Patriot Act: Six-Time Lower Court Loser Seeks Supreme Court Redemption
Yesterday the Center for Constitutional Rights filed the first brief in a Supreme Court case testing parts of the U.S. Patriot Act.
Holder v. Humanitarian Law Project is the first case brought all the way to the Supreme Court to test the constitutionality of select provisions of the Act. The case has been knocking around the courts for awhile, but many U.S. citizens may be surprised to learn what lower courts have decided – not just once but six times over the 11-year history of the law.
Lower courts have unanimously declared several provisions of the Patriot Act to be excessively vague. The specifics of this Supreme Court case are probably even less widely known. The Act is being used to prevent a retired U.S. Administrative Judge and Clinical Associate Professor at USC’s School of Social Work from providing human rights advocacy training to the Kurdistan Worker’s Party, also known as the PKK. (Sound bites may have reduced his appellation to "PKK Supporter"). Since the U.S. State Department (as well as the EU, UN and NATO) classifies the PKK as a terrorist organization, even those providing human rights consultation to PKK members are considered to be providing “expert advice and assistance” to terrorists.
The court of appeals ruling which found such language to be unconstitutionally vague – the sixth such finding since 1998 – is being contested by the Obama Administration.
David Cole is a Georgetown University Professor and an attorney working with the Center for Constitutional Rights on the case. He and the CCR believe that the First Amendment “does not permit the government to make advocating human rights or other lawful, peaceable activity a crime simply because it is done for the benefit of, or in conjunction with, a group the Secretary of State has blacklisted.”
The subject of the original suit, Ralph Fertig, acting in one of his many roles as president of the Los Angeles-based Humanitarian Law Project, points out the irony of the case, which, as he puts it, seeks “to punish those who seek peaceful resolutions of conflict,” is itself an ill-considered yielding to violence.
Almost as painfully constructed as some aspects of the hastily pieced-together legislation is the law’s acronym: “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001.” The acronym perhaps reflects a certain political opportunism – that opposing elements of the bill would be unpatriotic. This was a theme during the 2008 election cycle, with some politicians hoping to cast anyone opposing the Act as soft on terrorism.
Representatives from other groups, such as the American Conservative Union, the Washington Legal Foundation, the Bill of Rights Defense Committee and the Electronic Frontier Foundation have also objected to the law’s wording.
Perhaps more troubling, legal scholars worry that it also represents a “statutory constraint on attorney advice,” effectively interfering with the ability of negotiators to participate in working out peace agreements in conflict zones.
Cole’s view seems a reasonable one. “The Supreme Court should make clear that only those who intend to further the illegal ends of an organization can be punished.” The Obama Administration’s Solicitor General Elena Kagan defends the law as regulating “conduct, not speech.”
Given the vastly greater funding and legal protections given to military operations, the quiet proposition that a few qualified voices (Fertig is a novelist, former freedom rider, and recipient of the Eleanor Roosevelt Award for lifetime service in human rights) should be allowed to dialog with groups many consider to be unsavory is probably the same uncomplicated thought John Lennon had in mind with his dangerous doggerel, “Give peace a chance.”
Virtuous and vicious every man must be,
Few in th’ extreme, but all in the degree,
The rogue and fool by fits is fair and wise;
And even the best, by fits, what they despise.
’Tis but by parts we follow good or ill;
For, vice or virtue, self directs it still;
Each individual seeks a several goal;
But Heaven’s great view is one, and that the whole.
-Alexander Pope Essay on Man, Epistle II
Credit: SwatJester photo via Wikipedia Commons