My position on this case is mixed. I disagree with the outcome but can't disagree with the decision based on the way it was argued, which was on the wrong theory. The argument that should have been made was that the statute is not authorized by the Constitution, in the absence of a congressional declaration of war that defines who the enemy is and is not. There is also no constitutional authority for lesser included crimes under the Treason Clause, a failure to maintain the need for two independent witnesses to the act, and a lack of specificity as to what is "material support" that makes it void for vagueness, but almost certainly does not include merely providing legal advice or advice to make peace.
It is also a dereliction to defer to Congress on a constitutional construction. Congress has abandoned even the pretense of trying to comply with the Constitution. The Court should presume unconstitutionality, not the reverse. In other words, it is not properly a First Amendment case, but a War Powers/Treason case. See the debates in the U.S. Senate, 10th Congress, 1808: *Treason and other crimes* <http://constitution.org/ac/017/s10-1/treason.htm>, 1808 Feb 11, 24, Mar 1; /Annals 17:108-27, 135-49, 159-50/ The senators then found that there is no constitutional authority for making conspiracy or other ancillary acts crimes. Begin forwarded message------ Holder v. Humanitarian Law Project (No. 08-1498 & 09-89) Decided: 6/21/10 Roberts, C. J. delivered the opinion of the Court, Stevens, Scalia, Kennedy, Thomas, & Alito, J.J. join. Stevens, J. dissenting, Ginsburg, & Sotomayor, J.J. join. http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf FIRST AMENDMENT (The Federal Material Support Statute does not violate the First Amendment as applied to the particular kinds of support that the parties sought to provide to foreign terrorist organizations) Plaintiffs, HLP, filed suit challenging the Material Support Statute, claiming that they were unable to provide support to the PKK and LTTE in the form of monetary contributions, other tangible aid, legal training, and political advocacy for fear of prosecution. The District Court denied the First Amendment challenge but granted injunctive relief on the vagueness of the terms "personnel" and "training" used in the definition of material support. The Court of Appeals affirmed. Congress amended the Statute to include several other types of behavior and enacted legislation that clarified the meaning of personnel, prompting the Humanitarian Law Project to file another complaint. The District Court granted partial relief on the vagueness of the terms "training," "expert advice and assistance," and "service" but not the free speech issue. The Court of Appeals affirmed. Holder, for the government filed for certiorari and HLP filed a conditional cross-petition. The Supreme Court held that the Material Support Statute is Constitutional as applied to HLP's desired conduct since it provides a person of reasonable intelligence with notice of the prohibited conduct. The Court further defers to the legislature in its regulation of conduct with respect to national security, finding that in this case there is no First Amendment violation because of the connection between the enumerated activity and various terrorist activities. [Summarized by: Adriana Jimenez] -- Jon ---------------------------------------------------------- Constitution Society http://constitution.org 2900 W Anderson Ln C-200-322 Austin, TX 78757 512/299-5001 [email protected] ---------------------------------------------------------- [Non-text portions of this message have been removed]
