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Professor David Cole on Holder v. Humanitarian Law Project
By Ann W. Parks
Georgetown Law Professor David Cole, just hours after oral arguments in the Supreme Court, discusses Holder v. Humanitarian Law Project with Anthony Barkow of NYU School of Law of other experts at Georgetown Law on February 23
On February 23, the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project — a case that asks whether a federal statute prohibiting material support to government-designated terrorist organizations is constitutional. Given the government’s interest in fighting terrorism, such a statute might seem perfectly legitimate. Yet what happens when the material support provided — the “expert advice,”“specialized knowledge,” or “assistance” prohibited by the statute — consists of nothing more than speech, designed to further peace?
That’s what Ralph Fertig, a retired judge and the lead plaintiff in the case, has spent years in court trying to find out. Fertig, a civil rights lawyer who leads the Humanitarian Law Project, would like to assist groups like the Kurdistan Workers Party in Turkey in finding peaceable ways of resolving conflict. But he’d like a court to state that he can do so without being prosecuted under 18 U.S.C. 2339 B, which punishes such expert advice or assistance with 15 years in prison.
“The government cannot, consistent with the Constitution, make it a crime to engage in lawful discussion of peaceable activities,” said Georgetown Law Professor David Cole in an afternoon briefing session at the Law Center — just hours after representing Fertig and the Humanitarian Law Project in oral arguments before the Court that morning. “The purveying of information through words is what is commonly known as speech.”
The government, however, asserts that the statute is a regulation of conduct that does not run afoul of the First Amendment. And where Cole believes that the statute is impermissibly vague, others like Anthony Barkow, executive director for the Center on the Administration of Criminal Law at NYU School of Law, believe it is clear.
“The statute is an indispensable tool in the government’s arsenal to combat international terrorism,” said Barkow, who authored an amicus brief in support of Attorney General Eric Holder and also served as a panelist during the afternoon discussion at the Law Center — hosted by Georgetown Law’s Center for Constitutional Rights, the Georgetown Center on National Security and the Law, and the Supreme Court Institute. Fertig also attended the event.
The Institute’s executive director, Pam Harris, moderated the panel, which included Melissa Goodman of the American Civil Liberties Union and Peter Margulies, a professor at Roger Williams University. Harris called the case “unusually important” — since for the first time since the attacks of September 11, 2001, the court must address a conflict between First Amendment free speech rights on the one hand and the government’s fight against terrorism on the other.
“What if you’re having a discussion with the Kurdistan Workers Party…and they say, do you know what the weather’s going to be like tomorrow? Isn’t that information that’s derived from … specialized knowledge?” Cole asked the audience. “It’s really hard to know what you can and cannot say.”
A Webcast may be seen Here.