In Holder v. Humanitarian Law Project, the Court held that a 1996 law--enacted well BEFORE September 11, 2001--bars even innocent legal advocacy assistance to groups designated by the State Department as terror organizations. The groups suing were a Turkish Kurdish group & the Tamil Tigers from Sri Lanka--so the law applied law surely would cover al-Qaeda & other Islamist terrorist groups like Hamas & Hezbollah.
I regret that I did not have time to parse the legalese and publish a detailed assessment. Read "SCOTUS Backs Israel" from the Weekly Standard & "Roberts Rules" by NRO legal ace Andy McCarthy for legal analysis of the ruling. McCarthy hits the most important point--that even terror groups with social-welfare wings for political cover cannot escape the consequence of having terror wings, under the law Congress passed:
While terrorist organizations typically maintain social-welfare wings, providing them with humanitarian assistance “frees up other resources within the organization that may be put to violent ends,” in the words of the majority opinion. Money, after all, is fungible, and other forms of support may similarly be diverted to uses not contemplated by the donors. Because “terrorist organizations do not maintain organizational ‘firewalls’ that would prevent or deter . . . sharing and commingling of support and benefits,” their savagery can easily be facilitated by assistance that was intended for humanitarian purposes.
More obviously, the point of maintaining social welfare wings is that it enables terrorists systematically to “conceal their activities behind charitable, social, and political fronts.” This makes the FTO more attractive to outsiders, greatly strengthening its capacity to recruit new personnel. This, in turn, promotes terrorist operations. Alluding specifically to Hamas (the Muslim Brotherhood’s “Islamic resistance” organization in the Palestinian territories), Chief Justice Roberts quoted a U.S. intelligence assessment finding that by “muddying the waters between its political activism, good works, and terrorist attacks,” Hamas has been able to “use its overt political and charitable organizations as a financial and logistical support network for its terrorist operations.” Dreamy peace activists may draw what the Court called a “line between humanitarian and violent activities,” but terrorists do not.
In this case, the dreamy activists include dissenting justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. As the chief justice put it, they seem “unwilling to entertain the prospect that training and advising a designated [FTO] might benefit that organization in a way that facilitates its terrorist activities. In the dissent’s world, such training is all to the good.” To the contrary, the majority refreshingly concludes that in this vital matter of national defense, an issue that deeply implicates international relations and alliances, the judiciary must defer to the political branches’ conclusion that “we live in a different world: one in which the designated [FTOs] ‘are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.’”
This is a crucial recognition. In recent years, the Supreme Court has turned its back on precedents like the post–World War II Eisentrager case, which recognized the damages legal processes could inflict on war-fighting and national defense. This time, the justices recognized that the possibility that lawfare could harm the nation “is real, not remote.” By learning to petition international organizations for aid, terrorists could collect funds that could be diverted to bombing operations. By purporting to pursue the peace negotiations on which activists wanted to instruct them, terrorist organizations could “buy time to recover from short-term setbacks, lulling opponents into complacency, and ultimately preparing for renewed attacks.” And once “introduced to the structures of the international legal system,” an FTO “might use the information to threaten, manipulate, and disrupt.”
What I noticed in the ruling were these factors: (1) the decision was 6-3, was Justice John Paul Stevens, in his Supreme swan song, voted with the four conservatives + swinger Anthony Kennedy; (2) Justice Sotomayor, America's not-so-wise Latiina, voted with the dissenters, despite having voted in her first case (last fall) against the free speech rights of corporations--in other words, Soto would give free speech advocacy rights to lawyers representing terrorists trying to blow up America, but NOT give same to corporations!!
A WSJ editorial notes that Sotomayor thrice sided with the legendarily leftist Ninth Circuit federal appeals court (covers WA, OR, CA & NV) in cases where the Supreme Court majority overturned the Ninth Circuit ruling. Of this latest case & Elena Kagan, the WSJ editors ask:
By the way, arguing the government's position in the material support for terrorism case as Solicitor General, Ms. Kagan called the law a critical weapon in the war on terror. "Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs," she said. At her hearings next week, Senators should ask whether she was merely a pen for hire.
Justice Breyer, writing for the dissenters, stressed what he thought was the absence of a sufficient factual record to support the government's case. Even Breyer did NOT consider the law flatly unconstitutional, but merely questions whether the facts sufficed here to apply the rules against the advocacy groups.
Bottom Line. When Kagan replaces Stevens, the balance in this kind of case becomes 5-4--if Breyer stays on the same side. If Obama gets a third Supreme nomination, and it is to replace one of the other 5 in the majority, the world changes, and terrorists worldwide rejoice.
Letter from the Capitol, LFTC, 9/11, National Security, Terrorism, Homeland Security, Supreme Court, Conservative Politics
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