For a dozen years, leftist organizations styling themselves as proponents of international humanitarian law have campaigned to undermine the laws prohibiting material support to terrorism. On Monday, the U.S. Supreme Court finally swept aside this challenge, forcefully upholding one of our nation’s most crucial counterterrorism tools.
Chief Justice John Roberts’s opinion for the 6–3 majority in Holder v. Humanitarian Law Project is a smashing victory for the rationale of material-support laws, which bar various forms of aid to formally designated “foreign terrorist organizations” (FTOs) on the ground that any meaningful assistance — however ostensibly innocent or virtuous — strengthens these groups. (I have been writing about the Humanitarian Law litigation here at NRO for a number of years — see here, here, and here — and joined an amicus brief supporting the constitutionality of the material-support laws, both in my individual capacity and as co-chairman of the Center for Law & Counterterrorism, a joint project of the Foundation for Defense of Democracies and the National Review Institute.)
The principle operating here is that terrorism is barbaric, contravening both international law’s imperative to protect civilians and the civilized international norms that promote resolution of political disputes by negotiation, not assassination. Therefore, al-Qaeda, Hezbollah, Hamas, and the two terrorist organizations at issue in the epic Humanitarian Law litigation, the Liberation Tigers of Tamil Eelam (LTTE) and the Kurdistan Workers Party (Partiya Karkeran Kurdistan, or PKK), must be treated as pariahs, ostracized and suffocated until they either are annihilated or convincingly abandon terrorism as a method.
This would seem to be common sense. Yet transnational progressives, under the auspices of “humanitarian law,” have hitched their wagons to the terrorists’ stars. Their aim is to promote their post-sovereign agenda, the subordination of national-security concerns to the “engagement” of terrorists in multilateral processes. The Humanitarian Law Project contended that the material-support laws’ ban on providing training, expert advice, services, or personnel to FTOs stymied their desire to, example, train terrorists “to use humanitarian and international law to peacefully resolve disputes,” to teach them “how to petition various representative bodies such as the United Nations for relief,” to conduct political advocacy on the terrorists’ behalf, to offer their legal expertise to help the terrorists negotiate peace agreements, to show the Tamil Tigers how to “present claims for tsunami relief to mediators and international bodies,” and so on.
It this alternative universe, leftists would have us look no further than their good intentions and ignore the unintended consequences of fortifying mass murderers. The plaintiffs thus complained that material-support strictures transgressed their First Amendment rights to speak and freely associate with terrorist organizations. They also argued that the law was unconstitutionally vague.
Chief Justice Roberts was having none of it. The “government’s interest in combating terrorism is an urgent objective of the highest order,” he asserted. Congress, therefore, was well within its discretion to conclude that working in coordination with FTOs, regardless of pure motives, “served to legitimize and further their terrorist means.”
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.”
To be sure, the Court was not abdicating its responsibility to interpret the Constitution. A law that barred independent advocacy for a terrorist organization, absent any coordination between the advocate and the terrorists, might well present a significant First Amendment issue. A law that banned all association with terrorists, rather than the narrow, purposeful forms of assistance at issue, could also be problematic. And subjecting domestic organizations to the same strictures imposed on FTOs would similarly call for greater judicial scrutiny. Congress, however, had not attempted to do any of these things. Given the stakes involved and the Court’s lack of comparable institutional competence in foreign affairs, the majority concluded it would be wrong to second-guess the judgments of executive and legislative branches about how to protect Americans from international terrorism.
One cannot say with certainty that this decisive ruling will bring an end to the seemingly endless Humanitarian Law litigation. The progressive activists are infused with an indignant zeal, and they’ve found a highly sympathetic ear in the Ninth Circuit and California’s lower federal courts. But for now, at least, foreign terrorist organizations are what they ought to be: radioactive. It is for them to change their savage ways — and, if they do, our law generously grants them the ability to challenge their designation as FTOs. If they don’t, our mission is to defeat them, not to help them under the delusion that maybe they’ll see the light.
— Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.