Analysis

With a federal government lawyer pushing for a sweeping interpretation of the government’s most-used anti-terrorism law, the Supreme Court on Tuesday at times seemed tempted to conclude that, perhaps, the law may go too far.  Although some of the Justices made it clear they were sympathetic to Congress’ attempts to stop aid to international terrorist groups, a somewhat surprising skepticism set in as the 62-minute argument in the Humanitarian Law Project cases unfolded.  Near the end, Chief Justice John G. Roberts, Jr., suggested that the “material support” law may need another airing in lower courts, with that statute perhaps having to clear a higher constitutional hurdle — an option that could make it unnecessary for the Court to decide now what swing-vote Justice Anthony M. Kennedy called “a difficult” case.

Before the Court could get to that point, it appeared, it might have to satisfy itself that a distinction can be drawn different kinds of support that Americans might provide to an organization that is on the U.S. government’s terrorist blacklist.  Several members of the Court — but especially Justice Antonin Scalia — wondered if any kind of aid to such a group necessarily can be turned into a benefit for its violent activities.  If the Court accepted that proposition, then the law would be likely to escape this challenge now before it.  But Solicitor General Elena Kagan, although advocating a very broad scope for the law, did not press that point.  She offered a number of concessions that might narrow, though only slightly, the law’s scope.   Under further questioning, however, she talked herself into some trouble in arguing that the law might make it a criminal act for a blacklisted group even to hire a lawyer to put its views before a U.S. court, or to use an American as its advocate for peaceful aims before the United Nations.

The Court was reviewing the cases of Holder v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89) as tests of a law dating back to 1996 providing up to 15 years in prison if convicted of providing “material support” to any group designated by the U.S. government as terrorist.  The law is considered vital by the government to its anti-terrorism legal campaign, as Kagan pointedly noted as she began her defense of the law, following a fervent attack on it by her opponent, Georgetown law professor David D. Cole.  Cole was questioned rigorously (especially by Justice Scalia) in trying to persuade the Court that his clients wanted only to engage in benign, humanitarian activities, and yet the points he made seemed to set the stage for even more challenging questioning of Kagan.

Cole made little headway in trying to convince the Court that it should follow its own example in the 1950s and 1960s when it was willing to tolerate some benign activities of the Communist Party.  Justice Scalia said Communists were different from terrorists; many people became Communists for philosophical reasons, the Justice said, but terrorist groups — such as Hamas — exist only to commit violence.  And Justice Kennedy said that, at the time of the rulings in the Communist cases, there was no federal law forbidding support to the Communist Party, as there now is for terrorist groups.

The professor, however, steadily pushed his argument that the material support law would, in fact, reach a good many forms of “pure political speech” of the kind he said the First Amendment protects, and that approach drew the Justices into a close examination of just what kinds of support might be banned, or allowed, by the law.  These exchanges had the apparent effect of gradually shifting the Court’s focus away from whether any kind of support would translate into aid for terrorism, to the more discrete question of whether the kinds of activities the Humanitarian Law Project wanted to pursue were covered by the law’s reach — exactly the focus that worked to Cole’s advantage.   Although Justice Scalia suggested that the Court could fill in the blanks of the law’s scope in future cases, after turning aside the particular challenge that the Project supporters were making, other members of the Court were not deterred from examining the law’s parameters.

Questioning by Justices Samuel A. Alito, Jr., and Sonia Sotomayor gave Cole a chance to make his point that the Court should interpret the material support law to be limited to the kind of aid that is provided with the specific aim of supporting violent or terrorist acts by blacklisted groups.   He told Sotomayor that there was no “reasonable likelihood” that the kinds of speech activities that the Project supporters wanted to undertake would further the terrorist aims of groups on the blacklist.

Almost from the start of Kagan’s argument, she had to deal with hypothetical scenarios that the Justices put before her to test just how far her description of the “material support’ law would reach. Justice Sotomayor started the probing, with a question about whether it would provide illegal support for a group if an attorney represented it in a U.S. court.  The Solicitor General said that would not be illegal, if the group had been charged with a crime, because it would have a constitutional right to defend itself.

Even while making some such concessions, Kagan insisted that, because the targeted groups were foreign, Congress had wide authority to pass laws to limit how Americans might interact with those groups.  And she made sure that any concession she made was only to put beyond the law actions of “independent advocacy” by Americans not directly tied to the listed organization itself.  She said that the kinds of activities the law might reach that would implicate the Constitution were a mere “thimbleful” compared to the “ocean” of support activities that the law would legitimately forbid.

“To the extent the Court thinks some of these hypotheticals raise constitutional concerns, the Court can put those off to another day,” she suggested.  That thrust, however, did not stop the Court from raising even more scenarios.  And as those questions proceeded, Kagan left Justice Ruth Bader Ginsburg puzzled about just where she was drawing the line between legal and illegal support for a listed organization.

But she was tested most aggressively when several of the Justices pressed her about the kinds of actions by attorneys that might come under the law, as she interpreted it.  She told Justices Kennedy, Sotomayor and John Paul Stevens that the law would forbid a listed group from retaining a lawyer to file a friend-of-court brief in a U.S. court on its own behalf, because that would amount to an outlawed “service” to the organization. And she told Stevens that, if one of the Project supporters involved in this case — California college professor Ralph Fertig — approached the United Nations as an agent of one of the listed groups, he would be covered by the law.

During Cole’s rebuttal argument, he had a chance to make his argument that the Court should judge the material support law applying the most difficult test — strict scrutiny — and to argue that the law could not possibly survive under that standard.  He told Sotomayor, though, that the lower courts in the case had never had a chance to analyze the case under that standard.  That was when the Chief Justice suggested that, perhaps, a remand for such an inquiry might be the proper outcome, if the Court were unwilling to uphold the law on the lesser standard Kagan had advocated.

Posted in Holder v. HLP, Merits Cases