Supreme Court Upholds Criminal Ban on Teaching International Law

by Roger Alford

That’s a remarkable statement, but it actually is true. Yesterday the Supreme Court in Holder v. Humanitarian Law Project addressed the question of whether a federal statute criminalizing the provision of “material support” to terrorist organizations was constitutional. A humanitarian NGO group wanted to train members of two terrorist organizations, the PKK and the LTTE, to become more non-violent and use peaceful means to resolve their disputes. That included training them about international law.

But the Court—by a vote of 6 to 3—upheld the restriction, concluding that providing services of this nature contravened the statute and that that statute was constitutional.

Plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities…. [T]hose activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”; (2) “engag[ing] in political advocacy on behalf of Kurds who live in Turkey”; and (3) “teach[ing] PKK members how to petition various representative bodies such as the United Nations for relief.”…

The Court concluded that the statute was not unconstitutionally vague, because teaching international law clearly fell within the meaning of the words “training” and “expert advice or assistance.”

Most of the activities in which plaintiffs seek to engage readily fall within the scope of the terms “training” and “expert advice or assistance.” Plaintiffs want to “train members of [the] PKK on how to use humanitarian and international law to peacefully resolve dispute.”… A person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute’s definition of “training” because it imparts a “specific skill,” not “general knowledge.”

The Court also concluded that teaching international law to members of the PKK and the LTTE did not violate First Amendment free speech:

Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B depends on what they say. If plaintiffs’ speech to those groups imparts a “specific skill” or communicates advice derived from “specialized knowledge”—for example, training on the use of international law or advice on petitioning the United Nations—then it is barred. On the other hand, plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge.

It seems odd, but any effort to train members of terrorist organizations to renounce their ways and pursue the path of peace is prohibited by federal statute.

Not surprisingly, Justice Breyer—joined by Justices Ginsburg and Sotomayor—wrote a scathing dissent, and singled out the criminalization of teaching international human rights law in particular:

[T]he majority discusses the plaintiffs’ proposal to “‘train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes.’” The majority justifies the criminalization of this activity insignificant part on the ground that “peaceful negotiation[s]” might just “bu[y] time . . . , lulling opponents into complacency.” And the PKK might use its new information about “the structures of the international legal system . . . to threaten, manipulate, and disrupt.” What is one to say about these arguments—arguments that would deny First Amendment protection to the peaceful teaching of international human rights law on the ground that a little knowledge about “the international legal system” is too dangerous a thing; that an opponent’s subsequent willingness to negotiate might be faked, so let’s not teach him how to try?…

The risk that those who are taught will put otherwise innocent speech or knowledge to bad use is omnipresent, at least where that risk rests on little more than (even informed) speculation. Hence to accept this kind of argument without more and to apply it to the teaching of a subject such as international human rights law is to adopt a rule of law that, contrary to the Constitution’s text and First Amendment precedent, would automatically forbid the teaching of any subject in a case where national security interests conflict with the First Amendment.

I am not a First Amendment scholar, but I think the dissent has the better argument. Applying this statute to impose a criminal ban on teaching members of terrorist organizations about the rule of law, or international human rights, or the non-violent writings of the Sermon on the Mount, Mahatma Gandhi, or Martin Luther King, is just a remarkably inappropriate content-based restriction on speech.

http://opiniojuris.org/2010/06/22/supreme-court-upholds-criminal-ban-on-teaching-international-law/

11 Responses

  1. Police state.  There is something happening here. 

    Paranoi strikes deep.
    Into your heart it will creep.
    It starts when your always afraid.
    Step out of line and they come to take you away.

    It time we stop children what’s that sound,
    Everyone look what’s going down.

    – Buffalo Springfield, For What It’s Worth

    Best,
    Ben

  2. Terrorist organizations also have to raise funds, keep books, plan travel, communicate with members, pay bills, and do everything else that every other organization does. Therefore, while training in bookkeeping, database, business, communication, human resources, and other routine topics does not appear to have anything to do with terrorism, providing such training to a terrorist organization advances the goals of the organization and, therefore, advances terrorism.

    At one time, nobody would have imagined that there was any lethal consequence to providing flight school training to a group of would be pilots.

    The Supreme Court ruled that it was legal to ban training along with all other forms of material support to a terrorist organization. The question is whether one particular group can identify one particular subject of training and claim that, beyond any possible doubt, that this particular type of training cannot have any terrorist consequences and that therefore they have a constitutional right to provide that particular type of training in the face of the general material support ban.

    Only in that claim do we get into any actual “Content Based” question. While the broad ban on any form of training on any subject as material support has a tiny bit of content (training as opposed to singing opera while waiting on tables), a broad based ban on all training on all topics makes the ban largely content neutral. It is only by trying to carve out particular exceptions (training on international law, training on decorating wedding cakes, training on flossing your teeth properly) that any meaningful content based distinction is introduced.

    I am sure we can list a thousand presumably innocuous subjects that we might allow well meaning organizations to train their favorite terrorist organizations to do something more useful. The law, however, cannot be written to make such training legal without also legalizing some group who decides that the terrorists would be better off by getting a real job, say as airline pilots. So a content neutral ban on all training as material support seems to be the only way the legal system can effectively do its job.

  3. If it is true that overpopulation (population pressures, particularly as a result of youth bulges — violence from idle young men) colliding with scarce and/or depleting resources, etc are a significant root cause factor for providing cannon fodder applicants for terrorist organisations; I wonder what the Supreme Court’s views would be, if any NGO actually provided aid which would reduce the number of cannon fodder prospects.

    Personally I am of the same view as Dr. Bartlett, that in the absence of seriously confronting overpopulation; all other causes are but farting against thunder; just self-righteous verbal diarheau.

    Wonder what Buck v. Bell Holmes would have thought?

  4. Well, then I guess they’ll go on trying to plant bombs in crowded places or taking them on airplanes.  It would be awfully difficult, though, to retrain someone willing to cause such loss of life to use more peaceful methods.  I don’t really think a person willing to kill others is going to be patient enough to wait for international law to help their cause.

  5. Other troubling aspects of the decision are discussed by Rick Hills at Prawfs: http://prawfsblawg.blogs.com/prawfsblawg/2010/06/is-it-a-federal-crime-to-break-israels-gaza-blockade-.html#comments 

  6. I am not a First Amendment scholar either, but I know enough law to know that the First Amendment doesn’t permit Congress to pass a law that you can teach terrorists “good” things, but not “bad” ones.  If you want to teach, say, that Jews and Americans are pigs and dogs who should be exterminated, that is just as much entitled to First Amendment protection as teaching people to resolve their differences peacefully.

    I think we all know the basic disingenuousness of advocates like Prof. Alford.  Step one, on display here, is to urge the legality of teaching Hamas to love everybody.  What kind of monster would quarrel with teaching love?  If that argument were accepted–luckily, the Supreme Court isn’t quite that stupid–the next step is to argue that, regrettably, the Constitution doesn’t permit content-based discrimination, so teaching Hamas to kill people is also Constitutionally protected.

  7. wm13:

    Yes I think we can agree that you are not a First Amendment scholar.  Free speech is not unlimited and it restricts certain types of speech that causes harm to others, such as libel, slander, copyright infringement, incitement, etc.   Yes it protects someone who wishes to call an American a dog.  No it probably does not protect teaching someone to kill under the Brandenburg v. Ohio test.

    Also not sure what international law has to do with love, but never mind. 

    Roger Alford

  8. im not sure how this decision “holds up” with the Brandenburg v. Ohio test. first off, there is the question of intent. it seems that Brandenburg and noto vs. the united states, require that the intention of the speaker is to incite or produce immanent lawless action.
    i dont see how the intention of the Humanitarian Law Project could possibly be interpreted as causing harm.

    furthermore,  the said speech must be likely to incite or produce such action.  this was supposed to be another major obstacle to the ruling, while it should be noted, that “likely” seems to indicate a lower degree of expectancy than the clear and present danger test.

    last but not least, is the requirement of “immanent” action. this term does not imply applying an objective test of assessing when will the danger occur, rather the test is linked to the intent of the speaker. in other words, when does he intend for this to happen.

    . id also like to comment on the following argument:

    ” “peaceful negotiation[s]” might just “bu[y] time . . . , lulling opponents into complacency.” And the PKK might use its new information about “the structures of the international legal system . . . to threaten, manipulate, and disrupt.”

    are you telling me that these terrorists, who know how to kill and use violence to manipulate and threaten others, dont know how to tell a lie or commit perfidy?. i guess they’re kinda like superman in that way.

    it seems that teaching the laws of war, might be of value. they can see that many countries work under the assumption that everyone, even enemy civilians have value. they might understand that collateral damage is a necessary evil, and its very frequent. hence, the deaths of some innocent civilians  is not always an indication that the people who did it are monsters. 

  9. I am also not a First Amendment scholar but it doesn’t take a lifetime of study to recognize this as a massive blunder. I can’t understand why the court refused to nail the law on enforcement discretion when it imperils so many high profile humanitarians and NGOs.

    Red Cross? They train Hamas and the Taliban in first aid. Jimmy Carter? Time to stop advising Hamas leadership.

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