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The U.S. Supreme Court now gives lawyers a head start on the preparation of briefs and fills up the court’s schedule of oral arguments as early as possible. Even before it formally convened the first Monday in October, the court announced which cases it would hear of those on which petitions for review gathered over the summer while the court was in recess.
Two cases the court placed on its docket on September 30 should be of concern to friends of Israel and to the Israeli public.
The first case affects prosecution in American courts of terrorist groups. In a 1996 anti-terrorism law, Congress made it a federal crime to provide “material support or resources” to a foreign terrorist organization, and in a 2004 law the words “material support or resources” were further defined to include any “service,” “training, expert advice or assistance.”
Three federal appellate judges in California ruled that the words “service,” “training,” and “expert advice or assistance” are unconstitutionally vague because they might authorize prosecutors to file criminal charges against individuals who advise terrorist groups “on how to lobby or petition representative bodies such as the United Nations” or who train members of such groups on “how to use humanitarian and international law to peacefully resolve ongoing disputes.”
The Supreme Court has now accepted the Department of Justice’s request – made through the Obama administration’s new solicitor general, former Harvard Law School dean Elena Kagan – to review that ruling.
The case the Supreme Court will hear does not involve terrorist groups that threaten Israel. The case was initiated by organizations and individuals that wished to support a group battling for Kurds in Turkey and another group helping the Tamils in the northern and eastern provinces of Sri Lanka. But whatever the court decides will affect U.S. enforcement policy regarding supporters of Hamas and Hizbullah.
American courts and American statutes have made it clear that U.S. anti-terrorism law cannot be invoked against anyone who supports a terrorist group without knowing that it engages in terrorism. Terrorism is defined as including “violent acts dangerous to human life” designed “to coerce a civilian population.” If there exist contributors to Hamas who intend only to help its purported charitable activities and who are ignorant of its program to murder and maim, they would be, on this account, beyond the reach of the law.
The legal issue now before the Supreme Court is whether someone who knows that an organization commits terrorism and nonetheless provides service, training, or expert advice to such a group acts lawfully.
Because of the wholly unreal possibility that a supporter of the terrorist group who knows that it murders civilians might only advise it on how to file a petition with the United Nations or how to peacefully resolve ongoing disputes in a humanitarian way – fanciful imaginings that only naïve judges could conceive – the very liberal U.S. Court of Appeals for the Ninth Circuit (the one most frequently reversed by the Supreme Court) has invalidated significant provisions of American anti-terrorism law.
This is too much for even the Obama administration’s Department of Justice. It sought and obtained Supreme Court review of the Court of Appeals decision on the ground that the language declared unconstitutional for vagueness is “a vital part of the Nation’s effort to fight international terrorism.” The government’s initial petition to the Supreme Court did not specify the kinds of service, training, or expert advice for terrorist organizations that Department of Justice investigations have uncovered, but it did report that 120 defendants have been charged under these terms and 60 have already been convicted.
The criminal prohibitions in American law against all forms of support for Hamas and Hizbullah are crucially important in both Israel and the U.S. Few, if any, Hamas or Hizbullah supporters in the U.S. are giving advice on how to petition to the United Nations or on how to resolve disputes in a humanitarian way.
The service, training, and expert advice usually given in the U.S. to supporters of Hamas and Hizbullah who know of their programs of terrorism are geared to more violent means of achieving the ends of these terrorist groups. If American law is to have any deterrent effect, the language of the federal law should be given its natural and ordinary meaning and not declared unconstitutionally vague.
About the Author: Nathan Lewin is a Washington lawyer born in pre-war Poland who has argued 28 cases before the United States Supreme Court and is on the adjunct faculty of Columbia Law School.
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