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Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of ten of America's presidencies and who has edited alternative journals since 1964. The Review, which has been on the web since 1995, is now published from Freeport, Maine. We get over 5 million article visits a year. See for full contents of our site

February 21, 2010


Inter Press Service - The U.S. Supreme Court will consider one of the most consequential cases to arise from the "global war on terror."

The nine justices will hear lawyers’ arguments in a case known as Holder v. Humanitarian Law Project, which challenges a portion of the USA Patriot Act. That act was hastily passed by Congress soon after the terrorist attacks of 9/11, with only one dissenting vote.

The Supreme Court case, originally brought in 1998, challenges the constitutionality of the law that makes it a crime to provide "material support" to groups the administration has designated as "terrorist."

It will test whether a person in the U.S. may be held criminally liable for speech advocating lawful, nonviolent activity that supports an organization on the government’s terrorist list.

The plaintiffs, represented by the Center for Constitutional Rights, charge that the law goes too far in criminalizing speech, including prohibitions on providing "training", "personnel", "expert advice or assistance" and "service." The law currently deems it a crime to speak within these issues, even if the speech is totally peaceful and nonviolent.

Lower courts have ruled several provisions of the statute "unconstitutionally vague" because they involve free speech and leave citizens to speculate about their meaning.

David Cole, a professor at the Georgetown University Law Center, who is a CCR cooperating attorney on this case, says, "This statute is so sweeping that it treats human rights advocates as criminal terrorists, and threatens them with 15 years in prison for advocating nonviolent means to resolve disputes." . . .

Before the high court, Cole will be representing the Humanitarian Law Project and other groups. HLP has been helping the Kurdistan Workers Party by training it in how to bring human rights complaints to the United Nations and advocating on behalf of Turkish Kurds. But it had to end its work in 1997 when the secretary of state designated the party a terrorist organization

"The core of what our clients wanted to do was pure speech promoting lawful, nonviolent activities," Cole said. "Our First Amendment complaint is that the material support provisions penalize speech and association."

The U.S. government’s solicitor general, Elena Kagan, will oppose Cole in oral arguments. The government’s position is that the statute’s requirement that someone "knowingly" provide material support to a designated terrorist organization "diminishes any vagueness concerns."

The challenged terms, such as "training", her brief says, "rest on simple distinctions that are readily understood by persons of ordinary intelligence."

The 9th U.S. Circuit Court of Appeals held in 2007 that the prohibitions were unconstitutionally vague as applied to Cole’s clients. It rejected their claims that the law imposed guilt by association in violation of the First and Fifth amendments. Both Cole and the government filed petitions for review with the Supreme Court.

Cole, a widely respected constitutional scholar, sees a correlation between the McCarthy witch-hunts of the 1950s and the government’s current policies.

He told IPS, "With our return to a ‘preventive paradigm’ of preemptively weeding out threats to national security, guilt by association has been resurrected from the McCarthy era. While it was illegal in the 1950s to be a member of the Communist Party, it is now a crime to support an individual or organization on a terror watch list, although the government can designate and freeze assets without a showing of actual ties to terrorism or illegal acts."

"While the House Un-American Activities Committee once relied on the private sector to mete out punishment through the destruction of reputations and careers, today measures such as the Anti-Terrorist Financing Guidelines have turned funders into the new enforcers. In this light, he said the nonprofit sector has an obligation to resist such a partnership with government," he said.

The lead plaintiff in the case is Ralph Fertig, a 79-year-old pacifist and civil rights lawyer from Los Angeles. He says he wants only the freedom to advocate for the rights of the Kurdish minority in Turkey.

He is troubled that Kurds can be punished for speaking their own language or displaying their national colors. And he believes the First Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations.


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