What a Supreme Court Ruling Means for Humanitarian Groups

Upon taking office, the Obama administration moved rapidly to reverse some of the Bush administration’s rules for interrogating and imprisoning suspected terrorists. But the new administration has supported another piece of Bush-era antiterror policy: the law designed to prevent Americans from providing financial and other kinds of support to groups that the Department of State has designated “foreign terrorist organizations.”

Foundations, other nonprofit organizations, and civil-liberties groups have vigorously criticized the law. This week the Supreme Court held that they will have to live with it.

On a 6-to-3 vote, the court decided that the Constitution permits the restrictions imposed by the law. Despite the general freedom Americans have under the Constitution to join or give to whatever groups they choose, the Court concluded that they may be barred from helping organizations that have, in the judgment of the U.S. government, violent rather than humanitarian aims.

As a result, terrorist groups will have more difficulty converting funds donated by Americans for the social services they frequently provide into support for more destructive activities. But legitimate humanitarian organizations, especially those working in conflict-ridden areas, will need to clearly establish their independence from terrorist groups as well.

Forty-five organizations are currently on the State Department list, including Hamas and Hezbollah, both of which conduct extensive humanitarian and political activities in the Middle East as well as engaging in violent ones. (The Treasury Department also maintains a much longer list of organizations and individuals that are not allowed to receive donations from Americans because of suspected terrorist connections.)

The restrictions on aid to organizations on the State Department list long predate the terrorist attacks of September 11, 2001. But after the attacks, the restrictions were strengthened. They also became more controversial.

Foundations and other nonprofit organizations active outside the United States have repeatedly called the rules too burdensome and broad, keeping badly needed aid from going to foreign organizations that provide humanitarian help in war-torn countries or seek to achieve political solutions to the conflicts under way. Because the rules require special caution in giving to certain groups—in the Mideast, for example—that might in some way be connected to terrorist organizations, Islamic groups have complained that it has become harder for American Muslims to fulfill their religious duty of charitable giving.

This week’s Supreme Court case, Holder v. Humanitarian Law Project, involved two organizations on the terrorist list, the Kurdistan Workers’ Party (which seeks Kurdish independence from Turkey) and the Liberation Tigers of Tamil Eslan (which wants a separate state for the Tamil population of Sri Lanka). Both groups had records of engaging in violent acts, including assassinations.

The same organizations provided a variety of social services in the regions they controlled. Moreover, their political wings were active in the United Nations and elsewhere, seeking to negotiate and call public attention to their grievances. But once the organizations were on the State Department list, Americans who wanted to assist any of their work ran the risk of prosecution for helping a terrorist organization. It was not just monetary aid that could bring prosecution. Providing personnel, expert advice, training, or other services was also forbidden, though medical and religious supplies were exempted from the ban.

In 1998 American supporters of the Kurdistan and Tamil organizations challenged the law. Lower courts held that the First Amendment’s guarantees of freedom of speech and association protected at least some of the ways in which the American groups wanted to help—for instance, by providing instruction in international law.

The Supreme Court overturned the lower court decisions. Writing for the majority, Chief Justice John Roberts reasoned that when donors, in coordination with or under the direction of a terrorist group, give the group support for its lawful and peaceful activities, they both legitimize and free up resources for the group’s unlawful, violent activities. That is, such support to terrorist groups is “fungible.” If Americans wanted to aid the Kurdish or Tamil group through independent speech, they were free to do so; but the kind of coordinated activity involved in the case was not protected by the First Amendment.

The dissent countered that not all contributions to such groups were fungible: There was a crucial distinction between aid for such groups’ lawful activities and aid for their unlawful activities.

Even if a group was on the State Department list, the former type of aid—for example, helping the group conduct advocacy activities by making its case in an international tribunal—should be permitted.

“It is far from obvious,” Justice Stephen G. Breyer wrote for the dissent, “that these advocacy activities can themselves be redirected … toward terrorist ends.” It was only intentional aid to unlawful acts that should merit punishment.

Both the majority and the minority acknowledged that monetary donations were especially problematic. Even if monetary donations were made for lawful purposes, such as supporting social services or humanitarian relief, money—as opposed to, say, advocacy advice—is indeed “fungible”: The money supporting humanitarian aid could allow other resources to be directed toward illegal activities.

Moreover, it is significant that the point on which the majority and minority differed was the question of whether certain types of aid to organizations on the State Department list actually supported terrorist activity—a matter more of fact than of principle. The entire court agreed that Congress and the executive branch had the authority to restrict contributions to organizations sponsoring terrorism. None of the justices interpreted the First Amendment as providing unlimited protection for any and all gifts. The Justices also agreed that some groups, because of terrorist activities, could properly be singled out for special restrictions despite the fact that they also engaged in humanitarian work.

American public policy has generally given broad encouragement to private organizations seeking to help the needy—as long as their activities are truly charitable, which normally entails providing assistance to groups traditionally thought to require help (such as children and the sick) and not offering excessive benefits to private individuals (such as owners or shareholders). Restrictions have been imposed on organizations—such as the Ku Klux Klan—when they were mostly promoting illegal acts or, in the controversial case of the American Communist Party, when their permissible activities were overshadowed by more nefarious ones.

Increasingly, however, international terrorist groups come with a bodyguard of social-service and political organizations. This week’s Supreme Court decision takes the necessary step of giving Constitutional sanction to restricting their support. But it also raises the possibility that the activities of humanitarian groups will now face more stringent scrutiny than they have in the past.