Four Concerns I Have With the Newest Supreme Court Decision

What I have read about the newest Supreme Court decision has me concerned. According to the Christian Science Monitor:

The US Supreme Court has put international humanitarian workers on notice that any assistance to a US-designated terrorist group could land them in an American prison.

On Monday, the high court upheld a federal law that outlaws providing “material support” to any group on a State Department list of terrorist organizations.

The prohibition extends beyond knowingly facilitating illegal operations. The law – part of the USA Patriot Act – makes it a federal crime to provide any help or support to a terror group – even support designed to teach a violent group how to use legal and peaceful means to achieve political change.

Now, I have not gone through the written decisions, and so I hope that some elements of my complaint have been worked out, though the little commentary I have seen suggest they have not.

First, this gives too much political power to the one who decides which groups are terrorists or not. Who is it that has this power, and what control will there be upon them to make sure their decision is fair? How, exactly, will they designate a group to be terrorist or not? More importantly, if you dispute the claim of one group or another being a terrorist, have you now given enough support to a declared terrorist organization that you are guilty of a crime according to the USA Patriot Act? This can easily enter dangerous police-state territory.

Second, as to the issue of material support, did the Supreme Court clarify what they mean by this? The notion that “material support” is enough raises the question: how proximate does the support have to be? Once again, I can see this stipulation being abused very quickly. If there is no designation as to how remote the material support can be, this law can be used to indict anyone — all one has to do is show some connecting links to one’s activities with terrorists, and they can be arrested (if I were to do it, I would trace the links through gas consumption). While I would hope that the Supreme Court meant proximate material support, that they do allow people to be charged and imprisoned for giving to charity which has questionable connections indicates that it is not entirely clear.

Third, how consistent will the law be used? This again is indicative of its ability to be abused. If it is not being applied equally to all people, but being used merely as a way to get at politically charged individuals, than I question the fairness of the law. Would we, for example, be able to make a case that the US Military is now a Terrorist Supporter, based upon investigative reports which indicates it has been giving considerable money to Afghans with Taliban connections, as per this BBC report: *

Investigators say the US military has been giving tens of millions of dollars to Afghan security firms who are channelling the money to warlords.

Trucks carrying supplies to US troops allegedly pay the firms to ensure their safe passage in dangerous areas of Afghanistan.

The convoys are attacked if payments are not made, according to allegations in a US military document.

The congressional report follows a six-month investigation.

The document states that trucks carrying food, water, fuel, and ammunition may be supplying up to $4 million (£2.7m) per week to the firms.

A US congressional committee is expected to hear the evidence on the investigation from senior officials at the US Department of Defense later on Tuesday.

Fourth, of course, is the question of humanitarian aid. Christians know the best thing that can happen is for an enemy to become a friend, and part of the way that is possible is through charity. If we show good will to the people, it will be hard for them to continue to hate us. Humanitarian aid is needed in many regions where terrorist organizations exist, and giving that aid is likely to help the terrorist organizations, in one fashion or another (as the US Military example above indicates). Fear should not be the policy, but charity. What we see, instead, is the desire to strangle the terrorists, without concern of the damage which is done to others in the process. The problem with this policy is that it makes more terrorists, more people angry with us. If you want to continue the cycle of violence and hate, this is the way to do it.

Now, I’m not entirely sure if all my concerns have been properly met by the decision or not, though from the little I’ve read, those concerns seem to be the kind in the dissent. What exactly is your view of this decision?

This was not the only questionable decision of the day. The Supreme Court also overturned a ban on planting of genetically altered alfalfa, saying that Monsanto doesn’t have to run environmental tests before its use. Once again, we see business interests are more important than safety. Hopefully we won’t see the vegetable version of the oil spill, but, the more we alter our foods, the more unpredictable the results will be.

* Obviously, the answer is no. “The Secretary of State does have authority to grant exemptions to certain groups under the material-support provision, and people who work with charities said they were hopeful the State Department would do so in a way that would encourage peace-building work” (The Chronicle of Philanthropy). But this just indicates how arbitrary the law can be enforced for political motives.

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  • M.Z.

    I think you are correct in indicating that this signals an ideological shift. Certainly there are areas for disagreement. Our support of numerous groups in South America were at least questionable. Our engagement with China was seen as questionable at the time and is still questioned by many. Yet the folks who see these two engagements as successes would also look down upon those supporting Hamas to provide humanitarian aid in Lebanon or engaging Cuba to help modernize that country. The idea that one can’t have shared interests with parties one considers wicked just doesn’t admit of the nuance most folks actually hold. For that matter, I’m thinking all this focus on remote material cooperation is misplaced energy.

    • Henry Karlson

      MZ I’m not sure what you mean, my focus on remote material cooperation or the courts? The court, it seems, is using remote material cooperation to imprison people; I agree, they shouldn’t be doing that, if that is what you meant.

      • M.Z.

        The courts focus is misplaced. In the larger society, I think it is also misplaced. Your observance of their obsessing over it is proper and right.

        • Henry Karlson


          Ok. Got it. You know, what I see here is the typical misunderstanding of cooperation with evil which is becoming quite common in political debates, where material and formal cooperation are made as if one. This is obviously done in the abortion debates, but, as we see here, it is an ideological spill which is slowly transforming the way our nation thinks and acts. I shudder when I ponder where this line of thought might end up.

  • jh

    Henry I do think you raise some interesting questions. The problem is it does not seem these questions were put in front of the Court.

    In fact the Plantiffs seemed to go out of the their way to saying their claims and issues had to deal with purely First amendment issues. Their examples of giving expertise on how to peition the UN etc etc.

    So in sense the narrow holding based on the claims before the Court might not reach all these issues.

    That being said I think it is pretty clear in the Dicta (at least I think it is Dicta but very very strong Dicta -I need to read it again) that basically the Court is fine with deferring to the Congress and the Executive on these matters that you raise.

    In fact looking at the Dissent it appears they are fine with that too and just raise objections on the first amendment grounds.

    So looking at the tenor of the question it seems the Court is saying they will play their traditional role and stay out.

    As to how decides who is a terrorist group. I do think that Congress retains their oversight and check on the authority of the Executive if needed.

    However as to the issue you raise it seems to me the Court in their comments are saying that is a Legilative and Executive matter

    • Henry Karlson


      But wasn’t one of the reasons why we have the First Amendment is the concern that political opposition would be seen as justification for imprisonment? In this case, hasn’t the court completely gone beyond the “original intent” of the Bill of Rights? (It’s ok to say it has, but I find it contradictory to find those who claim to be originalists to go against it). In this way, not only is the intent of the First Amendment put into question, we have seen some very odd things from the courts, leading to the following: money is speech for corporations, but not people. Of course, my concern is more than the intent of the First Amendment, but what this means in practicality, which would be my concerns even if the First Amendment intended what we saw with this court ruling.

  • jh


    I in my view I think the COurt does a sufficent job of not outlawing politcal oppostion. It seems their focus is on Poltical Advocacy that is directly coordinated with the groups. In fact they go out of their way to say they are not talking about Independent Advocacy

    In other words if these groups decided on their own to write a book “How to petiton the UN if are Hamas” then it would be protected.

    The Court reserved the question but strongly implied that even Independent Advocacy that the Govt wished to ban would have to meet perhaps something more than the Strict Scrunity test. Of course the Court is not real clear on this test which is part of the problem in how this opinion will be read.