The Supreme Court agreed on Wednesday to hear Holder v. Humanitarian Law Project and a countersuit, Humanitarian Law Project v. Holder. These cases will address whether, under the First and Fifth amendments, the “material support” for terrorism provision of 18 U.S.C. § 2339B is unconstitutionally vague. The petitioners, which include Attorney General Holder and the Department of Justice, as well as Secretary Clinton and the Department of State, argue that the law’s ban on the knowing provision of “any *** service, *** training, [or] expert advice or assistance” to a designated foreign terrorist organization is not unconstitutionally vague. According to the Department of Justice’s petition, “[s]ince 2001, the United States has charged approximately 120 defendants with violations of the material-support provision of [the statute], and approximately 60 defendants have been convicted.”
The respondents, including individuals convicted of supporting terrorist groups that advocate a Kurdish state in Turkey and a Tamil state in Sri Lanka, said the law fails to provide “constitutionally adequate notice to ordinary citizens where criminal liability for speech and association is on the line.” Georgetown University Law Center professor David Cole is counsel of record for the respondents.
The Ninth Circuit addressed the question in 2007, holding that the terms “training” and “service” were unconstitutionally vague, but that “expert advice or assistance” was only vague if not used in conjunction with the “derived from scientific [or] technical … knowledge” language in the latter part of the provision. It also held that “personnel” was not vague as used in the statute. For the American Civil Liberties Union’s reaction to this decision, please see its press release.
The petitioners argue that the Ninth Circuit’s holdings rest on a confused interpretation of the vagueness and overbreadth doctrines. In addition to countering those arguments, the Humanitarian Law Project (HLP) filed a conditional cross-petition asking the Court to revisit the provisions the Ninth Circuit had upheld in the government’s favor. The Court granted both petitions, which has effectively resulted in a decision to review the entire Ninth Circuit decision.
Find the petition, response, cross-petition, and Ninth Circuit opinion all here.