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  • Yes, Virginia, Supporting Terrorists IS a Crime

    On June 21, in Humanitarian Law Project v. Holder, the Supreme Court reaffirmed the painfully obvious – that providing material support to terrorists is a crime and that Congress’ saying so is not a violation of the Constitution.  That it took more than 10 years to reach this conclusion, and that three Justices dissented from it, says more about the ways in which lawyers construct arguments that only lawyers can believe in than it does about the reality of the world we live in, in which terrorist activities abound.

    First, a bit of background:  Since 1996, Congress has made it a crime to provide “material support or resources” to an organization the Secretary of State has designated as a “foreign terrorist organization.” The purpose of the law is to deny terrorist groups the ingredients necessary for planning and carrying out attacks.

    One of the key ingredients in the law was  a prohibition on virtually all types support, including both tangible support such as money, goods, and materials and also less concrete support, such as “personnel” and “training.”  Recognizing that any form of support might benefit the organization, Congress made the ban near total.  It was concerned, for example, that terrorist organizations with charitable or humanitarian arms were raising funds within the United States that could then be used to further their terrorist activities. Money is, after all, fungible. And so, the law outlawed any support to these groups, irrespective of whether that support was intended for humanitarian purposes.

    The designated terrorist organizations are the ones you would expect to be listed – Al Qaeda, for example as well as others like the late, little-lamented Tamil Tigers, who waged a cruel terrorist war in Sri Lanka until they were recently defeated in a decisive military action. To protect against wholly innocent activity, in 2004 the law was clarified to make clear that anyone who gave support to a designated terrorist organization, is a criminal only if he had “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.”

    Congress also made clear that purely independent speech that might advocate on behalf of terrorist organizations, but was not a public relations campaign coordinated with or directed by the terrorist organization, was protected.  Thus, Congress took two steps that we have long advocated:  It carefully defined the elements of the crime to exclude pure speech, and it enacted a strong criminal intent requirement, to make sure that only those who knew that the organization they were providing support to was a terrorist organization would be punished.

    So who could oppose a statute narrowly tailored to prevent someone from providing tangible support to organizations he knows are terrorist organizations?  Well, it turns out that a number of international law activists objected to the law.  They raised two arguments:  First, that prohibiting them from helping terrorist groups learn how to use peaceful means of conflict resolution violated their First Amendment rights to free speech and association; and, second, that words like “training” and “services” and “support” were inherently vague and couldn’t be used in a criminal statute.

    The Supreme Court’s decision wisely rejected these challenges.  As to the “vagueness” argument, the Court held that the words were sufficiently clear that a “person of ordinary intelligence” could determine their meaning and understand what was prohibited.  Indeed, the issue was so easily resolved that all 9 Justices agreed that the law was not vague.

    The Justices split, however, on the question of whether political activists could be prohibited from providing support to a terrorist organization through training in peaceful dispute resolution.  Six justices of the Court recognized, as did Congress and the Obama Administration, that any support to certain violent terrorist organizations is likely, in the end, to aid and abet the criminal and terrorist ends of those groups, no matter how well-meaning that support is.  And they recognized, as well, that free speech was only mildly constrained –if at all.  Those who wished to do so could continue to argue publicly on behalf of the Tamil Tigers. They simply could not help the Tigers directly, by providing them with assistance such as training and technical assistance.

    This seems to strike the right balance.  As the Court recognized, the federal government’s duty to provide for the common defense and protect against activities by foreign terrorist organizations is one of its most solemn constitutional obligations.  Characterizing the provision of material support to a foreign terrorist group as “free speech” simply because some speech is involved does not cloak it with First Amendment protections any more than teaching a terrorist how to make a bomb is free speech.  What Congress has said, what the Obama Administration has argued, and what the Court has now held, is that certain foreign organizations are simply beyond the pale.  In saying so, the Court got it right.

    Posted in Legal [slideshow_deploy]

    7 Responses to Yes, Virginia, Supporting Terrorists IS a Crime

    1. Corey, Perrysburg, O says:

      @Hertigage: Great job, keep up the good work. However…. we rely on you to keep us informed of EVERYTHING related to Constitutional Liberty and yet nowhere in this article did you mention the names of those three justices that dissented, nor a link to an article that might. I, for one, would like to write some letters!! That's just my two cents. Keep up the good work!

    2. Maryland says:

      It is about time we got this decision. It clarifies a lot of things. If Jimmy Carter helps terrorists, he will get a ride because he is trying to make peace. What should happen to him is he needs to go to jail but they won't. The left loves the creep.

    3. FeéVert, SoCa says:

      Whom do we persecute for giving hundreds of millions

      of taxpayer dollars to hamas, muslim brotherhood, etc.?

    4. Jerry Sabo says:

      this is more proof that we as americans are slowly losing our country. Why and the hackl would we have to allow a court to decide on subversive actions whether they are legal or not. Another nutjob!

    5. Lynn Bryant DeSpain says:

      The Constitution was written so that a man of Common reasoning could read and understand its meaning. That basis was upheld by the U.S. Supreme Court in the 1990's.

      It has always been illegal to give aid and comfort to an enemy of either the Federal Government or a State. This includes Terrorist, and all Criminals, including Illegal aliens!

    6. SANDEE HERZOG says:

      Common sense seems to be lacking here..not seems to it is. For goodness sakes why did it take 10 years? And we are losing our country and it's the fault of those, like the ones above (which are not named) working against not for the United States of America. I'm disgusted by this and concerned.

    7. Drew Page, IL says:

      FeeVert in S. California asks an important and pertinent question. Sending millions/billions in foreign aid to Hamas is in fact aiding and abetting the enemy, that is if there is truly a war on terror.

      Who is it in our government that came up with the nonesense of negotiating with the "moderates" in Hamas? Should the United States be negotiating with and providing aid to "moderate child molesters", "moderate rapists" or "moderate serial killers"? Should we be looking for common ground with "moderate suicide bombers" and/or the "moderate haters of America"? My answers to these question puts me squarely in the "Party of No". I'd like to know who out there wants to be included in the "Party of Yes".

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