In a case to be heard next week by the US Supreme Court, freedom of speech will be pitted against US anti-terrorism laws. What is unusual about this particular case is that it involves a 79-year-old US human rights activist who is advocating on behalf of the Kurds in Turkey and the Kurdistan Workers’ Party, or PKK (Partiya Karkerên Kurdistan). The PKK has been branded a terrorist organisation by Turkey, the EU, and the US.
This will be the court’s first encounter with the free speech and association rights of US citizens in the context of terrorism since the September 11 attacks — and its first chance to test the constitutionality of a provision of the USA Patriot Act. Specifically, it will test whether speaking out on behalf of an oppressed foreign minority (the Kurds)—argued to be represented by a group that’s been deemed a terrorist organisation (the PKK)—can result in a long prison term.
Ralph Fertig, soon to turn 80, is the plaintiff in the case called Holder vs. Humanitarian Law Project, which will be heard by the high court on 23 February 2010.
Fertig is retired judge and professor of social work at the University of Southern California who believes the 1st Amendment protects his right to counsel Kurdish leaders to steer away from violence and to take their cause to the United Nations. He is troubled that Kurds can be punished for speaking their own language or displaying their national colours.
Says US Solicitor General, Elena Kagan, ‘Congress has banned a broad range of material support [to terrorists], regardless of whether the support is ostensibly given to assist supposedly lawful activities.’ However, she said that Fertig may ‘act independently to advocate’ for the Kurds, so long as he does not work with Kurdish leaders. It is unclear to which leaders she was referring—political leaders or leaders of the PKK. It is quite possible that Washington views them as one.
What Fertig is challenging in particular is a 1996 ‘material support’ provision in the USA Patriot Act that allows long prison terms for anyone for helps or advocates for terrorist groups in any way. According to US government lawyers, the law not only prevents ‘training’ or ‘assistance’ to terrorists, but also the filing of a legal brief or writing an op-ed essay on behalf of a designated terrorist group.
Since the addition of that provision, Fertig and the Humanitarian Law Project have won a series of rulings that have shielded its members from prosecution. Last year, the US 9th Circuit Court of Appeals declared that the bans on training, service and some kinds of expert advice were unconstitutionally vague. But it upheld the bans on personnel and expert advice derived from scientific or technical knowledge.
Fertig said he could understand an argument against donating money, given the difficulty of controlling its use. But the sweep of the material-support law goes too far, he said.
Georgetown University law professor David Cole, who represents Fertig, says that ‘the court has never upheld a law that criminalises pure speech advocating only lawful, peaceable activity.’ He told the court that the case concerned speech protected by the First Amendment ‘promoting lawful, nonviolent activities,’ including ‘human rights advocacy and peacemaking.’
A friend-of-the-court brief — prepared by Edwin Meese III, the former United States attorney general; John C. Yoo, a former Bush administration lawyer; and others — called the civil liberties critique of the material-support law naïve.
Allowing any sort of contributions to terrorist organisations ‘simply because the donor intends that they be used for ‘peaceful’ purposes directly conflicts with Congress’s determination that no quarantine can effectively isolate ‘good’ activities from the evil of terrorism.’
Given the recent events at Ft. Hood and in the skies over Detroit, and with the current configuration of the Supreme Court, free speech will most likely take a back seat to ‘combating terrorism.’
Asked by The Los Angeles Times what he would do if he lost the Supreme Court case Tuesday, Fertig said this: ‘I would continue to speak for the rights of the Kurds. And if I’m arrested, it would not be the first time.’
Fertig says all he wants to do is teach Kurds the philosophies of non-violent protest he practised as a civil rights activist in the ’60s.
UPDATE: 21 June 2010: Supreme Court votes 6-3 to uphold ban on material support.
Savage, David G. Activist’s case will test U.S. anti-terrorism law. Los Angeles Times, 18 February 2010.
Civil rights activist seeks to prove anti-terrorism law a violation of free speech. Raw Story, 17 February 2010.
Liptak, Adam. Right to Free Speech Collides With Fight Against Terror. New York Times, 10 February 2010.
Holder vs. Humanitarian Law Project. Center for Constitutional Rights.