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Brief: Pare down Patriot Act

Posing a major test of the sweeping scope of the government’s most-used legal weapon against “terrorism,” six groups and two individuals urged the Supreme Court on Monday to pare down key provisions of the USA Patriot Act.  The government interprets those provisions so broadly, the new merits brief argued, that it would be a crime for anyone linked to a group labeled “terrorist” to teach English, lobby in Congress or the United Nations, or advocate benign help for such a group “on television or in the print press” — all presumably legal activities.

The Court on Sept. 30 agreed to hear two separate cases on the validity of the Patriot Act’s ban of “material support” to a group designated by the government as “terrorist.”  While the cases raise separate legal questions, the two sides agreed — with the Court’s permission — to have each side address all of the dispute in each’s brief on the merits. (The joint motion to revise the briefing schedule is here; it was granted Nov. 2.)  The Humanitarian Law Project, plus others on its side, filed the opening brief in both cases Monday; the government’s merits brief is due Dec. 22, and all briefing is to be completed by Feb. 12.  The cases will be argued together, in late February or in March.  (Holder v. Humanitarian Law Project, et al., 08-1498, and Humanitarian Law Project, et al., v. Holder, 09-89).

The six groups and individuals involved in the cases “seek to speak to, for, and in coordination with” two organizations that are on the U.S. list of terrorist organizations.  They are the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam.   Those two groups, the brief said, “engage in a wide range of lawful, nonviolent activity,” and the groups and individuals in the case “seek to further only such activity.”

Thus, the brief urged the Justices to rule that the ban on “material support” be limited, at most, to “financial or other intangible support to terrorist organizations,” and to “advocating or teahing criminal or violent activity.”   What these six organizations and two individual do, and want to resume doing, they argued, is “pure political speech” that includes “teaching and advocating the use of international law and other nonviolent means to reduce conflict, advance human rights, and promote peace.”

Words or phrases written into the Patriot Act — “training,” “expert advice or assistance,” “service,” or “personnel” — are so vague in their reach, the  brief said, that the government treats them as making it a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.”  It added: “The government has made clear that it considers plaintiffs’ intended activities criminally proscribed by the challenged statutory terms.”

The brief noted that the Justice Department, in its petition challenging the parts of the Second Circuit Court ruling that went against the government, had argued that the Patriot Act clauses in dispute do not target speech.  In reality, the brief countered, the government’s own lawyers told lower court judges that it does reach speech activities if they are done to “benefit” a terrorist organization — a concept so broad that almost anything done in relation to a designated organization could be treated as a criminal “service.”

The Court, however, can avoid answering the constitutional questions about the “material support” provisions, the brief said, “by interpreting the statute to require proof of intent to further an organization’s illegal ends where, as here, pure speech and association are at stake.”

While the government has said that the law could be interpreted so as not to apply to “independent advocacy,” the brief said that formulation would not avoid the constitutional problems. “The First Amendment,” it asserted, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.”