Humanitarian Law Project and the Supreme Court's Construction of Terrorism
54 Pages Posted: 26 Feb 2012
Date Written: November 10, 2011
This Article places the Supreme Court’s encounters with the concept of “terrorism” in historical context, and then discusses the Court's 2010 decision in Humanitarian Law Project v. Holder ("HLP") in light of that history. In so doing, the Article demonstrates how the Supreme Court’s construction of terrorism has evolved from that of a mere tactic used by subnational groups to an existential threat that must be combated, regardless of group or cause, at least rhetorically. HLP marks the first time the Supreme Court has given judicial imprimatur to the idea that “money is fungible,” i.e., that any and all funds that go to a foreign terrorist organization ("FTO"), regardless of its purpose — violent, political, or charitable — constitute material support to a banned FTO. However, the Court did not stop there, ruling that material support that takes the form of speech could be banned because it provides legitimacy to an FTO, which can only serve to strengthen its resolve to fight. This Article explains that while the government has an interest in stopping American citizens and residents from providing support that leads to violence, a criminal ban on support that bestows only legitimacy, with no link to violent activity, cannot stand when an FTO’s quarrel is not with the United States. Such a stance constitutes an impermissible prior restraint on speech in violation of the First Amendment.
Keywords: Material Support, Foreign Terrorist Organizations, First Amendm/ent, National Security, Criminal Law
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