Federal Judiciary

Dueling appeals on terrorism policy

By Akin Gump Supreme Court Practice Group

With a Justice Department case already at the Supreme Court on the government’s power to make it a crime to support a terrorist organization, lawyers for organizations and individuals on the other side of the controversy filed their own plea Tuesday, asking the Court to take a broader look at a key federal law if it opts to rule at all.

Since 1996, five years before the 9/11 terrorist attacks, it has been a crime to provide “material support or resources” to any group designated by U.S. officials as a “foreign terrorist organization.”  Congress revised the law somewhat in 2004, three years after the attacks.

That law, the Justice Department told the Court in its petition filed on June 4, “is an important tool in the Nation’s fight against international terrorism.”

Federal prosecutions since 2001 have pursued “material support” cases against 120 individuals or organizaions (with convictions in about half of the cases).  But the Ninth Circuit Court has struck down several parts of the law, finding them too vague to satisfy the Constitution, and finding that they threaten free speech rights of those who would support non-violent activities of the designated organizations.

The Department’s petition (found here) challenges those parts of the Circuit Court decision. In an opposition brief filed Tuesday, lawyers for American affiliates of designated organizations urged the Supreme Court not to hear the government appeal.

The Ninth Circuit upheld some other provisions in the law.  If the Supreme Court hears the government case, the American affiliates’ lawyers argued in a separate filing, it should also review these other aspects of the appeals court decision.  The conditional cross-petition can be found here. (A docket number has not yet been assigned.)

The two foreign organizations at the center of this controversy are the Kurdistan Workers’ Party and the Liberation Tigers of Tamil Eelam.  They were both designated foreign terrorist groups by U.S. officials for what the government contends were a series of terrorist attacks in Turkey or in Sri Lanka, respectively. 

Two U.S. citizens and five domestic organizations have contended in their challenge to the material support law that both of those organizations carry on legal, non-violent, humanitarian projects, and they want to provide financial support for those efforts.

Their lawsuit has meandered slowly over more than 11 years through federal courts, including one unsuccessful attempt to appeal to the Supreme Court in 2001.

In the most recent decision in a federal appeals court, the Ninth Circuit struck down as too vague the parts of the law that criminalize support for terrorist groups through “training,” “expert advice or assistance,” or “service.”  That Court, however, upheld provisions that make it a crime to provide assistance to a designated organization through “personnel” or “scientific or technical knowledge.”

The Court is not expected to act on either petition until it returns from summer recess in late September. 

Full post as published by SCOTUSBLOG on July 07, 2009 (boomark / email).