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Obama Administration Seeks Supreme Court Review of Decision Declaring Patriot Act Provision Unconstitutional

Lower Courts Unanimously Declared Law Unconstitutionally Vague

Washington, DC, June 4, 2009 — The Obama administration today sought Supreme Court review of a decision declaring a USA Patriot Act provision unconstitutional.  The case, Holder v. Humanitarian Law Project, originally brought by the Center for Constitutional Rights (CCR) 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.”  The lower courts have unanimously declared several provisions of the law — including one added by the USA Patriot Act — unconstitutionally vague.

The “material support” statute makes it a crime to provide money or goods, “training,” “personnel,” “expert advice or assistance,” and “services” to any organization placed on the list of “foreign terrorist organizations” maintained by the State Department.  Convictions can result in sentences of 15 years to life.  The statute requires no showing that the donor intended to further any act of terrorism or violence.

The lower courts held unconstitutionally vague the law’s prohibition on the provision of “services,” “expert advice or assistance,” and “training,” reasoning that these terms could easily encompass a wide range of lawful speech, such as providing training in international law, and left citizens to guess at their meaning.

Plaintiffs in the case include the Humanitarian Law Project, a human rights organization in Los Angeles and a former federal administrative law judge, Ralph Fertig, who is the President of the HLP.  They seek to provide human rights advocacy training to the Kurdistan Workers’ Party (PKK), the main Kurdish political party in Turkey.  Once the State Department designated the PKK a terrorist organization, it became a crime for HLP and Judge Fertig to continue to train the group in human rights advocacy, even though that assistance is designed to reduce violence by encouraging peaceful ways of resolving conflict.

The Patriot Act added a prohibition on the provision of “expert advice or assistance” to the statute.  After earlier court decisions declared this and other parts of the statute unconstitutional, Congress amended it again in 2004 to try to correct the infirmities.  However, the district court and court of appeals concluded that the prohibitions on “services,” “expert advice and assistance,” and “training” remained unconstitutionally vague.  The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.

“The material support law resurrects guilt by association, and makes it a crime for a human rights group in the United States to provide human rights training,” said David Cole, a CCR volunteer attorney and Georgetown Law professor who is lead counsel in the case.  “We don’t make the country safer by criminalizing those who advocate nonviolent means for resolving disputes.  Congress can and should draw a clear line between assistance that furthers terrorism, and that which does not. “

Co-counsel in the case include Shane Kadidal of CCR, and Carol Sobel and Paul Hoffman, civil rights attorneys in Los Angeles.

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