Supreme Court Upholds Controversial Patriot Act Section

[Pangloss]

The Supreme Court announced a 6-3 vote today upholding the provision in the Patriot Act that allows for the prosecution of individuals who provide material support, including knowledge and other communications, which had been objected-to by human rights and free speech organizations.

 

The dissent consisted of Breyer, Ginsburg and Sotomayor. Stephens, who retires in a few days. His planned replacement, Stevens, voted with the majority, and his planned replacement, Elena Kagan, actually argued the case for the government (representing the Obama administration, which brought the appeal) late last year.

 

The Obama administration said the "material support" law is one of its most important terror-fighting tools. It has been used about 150 times since Sept. 11, resulting in 75 convictions. Most of those cases involved money and other substantial support for terrorist groups.

 

Only a handful dealt with the kind of speech involved in the case decided Monday.

 

http://www.google.com/hostednews/ap/article/ALeqM5iyoQvMNadtonx9sFU0beOI7UMaUgD9GFTCAG0

 

I think it is quite possible to differentiate between free speech and direct support (through speech) for terrorism, and this law is an attempt to draw that distinction (and apparently a valid one, within the constitution). What do you all think?

[iNow]

From a conceptual standpoint, the ruling makes me nervous. It seems like a very fine line to walk, and I recognize all too well the fallibility of human nature... and all too well how frequently many our judges seem to be barely able to walk the widest and fattest lines successfully.

 

However, I do tend to agree with the majority decision, and appreciate the clarity with which they elucidated the point. Here is one summary which reassures me tremendously:

 

 

http://www.scotusblog.com/2010/06/analysis-partial-u-s-victory-on-terrorism/

Still, the Court went on to try to assure U.S. organizations and citizens who want to support only those two groups’ humanitarian efforts that they remain free, under the law, to “say anything they wish on any topic. They may speak and write freely about the [two groups], the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations.” But, in each of those scenarios, they must do so on their own, independent of the two groups on the government list. the Court said. (While the opinion also said that the U.S. organizations and individuals may not be punished for becoming members of the two listed groups, it did not indicate how they could do that and still remain “independent” of them.)

 

Most of what the law is designed to cover, the Chief Justice wrote, is not speech at all. But, when it does apply to speech, he added, “the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in corddination with foreign groups that the speaker knows to be terrorist organizations.”

 

However, the Court also laid out strict warnings to lower courts not to closely second-guess the government’s claims of what kinds of activity does advance the terrorist goals of foreign organizations on the official list. “Congress and the Executive,” the Chief Justice wrote, “are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not….When it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked,…and respect for the Government’s conclusions is appropriate.”

 

 

 

 

Where it gets really quite hairy is when you try to determine what it means for it to be coordinated with or controlled by a terrorist group.

 

 

The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

 

 

 

I can easily see the terrorism prevention side of this, and the need to protect national security, but again... from a conceptual standpoint, it makes me nervous, and seems somewhat arbitrary when it comes to deciding what is and what is not a terrorist group.

 

 

http://www.npr.org/templates/story/story.php?storyId=127983852

"The bottom line is that the court has now said that the First Amendment permits Congress to make human-rights advocacy and peacemaking into a terrorist crime," said Georgetown Law School professor David Cole, who argued the case in the Supreme Court on behalf of the Humanitarian Law Project.

 

Juan Zarate, a former deputy national security adviser under President George W. Bush, saw the decision differently. "The court," he said, "has conceded that the Congress and the executive [branch] have the ability to, in essence, wall off those terrorist organizations so designated, and have the ability to restrict the providing of support of any sort to those groups."

 

Despite the consternation expressed by human-rights groups about Monday's ruling, many experts said the decision would change little about the way the material support law operates. "The statute has its biggest bite in connection with giving money to organizations that do good activities and do bad activities," said UCLA law professor Norman Abrams, author of a leading anti-terrorism law textbook.

 

But many organizations, like the Carter Center, were gravely disappointed. Former President Jimmy Carter has said that the law hinders peaceful resolution of violent conflicts. And some human-rights organizations have criticized the government list of foreign terrorist organizations as lacking coherence — for example, while a group opposed to the Iranian government is on the list, the Palestine Liberation Organization is not.

 

<...>

 

Dissenting from Monday's ruling were Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor. In a passionate and rare spoken dissent from the bench, Breyer declared that general government assertions of a national security interest are not enough to justify suppressing otherwise lawful speech. "What is one to say," he asked, about the notion that the peaceful teaching of international human-rights law is "too dangerous" to tolerate? "A democracy like ours," he said, "is committed to such learning."

[DJBruce]

I really do not see much of a problem with this law. It seems to mean that this ruling is honestly not that extreme, or that much on an infringement on freedom of speech. If the court believes, and I agree with them, that this speech can cause on occasion the harm of people then I feel like this ruling is in agreement with the long held test set up that speech can be deemed unacceptable if "the words create a clear and present danger."

 

A question I have is that it is generally held that during a time of war speech can be restricted more than during a time of peace. As Justice Oliver Wendel homes stated: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." We are technically not at war with all of the organizations classified as terrorist organizations, but does this more stringent restriction of speech apply today?

[Pangloss]

Where it gets really quite hairy is when you try to determine what it means for it to be coordinated with or controlled by a terrorist group.

 

I can easily see the terrorism prevention side of this, and the need to protect national security, but again... from a conceptual standpoint, it makes me nervous, and seems somewhat arbitrary when it comes to deciding what is and what is not a terrorist group.

 

I agree. I also think that the gradual erosion of boundaries to executive power are becoming more clear with each passing administration. The reasons behind that have little to do with partisan politics, and everything to do with getting re-elected and establishing a legacy (or just plain getting something done).

 

It's the road to perdition, and it gets resurfaced with good intentions every 4-8 years.

 

 

 

(Say, wasn't that one of the stimulus projects? "The Edward Moore Kennedy Memorial Highway to Hell"?)