provide "material support or resources" to a designated FTO. Known as the "material support" law, 18 U.S.C. § 2339B has become a cornerstone in U.S. counter-terrorism efforts. Since 2001, the U.S. has charged approximately 150 defendants with violations of the statute, and to date approximately 75 people have been convicted.

The statute defines "material support or resources" as:

"any property, tangible or intangible, or service, including currency or monetary instrument 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" (emphasis added).

The Court began by rejecting the argument that the statute was violated the Fifth Amendment because it was unclear to an ordinary person what type of activity was actually prohibited. Explaining that "perfect clarity and precise guidance have never been required," the majority found the statute was sufficiently clear in what conduct was proscribed:

"Of course the scope of the material-support statute may not be clear in every application. But the dispositive point here is that the statutory terms are clear in their application to plaintiffs' proposed conduct, which means that plaintiffs' vagueness challenge must fail."

Next, the Court rejected the claims that the law violated free speech and free association guarantees in the First Amendment. Those challenging the statute sought to provide non-violent resources to support the humanitarian and peaceful efforts of terrorist organizations. The Court found that not only was there no distinction between the violent and non-violent wings of terrorist groups, but that terrorist groups benefit from any support given to them.

The case on appeal involved groups and individuals who wanted to support the humanitarian and political activities of the Kurdistan Workers Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE)—groups that were designated as FTOs in 1997.

Hoping to continue supporting the PKK and LTTE, the petitioners challenged the law, aiming to have it struck down as unconstitutional. As they explained in their opening brief to the court, "plaintiffs here seek only to safeguard their right to promote lawful, nonviolent activities through pure speech," and the statute violated their First and Fifth Amendment rights by preventing them from doing so.

Rejecting each of the challenges, the Court conceded that the PKK and the LTTE may engage in political and humanitarian activities. But overwhelming evidence also showed that both groups have committed numerous acts of terrorism, some of which have harmed Americans. In light of the dual-use qualities of terrorist organizations, the Court went on:

"Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question. When it enacted section 2339B in 1996, Congress made specific findings regarding the serious threat posed by international terrorism. One of those findings explicitly rejects plaintiffs' contention that their support would not further the terrorist activities of the PKK and LTTE: 'Foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.'"

Read our full report by Stephen I. Landman here.