US Supreme Court weighs anti-terrorism
law, free-speech rights
By David G. Savage
The justices sound closely split over whether a USC
professor illegally advised the Kurdistan Workers
Party PKK, listed as a foreign terrorist group.
February 24, 2010
The Supreme Court struggled Tuesday to resolve a
conflict between the free-speech rights of a Los
Angeles-based advocate for international peace and a
broad anti-terrorism law that makes it a crime to
advise a foreign terrorist group, even if it means
advising its members to seek peace.
The justices sounded narrowly split between those
who saw the case as a terrorism issue and those who
saw it as a free-speech issue.
The case is being closely followed by human rights
groups and international aid organizations.
Ralph Fertig is a retired judge and a USC professor.
"I am opposed to violence," he says. LA Times photo
U.S. Solicitor General Elena Kagan urged the court
to uphold the broad sweep of the terrorism law and
to permit prosecutions of anyone who gives any
support to a terrorist group.
"What Congress decided is that when you help
Hezbollah build homes, you're helping Hezbollah
build bombs," she said, referring to the Lebanese
Shiite political party and militia.
But Georgetown University Law Center professor David
Cole said the human rights advocates he represents
are interested in urging foreign groups to avoid
violence and to take their disputes to the United
"They seek to advise them on peaceful conflict
resolution. They seek to support only lawful
activities," he said.
Cole is representing the Humanitarian Law Project in
Los Angeles and its president, Ralph Fertig, a USC
professor who has advised the Kurds in Turkey.
Since 1997, the State Department has listed the
Kurdistan Workers Party, or PKK, as a foreign
terrorist group, which means that Fertig could go to
prison for giving "expert advice or assistance" to
Kagan agreed that Fertig could be prosecuted. She
also agreed that an American citizen could be
prosecuted for drafting a legal brief or writing a
newspaper article in coordination with a banned
For his part, Cole urged the justices to rule that
the 1st Amendment protects those who speak out on
behalf of or advise foreign terrorist organizations,www.ekurd.netas
long as they advocate only peace and nonviolence.
Justice Antonin Scalia said he saw no constitutional
problems with the law.
"The theory of this legislation is that when you aid
any of their enterprises, you aid the organization.
Why isn't that reasonable?" he asked Cole.
But Justices Ruth Bader Ginsburg, Stephen G. Breyer
and Sonia Sotomayor said Fertig and his allies are
not seeking to aid terrorists or terrorism.
"All they want to do is speak about lawful
activities," Ginsburg said.
"What's the government's interest . . . in
forbidding training in international law?" Breyer
Justice Anthony M. Kennedy quizzed both lawyers, but
said he was troubled that the case itself was vague
and abstract. Fertig had not been prosecuted or
convicted, so it was hard to decide whether the
government had gone too far, he said.
The justices will meet behind closed doors this week
to vote on whether to uphold the law as it stands or
carve out an exception for free-speech claims
involving peaceful advocacy.
A ruling in Holder vs. Humanitarian Law Project will
be handed down by June.
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