Terrorism Law, the New McCarthyism

Tomorrow, the U.S. Supreme Court will hear oral argument in the first encounter with the free speech and association rights of American citizens in the context of terrorism since the Sept. 11 attacks, and in the first test of the constitutionality of a provision of the USA Patriot Act.

The "Material Support" law takes a sweeping approach to its ban on aid to terrorist groups, prohibiting the provision of cash, weapons and the like, as well as four more ambiguous categories - "training," "personnel," "expert advice or assistance" and "service." Opponents of the law say that when it comes to providing lawful legal advice or training in non-violence, the law is nothing more than "guilt by association' reminiscent of the witch hunts of McCarthyism.

These are no paranoid fears. "Congress wants these organizations to be radioactive," Douglas N. Letter, a Justice Department lawyer, said in a 2007 appeals court argument in the case, referring to the dozens of groups that have been designated as foreign terrorist organizations by the State Department. Letter admitted that it would be a crime for a lawyer to file a friend-of-the-court brief on behalf of a designated organization or "to be assisting terrorist organizations in making presentations to the U.N., to television, [or] to a newspaper."

The Humanitarian Law Project, a nonprofit group that has a long history of mediating international conflicts and promoting human rights, brought the case in 1998. Two years earlier, passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) had made it a crime to provide "material support" to groups the State Department had designated as "foreign terrorist organizations." The definition of material support included "training" and "personnel." Later versions of the law, including amendments in the USA Patriot Act, added "expert advice or assistance" and "service."

In 2007, the 9th U.S. Circuit Court of Appeals ruled that the bans on training, service and certain types of expert advice were unconstitutionally vague, but upheld the bans on personnel and expert advice derived from scientific or technical knowledge. Both sides appealed to the Supreme Court, which agreed to hear the consolidated cases in October. The cases are Holder v. Humanitarian Law Project, No. 08-1498, and Humanitarian Law Project v. Holder, No. 09-89.

David D. Cole, a lawyer with the Center for Constitutional Rights, which represents the challengers is arguing that the case concerns speech protected by the First Amendment "promoting lawful, nonviolent activities," including "human rights advocacy and peacemaking."

A number of victims of McCarthy-era persecution filed a friend-of-the-court brief urging the Supreme Court to remember the lessons of history.

"I signed the brief," said Chandler Davis, an emeritus professor of mathematics at the University of Toronto, "because I can testify to the way in which the dubious repression of dissent disrupted lives and disrupted political discourse." Professor Davis refused to cooperate with the House Un-American Activities Committee in 1954 and was dismissed from his position at the University of Michigan. Unable to find work in the United States, he moved to Canada. In 1991, the University of Michigan established an annual lecture series on academic freedom in honor of Professor Davis and others it had mistreated in the McCarthy era

The Material Support law authorizes the Secretary of State to designate "foreign terrorist organizations," and makes it a crime to provide certain statutorily defined "material support" for even the nonviolent and humanitarian activities of such groups. Similar to the Smith Act and federal executive orders in the 1940s and 50s, the law grants the Executive Branch unreviewable discretion to designate groups as "terrorist" and creates vague bans on providing "expert advice or assistance," "training," "service," or "personnel" to designated groups. It threatens once again unconstitutionally to interfere with the rights of free speech and association.

The AEDPA's vague ban on "assistance" and "advice" is essentially no different from the McCarthy Era attempt to root out association with and advocacy for groups unpopular with the government. Starting in the 1930s, and through the 1960s, Congress and the Executive Branch identified organizations - the Communist Party and groups with ties to the Communist Party - as using illegal means, including terrorism, with the aim of overthrowing the U.S. Government by force and violence. The Smith Act and the Subversive Activities Control Act made it a crime to associate with these designated groups or to speak in support of these groups. These were crimes regardless of whether or not that speech or association supported or furthered the group's unlawful activities.

Our society now recognizes that the McCarthy Era was a shameful episode in American history, characterized by widespread abuses of executive and legislative power; fueled by demagoguery and overzealous government action, ultimately encompassing "loyalty" investigations of over four million American citizens. See, e.g., Ellen Schrecker, "Many Are the Crimes: McCarthyism in America" (1998), at x (The McCarthy Era is "the most widespread and longest lasting period of political repression in American history.").

While few individuals were ultimately prosecuted under the McCarthy Era laws, thousands were persecuted. Among the latter, larger group were Amici and their relatives, none of whom intended to or actually did engage in violence against this country. Nonetheless, they were investigated, libeled, terminated from and unable to secure employment, blacklisted, prosecuted, and imprisoned. One of the key lessons from this era is that when the federal government fans the flames of public passion by enacting overreaching criminal statutes, staging congressional hearings, and investigating the loyalty of millions of American citizens, it implicitly condones and sanctions retributions against individuals, such as Amici. Eventually, our society and this Court understood that these consequences were unacceptable. We should not make these mistakes again.

It is against this background that this Court issued the decisions that are the controlling law that governs this case. In a series of landmark First Amendment decisions, this Court struck down these statutes, restored freedom of speech and halted guilt by association. This Court concluded that the congressional and executive branch excesses were unconstitutional. The Court held that punishing speech without showing incitement to crime and punishing association without showing specific intent to further illegal ends penalizes innocents and chills the political freedoms at the very core of our democracy.

These principles are equally applicable today, where the federal government (once again) has designated certain organizations as proscribed and purports to make it a crime to speak for or otherwise associate with such organizations. Now, when once again our safety and security have been threatened, this Court should reaffirm the rights to free speech and association.

Stephen Rohde, a constitutional lawyer, was co-counsel with Arnold & Porter on the amicus brief filed by victims of McCarthyism in Humanitarian Law Project v. Holder.