Opinion of the Court: Holder v Humanitarian Law Project

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1!Opinion of the Court

Notice: This opinion is subject to formal revision before publication in the

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notify the Reporter of Decisions, Supreme Court of the United States,

Washington, D.C. 20543, of any typographical or other formal errors, which

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SUPREME COURT OF THE UNITED STATES

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,

v.

HUMANITARIAN LAW PROJECT, ET AL.

[December 14, 2009]

JUSTICE HILL delivered the opinion of the Court.

This case concerns the Antiterrorism and Effective

Death Penalty Act (AEDPA) of 1996, which grants the

Secretary of State discretion to designate foreign terrorist

organizations as such. Both the Kurdistan Workers Party

(PKK) and the Liberation Tigers of Tamil Eelam (LTTE)

were designated so the year AEDPA passed. U.S.C.

2339B(a)(1) of AEDPA makes illegal the provision of

material-support to designated foreign terrorist

organizations. Material-support, as defined by 18 U.S.C.

2339A(b)(1), includes:

any property, tangible or intangible, or service, in-

cluding currency or monetary instruments or finan-

cial securities, financial services, lodging, training ,

expert advice or assistance, safehouses, false docu-

mentation or identification, communications equip-

merit, facilities, weapons, lethal substances, explo-

sives, personnel (1 or more individuals who may be

or include onself), and transportation, except medi-

cine or religious materials. (Emphasis added)




Humanitarian Law Project, et al., prior to AEDPA’s

passage, provided material-support to what it contends are

non-violent, law-abiding wings of said organizations.

Respondents brought their case(s), post-passage, premised

on the contention that material-support, as defined, is

unconstitutionally vague, to District Court, seeking an

injunction.

The United States District Court ordered a preliminary

injunction barring the enforcement of U.S.C. 2339B(a)(1),

citing the terms “training” and “personnel,” both of which

comprise material-support, as unconstitutionally vague.

The Government appealed the order to the Court of Appeals,

and that court affirmed. A second action was brought

against the Government, on grounds that the term “expert

advice or assistance,” also located in U.S.S. 2339B(a)(1), is

unconstitutionally vague. It too came before the Court of

Appeals.

During both sets of appeals, Congress passed the

Intelligence Reform and Terrorism Prevention Act (IRTPA)

of 2004. This Act clarified the definitions of two terms in

question. “Training” no longer relied on its general

definition, instead becoming statutorily defined: "instruction

or teaching designed to impart a specific skill, as opposed to

general knowledge." 18 U.S.C. 2339A(b)(2). “Expert advice

or assistance,” too, became clarified: “advice or assistance

derived from scientific, technical, or other specialized

knowledge.” 18 U.S.C. 2339A(b)(3). In light of clarification,

both Courts of Appeals remanded the cases to the lower

courts.

Both cases, post-remand, were consolidated before the

District Court, where Respondents claimed the terms

“training,” “personnel,” “expert advice or assistance,” and




“service” are unconstitutionally vague. The District Court

agreed, save the term “personnel,” and the United States

Court of Appeals for the Ninth Circuit affirmed, ordering an

injunction, declaring the terms in question

unconstitutionally vague. We grant the Government’s

petition for certiorari and vacate the judgment of the Court

of Appeals.

I

We think the Court of Appeals erred in its decision.

The Court of Appeals’ holding rests on an erroneous

contention: that the terms in question are vague. These

terms include “training,” “expert advice and assistance,” and

“service.” Not one of these terms is vague, the general1 and

statutory2 definitions of each are clear. A person of ordinary

intelligence would be able to understand the meaning of

each, satisfying the Fifth Amendment Due Process

requirement. The vagueness doctrine is, in other words,

inapplicable.

The IRTPA defined the term “training” to include only“instruction or teaching designed to impart a specific skill,

as opposed to general knowledge.” 18 U.S.C. 2339A(b)(2).

This definition, so claims the Court of Appeals, is vague

because it requires individuals to draw impossible

distinctions between prohibited instruction in a “specific

skill” and permissible instruction in “general knowledge.”

Respondents are forced to guess whether human rights

advocacy, a form of training, is a “specific skill” or relies on

“general knowledge.” The fact is, Respondents (like the

average person) are able to distinguish between common

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 Webster’s Third New International Dictionary defines each term in question with certain lucidity.

Terms defined in this publication are what we shall refer to as “general definitions.”2 The IRTPA clarifies the meaning of each word. Terms defined within this Act are what we shall

refer to as “statutory definition.”!




knowledge and knowledge that is so specialized that it is

foreign to the experiences of most people.

Respondents introduce a hypothetical: Under the

Government’s definition, teaching geography would be

permissible because it constitutes “general knowledge,” but

teaching the political geography of terrorist organizations

would constitute a banned “specific skill,” as would the

teaching of English. Such a focused transfer of information

might be construed as imparting a “specific skill.” How is

the layman to know the difference? This argument is duly

noted, but holds little merit. Persons of ordinary

intelligence can distinguish between what is commonly or

generally known and what is a skill possessed by relative

few. Whether or not vague in hypothetical situations,

Respondents’ conduct falls under the definition of training

in both the statutory and general definition. Whether said

term is vague in other contexts is irrelevant.

More broadly, respondents’ arguments indicate only

that under this statute, as under any statute, "imagination

can conjure up hypothetical cases" in which there is

uncertainty. American Commc’ns Ass’n v. Douds, 339 U.S.

382, 412 (1950). Respondents fail to show that the statute

does not give a person of ordinary intelligence a reasonable

opportunity to know what is prohibited." Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972).

The term “expert advice or assistance” fulfills the 5th

Amendment Due Process requirement that a person of

ordinary intelligence be able to understand the term’s

meaning. The Court of Appeals held that “expert advice or

assistance”, clarified by the IRTPA as “imparting scientific,

technical, or other specialized knowledge” is vague and that

“scientific, technical, or other specialized knowledge” fails to

clarify the term “expert advice or assistance.” The Court of




Appeals concluded that while “scientific” and “technical”

knowledge is lucid, “other specialized knowledge” is not. To

argue that point, under the principle of ejusdem generis,

“other specialized knowledge” takes its meaning from the

surrounding terms “scientific” and “technical.”

A person with no legal background, contends the Court

of Appeals, would find the term in question unintelligible.

Moreover, all general knowledge, contends the Court of

Appeals, was once specialized knowledge and this in some

sense is derived from such knowledge. In rebuttal,

Petitioner contends (and this Court agrees) that the statute

applies to advice derived from what is currently specialized

knowledge – not to what is now general knowledge but was

once specialized knowledge at some point in the past.

The Court of Appeals held that “service” is vague

because each of the other challenged provisions could be

construed as a provision of service. The term service, says

the Court of Appeals, presumably includes providing

members of the PKK and LTTE with “expert advice or

assistance” on how to lobby or petition representative bodies

such as the United Nations. “Service” would also include

training members of the PKK or LTTE on how to use

humanitarian and international law to resolve ongoing

disputes. “Service” is clear in any related capacity, as

determined by 387 F3d 144 United Sates v. Homa

International Trading Corporation, it was determined that

the term “service,” as used in a statute prohibiting the

export of “services” to Iran, is “unambiguous.” This term

may be understood by a person of ordinary intelligence and,

like the two previous terms, is not unconstitutionally vague.




II

This Court holds the vagueness doctrine inapplicable to

the terms (and statute) in question. “Training,” “expert

advice or assistance,” and “service” may be understood by a

person of ordinary intelligence, satisfying the 5 th

Amendment Due Process requirement. By looking to the

plain words that compose the statutory and general

definitions, there is no denying the modest, if not crystal,

clarity of each term. The foundation of this Court’s rejection

of Respondent’s contention is in concert with that of

Petitioner. Petitioner contends that the Court of Appeals

conflated the vagueness and overbreadth doctrines; that a

statute’s broad application demonstrates breadth, not

vagueness. In suggesting that “training,” “expert advice and

assistance,” and “service” are vague because each might be

construed to prohibit First Amendment freedoms, the Court

of Appeals reveals its fundamentally flawed (though

perhaps forgivable) thinking. It has applied the overbreadth

doctrine, but termed it the vagueness doctrine.

According to the overbreadth doctrine, a statute that

affects First Amendment rights is unconstitutional if it

prohibits more protected speech than is necessary to achieve

an important government interest.

According to the vagueness doctrine, a crime defined so

vague that a person of ordinary intelligence could not

determine what elements constitute the crime, qualifies it as

such. Such a vague statute is unconstitutional on the basis

that a defendant could not defend himself or herself against

a charge of a crime, which he or she could not understand,

and thus would be denied due process required by the 5th

Amendment.




If a statute is overbroad, it restricts protected rights,

where a statute deemed vague is simply unintelligible. The

two are clearly distinct.

As we determined, none of the three terms in question

is vague. The statutory and general definition of each may

be understood by a person of ordinary intelligence. The

terms in question may, however, be overbroad. The Court of

Appeals held that any of the three terms could be construed

to prohibit First Amendment freedoms. For instance, the

Court of Appeals reasoned training is vague because it could

be read to encompass speech and advocacy protected by the

First Amendment. This brings us to the second question

that demands judgment. Are the terms in question

overbroad? The Court of Appeals, in its holding, declared

the statute as just broad enough. Petitioner, however,

contends the contrary. We find it necessary to address this

claim, insofar as to buttress our central holding.

Respondents contend the statute in question is

overbroad because it regulates speech. We do not consider

this so. The statute in question regulates conduct,

specifically the provision of material-support to designated

foreign terrorist organizations. Speech is regulated only

incidentally. Given this fact, we subject this statute to

intermediate scrutiny under the four-pronged test set out in

United States v. O’Brian.

The O’Brian test requires: 1) that the regulation be

within the government’s power; 2) that the regulation

promote an important interest; 3) that the interest be

unrelated to restricting free expression; and 4) that the

regulation restrict First Amendment rights no more than

necessary. U.S.C 2339B(a)(1) satisfies each requirement. 1)

The regulation is within the government’s power, it is the




federal government’s prerogative to regulate the dealings of

its citizens with foreign entities; 2) the regulate does

promote an important interest, specifically the prevention of

global terrorism; 3) the interest is unrelated to restricting

free expression, it is related to stopping terrorism; and 4)

the regulation restricts First Amendment rights no more

than necessary, it is narrowly tailored given the deference

due Congress in foreign affairs.

The regulation in question satisfies the O’Brian test.

This in mind, we assert that the terms in question are just

broad enough, not overbroad (and certainly not vague).

III

Not as weighty as each aforementioned contention, but

important nonetheless, are several pertinent facts. These

facts weigh on our decision. Firstly, the political branches

(i.e. Congress and the President) are due deference in

foreign affairs. Both branches are aware of the dangers that

threaten the United States of America that the Supreme

Court of the United States, and all lower courts, are not.

The CIA, wise to the threat of foreign terrorist organizations,

does not debrief the courts, but does debrief Congress. This

in mind, it is best to grant latitude to the Government.

Secondly, there is a strong case to be made that support

given to the PKK and LTTE, material or other, funds

terrorist activities. Respondents maintain that they support

only the non-violent, law-abiding wings of these

organizations. After all, Respondents aim to help these

groups seek assistance from the United Nations, the

outcome of which may reduce violence. Still, support, and

the money to which that support is tantamount, is fungible.

If Respondents provide a service free of charge, then money

is freed up in other, perhaps violent, law-breaking wings.




There exists little oversight in these organizations, so one

cannot, in all certainty, know where money flows. For all

Respondents may be aware, the services they contribute to

said organizations may help free up cash to pay for terrorist

activities that put at risk American lives.

We weight heavily the fact that no term in question,

“training,” “expert advice and assistance,” or “service,” is

vague. We also weight heavily the fact that no term in

question is overbroad. According to the O’Brian test, the

statute in question is legitimate, appropriate, and

constitutional. It is also in our mind that the political

branches are due deference and that service to those

designated terrorist organizations, to which money is

tantamount, is fungible. All of this in mind, we come to our

decision. We remand and reverse the ruling of the Ninth

Circuit Court of Appeals.

It is so ordered.

Documents

Opinion of the Court: Holder v Humanitarian Law Project