Holder v. Humanitarian Law Project

From ScotusWiki

Argued February 23, 2010. Decided June 21, 2010.

Authorship: Lyle Denniston of SCOTUSblog

Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.

1 Briefs and Documents
2 Opinion Commentary
3 Argument Recap
4 Pre-Argument Articles
- 4.1 Argument Preview
5 Links and Further Information

Briefs and Documents

Decision

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED in a 6-3 decision with an opinion written by Chief Justice Roberts. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.

Oral Argument

Transcript (February 23, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

08-1498

09-89

Opinion Commentary

Lyle Denniston originally wrote the following for SCOTUSblog:

Analysis

For the first time in nearly nine years of what the government has called a “war on terrorism,” the Supreme Court on June 21 ruled decisively in the government’s favor — but still stopped short of providing an unqualified victory. The Court ruled, by a 6-3 vote, that it does not violate the Constitution for the government to block speech and other forms of advocacy supporting a foreign organization that has been officially labeled as terrorist, even if the aim is to support such a group’s peaceful or humanitarian actions. But the Court added a significant qualifier: such activity may be banned only if it is coordinated with or controlled by the overseas terrorist group. That limitation, however, may be fairly difficult for lower courts to apply case by case; the Court provided little specific guidance.

Conceptually, the ruling in companion cases involving supporters of dissidents in Turkey and Sri Lanka borrowed from a constitutional idea that the Court has used for years for domestic political organizations: the government has less power to control independent political advocacy than it does actions that are coordinated with the political parties. That concept was moved to the global stage, involving U.S.-based organizations or individuals who favor the peaceful goals of two overseas groups blacklisted by the State Department.

The cases of Holder v. Humanitarian Law Project, et al. (08-1498) and Humanitarian Law Project, et al., v. Holder (09-89) are the only war-on-terrorism cases the Court will decide this Term. They involved the federal law that bans “material support” to listed foreign terrorist organizations — the law that is the government’s favorite legal weapon against terrorists.. Although that law is most often used for criminal charges against violent actions or threats of violence, Monday’s decision did not involve that situation. The groups and individual involved do not support any terrorist actions by the listed groups. Rather, they wanted to avoid criminal prosecution for what they considered free speech or other forms of public advocacy to help the listed groups achieve peaceful goals.

Chief Justice John G. Roberts, Jr.,, who wrote the majority opinion, sought to emphasize how narrow the ruling was, even while making it unmistakably clear that the Court was quite willing to defer to the political branches — Congress and the Executive Branch — on what they decide needs to be done to protect the U.S. from terrorism. Thus, the main opinion moved back and forth between stress on its narrow scope, and an acceptance that even benign actions can be interpreted as helping to advance the dangerous goals of listed organizations.

The fact Justice John Paul Stevens, who has written some of the Court’s strongest opinions rejecting government claims to power over terrorism, joined without quibble in the Roberts opinion supported the notion that it was narrow. (Stevens, no doubt, also was attracted to an opinion that applied the most rigorous test of the government power to control speech — that is, it must satisfy “strict scrutiny” — to a law designed to protect national security.) But the fact that the Court’s other liberal-leaning Justices filed a strongly worded dissent — and Justice Stephen G. Breyer took the somewhat unusual step of orally reciting the dissent from the bench — supported the appearance that the Court had gone quite far to allow criminalizing of speech activity in this realm of the law.

This marked the first time in the Court’s recent interpretation of war powers that it moved away from issues related to capture and detention of terrorism suspects, and directly confronted the government’s authority to use its criminal law to punish or at least to disrupt or prevent terrorism acts. Its broadest ruling so far on detainees was its 2008 ruling in Boumediene v. Bush giving captured suspects a constitutional right to challenge their continued confinement. In applying the Boumediene decision over the past two years, lower federal courts have gradually moved toward the general conclusion that detention is allowed, but only for individuals who have acted under the control of or as a direct part of the Al-Qaeda or Taliban terrorist networks.

Now, turning to criminal law enforcement as an anti-terrorism tool, the Supreme Court came to something of the same conclusion. Speech or other forms of advocacy will escape criminal prosecution so long as it is “independent advocacy,” or constitutes “any activities not directed to, coordinated with, or controlled by foreign terrorist groups,” in language used in the Chief Justice’s opinion. Congress, in enacting various versions of the “material support’ law, has avoided imposing any restrictions on those actions, Roberts stressed. Moreover, no kind of speech activity can be punished under the law, according to the opinion, unless the speaker knows the foreign group being supported is a terrorist organization on the government’s banned list.

Along with that attempt to pare down the law’s reach, the Court majority also pointed out that it had not endorsed the government’s view that the concept of “material support” reaches very far indeed. Roberts noted that the government had argued that the law only sought to regulate conduct, not free speech. The government has taken the view that organizations on its terrorist list are so dangerous and so criminal in their actions that any kind of support for them can be prosecuted without violating the First Amendment.

The Court agreed that the two listed organizations involved are “deadly groups” and the opinion recounted some of their violent actions, and then commented: “It is not difficult to conclude as Congress did that the ‘taint’ of such violent activities is so great that working in coordination with or at the command of the [two organizations] serves to legitimize and further their terrorist means.”

Still, the Court went on to try to assure U.S. organizations and citizens who want to support only those two groups’ humanitarian efforts that they remain free, under the law, to “say anything they wish on any topic. They may speak and write freely about the [two groups], the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations.” But, in each of those scenarios, they must do so on their own, independent of the two groups on the government list. the Court said. (While the opinion also said that the U.S. organizations and individuals may not be punished for becoming members of the two listed groups, it did not indicate how they could do that and still remain “independent” of them.)

Most of what the law is designed to cover, the Chief Justice wrote, is not speech at all. But, when it does apply to speech, he added, “the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in corddination with foreign groups that the speaker knows to be terrorist organizations.”

However, the Court also laid out strict warnings to lower courts not to closely second-guess the government’s claims of what kinds of activity does advance the terrorist goals of foreign organizations on the official list. “Congress and the Executive,” the Chief Justice wrote, “are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not….When it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked,…and respect for the Government’s conclusions is appropriate.”

The Roberts opinion was supported in full by Justices Stevens, Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Justice Breyer wrote the dissent, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Breyer’s opinion argued that the majority’s requirement for “coordination” of speech activity with a terrorist group was not a limitation in any real sense. “There is no practical way,” he wrote, “to organize classes for a group (say, wishing to learn about human rights law) without ‘coordination.’ “ Moreover, the dissent said, the Court had accepted the government argument that even support for a group’s peaceful aims could help “legitimate” that group, and thus further its violent acts, too. “Once one accepts this argument, there is no natural stopping place,” Breyer concluded.

Argument Recap

Lyle Denniston originally wrote the following for SCOTUSblog:

With a federal government lawyer pushing for a sweeping interpretation of the government’s most-used anti-terrorism law, the Supreme Court on Tuesday at times seemed tempted to conclude that, perhaps, the law may go too far. Although some of the Justices made it clear they were sympathetic to Congress’ attempts to stop aid to international terrorist groups, a somewhat surprising skepticism set in as the 62-minute argument in the Humanitarian Law Project cases unfolded. Near the end, Chief Justice John G. Roberts, Jr., suggested that the “material support” law may need another airing in lower courts, with that statute perhaps having to clear a higher constitutional hurdle — an option that could make it unnecessary for the Court to decide now what swing-vote Justice Anthony M. Kennedy called “a difficult” case.

Before the Court could get to that point, it appeared, it might have to satisfy itself that a distinction can be drawn different kinds of support that Americans might provide to an organization that is on the U.S. government’s terrorist blacklist. Several members of the Court — but especially Justice Antonin Scalia — wondered if any kind of aid to such a group necessarily can be turned into a benefit for its violent activities. If the Court accepted that proposition, then the law would be likely to escape this challenge now before it. But Solicitor General Elena Kagan, although advocating a very broad scope for the law, did not press that point. She offered a number of concessions that might narrow, though only slightly, the law’s scope. Under further questioning, however, she talked herself into some trouble in arguing that the law might make it a criminal act for a blacklisted group even to hire a lawyer to put its views before a U.S. court, or to use an American as its advocate for peaceful aims before the United Nations.

The Court was reviewing the cases of Holder v. Humanitarian Law Project (08-1498) and Humanitarian Law Project v. Holder (09-89) as tests of a law dating back to 1996 providing up to 15 years in prison if convicted of providing “material support” to any group designated by the U.S. government as terrorist. The law is considered vital by the government to its anti-terrorism legal campaign, as Kagan pointedly noted as she began her defense of the law, following a fervent attack on it by her opponent, Georgetown law professor David D. Cole. Cole was questioned rigorously (especially by Justice Scalia) in trying to persuade the Court that his clients wanted only to engage in benign, humanitarian activities, and yet the points he made seemed to set the stage for even more challenging questioning of Kagan.

Cole made little headway in trying to convince the Court that it should follow its own example in the 1950s and 1960s when it was willing to tolerate some benign activities of the Communist Party. Justice Scalia said Communists were different from terrorists; many people became Communists for philosophical reasons, the Justice said, but terrorist groups — such as Hamas — exist only to commit violence. And Justice Kennedy said that, at the time of the rulings in the Communist cases, there was no federal law forbidding support to the Communist Party, as there now is for terrorist groups.

The professor, however, steadily pushed his argument that the material support law would, in fact, reach a good many forms of “pure political speech” of the kind he said the First Amendment protects, and that approach drew the Justices into a close examination of just what kinds of support might be banned, or allowed, by the law. These exchanges had the apparent effect of gradually shifting the Court’s focus away from whether any kind of support would translate into aid for terrorism, to the more discrete question of whether the kinds of activities the Humanitarian Law Project wanted to pursue were covered by the law’s reach — exactly the focus that worked to Cole’s advantage. Although Justice Scalia suggested that the Court could fill in the blanks of the law’s scope in future cases, after turning aside the particular challenge that the Project supporters were making, other members of the Court were not deterred from examining the law’s parameters.

Questioning by Justices Samuel A. Alito, Jr., and Sonia Sotomayor gave Cole a chance to make his point that the Court should interpret the material support law to be limited to the kind of aid that is provided with the specific aim of supporting violent or terrorist acts by blacklisted groups. He told Sotomayor that there was no “reasonable likelihood” that the kinds of speech activities that the Project supporters wanted to undertake would further the terrorist aims of groups on the blacklist.

Almost from the start of Kagan’s argument, she had to deal with hypothetical scenarios that the Justices put before her to test just how far her description of the “material support’ law would reach. Justice Sotomayor started the probing, with a question about whether it would provide illegal support for a group if an attorney represented it in a U.S. court. The Solicitor General said that would not be illegal, if the group had been charged with a crime, because it would have a constitutional right to defend itself.

Even while making some such concessions, Kagan insisted that, because the targeted groups were foreign, Congress had wide authority to pass laws to limit how Americans might interact with those groups. And she made sure that any concession she made was only to put beyond the law actions of “independent advocacy” by Americans not directly tied to the listed organization itself. She said that the kinds of activities the law might reach that would implicate the Constitution were a mere “thimbleful” compared to the “ocean” of support activities that the law would legitimately forbid.

“To the extent the Court thinks some of these hypotheticals raise constitutional concerns, the Court can put those off to another day,” she suggested. That thrust, however, did not stop the Court from raising even more scenarios. And as those questions proceeded, Kagan left Justice Ruth Bader Ginsburg puzzled about just where she was drawing the line between legal and illegal support for a listed organization.

But she was tested most aggressively when several of the Justices pressed her about the kinds of actions by attorneys that might come under the law, as she interpreted it. She told Justices Kennedy, Sotomayor and John Paul Stevens that the law would forbid a listed group from retaining a lawyer to file a friend-of-court brief in a U.S. court on its own behalf, because that would amount to an outlawed “service” to the organization. And she told Stevens that, if one of the Project supporters involved in this case — California college professor Ralph Fertig — approached the United Nations as an agent of one of the listed groups, he would be covered by the law.

During Cole’s rebuttal argument, he had a chance to make his argument that the Court should judge the material support law applying the most difficult test — strict scrutiny — and to argue that the law could not possibly survive under that standard. He told Sotomayor, though, that the lower courts in the case had never had a chance to analyze the case under that standard. That was when the Chief Justice suggested that, perhaps, a remand for such an inquiry might be the proper outcome, if the Court were unwilling to uphold the law on the lesser standard Kagan had advocated.

Pre-Argument Articles

Argument Preview

Lyle Denniston originally wrote the following for SCOTUSblog.

Amid a hot political debate in Washington on whether the government is being tough enough on terrorists, the Supreme Court examines whether Congress acted unconstitutionally in making it a crime to provide a wide range of support to organizations that the government has blacklisted under anti-terrorism laws passed in 1996, 2001 and 2004. The review of the 2001 provisions brings before the Court, for the first time, the USA Patriot Act — the sweeping law passed by Congress six weeks after the Sept. 11, 2001, attacks.

Background

For the past 12 years, Americans who are descendants or supporters of the Tamil people, a linguistic group native to India, Sri Lanka and Malaysia with two thousand years of history, have been locked in a courthouse battle with the U.S. government. As the case reaches the Supreme Court, it shapes up as the next major test of the First Amendment, following the Court’s deeply controversial ruling Jan. 21 on the free speech rights, in politics, of U.S. corporations (Citizens United v. FEC). In fact, within hours after the Court decided the corporations case, a brief filed in the Tamils’ case repeatedly cited that ruling to support their First Amendment claims.

From the beginning, and still, the legal adversaries have proceeded on totally contradictory perceptions: the Tamil descendants insisting that they only want to provide completely benign aid to a humanitarian cause and, indeed, to encourage non-violence, with the government countering that the groups they want to aid are deeply involved in widespread terrorist violence in Europe and Asia.

The challengers also are arguing that the government wants to wipe out a host of activity shielded by the First Amendment, and the government is contending that it has no such aim. The Supreme Court will decide who is right when it rules on two cases being argued together. Each side partly won and partly lost in two rounds of lower court rulings, but each side will argue all parts of the case when they appear before the Justices.

The Tamils’ challenge, filed in federal court in 1998, involves two U.S. citizens, California college professor Ralph D. Fertig and New York medical doctor Nagalingam Jeyaligam, along with the organization that Fertig serves as president — the Humanitarian Law Project — and five pro-Tamil organizations in the U.S. Those groups are Ilankai Thamil Sangam, Tamils of Northern California, Tamil Welfare and Human Rights Committee, Federation of Tamil Sangams of North America, and World Tamil Coordinating Committee.

Their lawsuit was filed to gain the right, without threat of criminal prosecution, to continue their efforts “to speak to, for, and in coordination with” two organizations that are on the U.S. list of designated terrorist groups. Those two groups — the Kurdistan Workers’ Party and the Libertarian Tigers of Tamil Eslam — engage in “a wide range of lawful, non-violent activity,” and that is all that the Americans seek to support, their lawyers have argued.

The federal government, however, told the Court that the Workers’ party (sometimes called the “PKK”) “has waged a violent insurgency that has claimed over 22,000 lives throughout western Europe,” and that the Tamil Tigers organization “has used suicide bombings and political assassinations in its campaign for independence” in Sri Lanka, “killing hundreds of civilians in the process” — including the president of Sri Lanka and two other high government officials there.

The legal dispute began two years after Congress gave the U.S. Secretary of State power to designate a group as a “foreign terrorist organization,” and criminalized “material support” to such a group. As amended by the Patriot Act of 2001 and a new anti-terrorism law in 2004, the “material support” law has become the government’s main legal weapon in its “war on terrorism.” Since 2001, the Justice Department has charged some 150 defendants with violations of the law, obtaining convictions in only about half of the cases. The Department calls the law “a vital part of the Nation’s effort to fight international terrorism.” The concept of “material support” for terrorism written into the law also has provided a legal rationale for the detention of individuals captured overseas and held at Guantanamo Bay.

Before the Supreme Court, the constitutional dispute tests five parts of the law. Three of those were struck down by lower courts: criminalizing “material support” in the form of “service,” ”training,” or “expert advice or assistance.” The lower courts found those to be unconstitutionally vague and sweeping too broadly, possibly criminalizing free speech. Two other provisions were upheld below: support in the form of “personnel” or “expert advice or assistance” if it was “derived from scientific or technical knowledge.”

In an earlier round in the case, the Tamils sought Supreme Court review, but that was denied in 2001. The case then returned to lower courts, resulting in the split decision now before the Justices.

Petitions for Certiorari

The Justice Department, last June 4, took the case back to the Supreme Court, arguing that the decision to block enforcement of the three provisions “seriously undermines the statutory scheme created by Congress” to help the government fight terrorism globally. It noted that some of the successful prosecutions it has carried out under the law involved parts that were nullified by the Ninth Circuit Court in its latest ruling.

The central theme of the government’s appeal is that the law is not aimed at curbing speech, but only targets “conduct,” and any impact on free expression is merely “incidental.” It has also pressed the point that the law requires proof that the actions prosecuted were carried out with knowledge that they were helping a terrorist organization. If there is any vagueness in the law’s wording, the petition contended, this last requirement cures it.

Moreover, it argued, the words and phrases nullified by the lower courts cannot be considered vague on their own, because they are ”clear and readily intelligible to the average person.”

The petition noted that Congress had included in the law a direction to the courts where it might be challenged, mandating that they were not to read the law to violate the rights safeguarded by the First Amendment. The lower courts should have followed that direction, and found a way to uphold the law by narrowing its scope, if necessary to save it. The Court, it added, would be free to interpret the law now so that it did not apply to “independent advocacy.”

A month later, the Tamils and their organizations opposed Supreme Court review of the government appeal, arguing that the lower courts had not split on the validity of the law, the decisions at issue had in fact left the “material support” law largely intact, and had put no “substantial limits” on the government’s authority to prosecute aid to terrorists. In addition, they contended that the lower court left room for Congress to act further, if it chose to do so.

Still, the Tamils suggested that, if the Justices did agree to rule on the provisions tested by the government’s appeal, it should take on the entire case and decide on the validity of all five of the provisions at issue. Their conditional petition vigorously attacked the law’s ban on support in the form of training or advice based on scientific or technical knowledge. Those words are capable of supporting a criminal prosecution on a wide range of free speech activities, including publishing a statement by a leader of a blacklisted organization, or providing legal advice if such a group filed a human rights complaint with the United Nations.

The main theme of the Tamils’ own petition is that the government itself had demonstrated, by the vigor of its defense of the most sweeping interpretation of the law, that advocacy of the most benign kind could draw a criminal charge.

The Court, in its first round of grants of review this Term on Sept. 30, accepted both the government’s and the Tamils’ petitions, and consolidated them for briefing and oral argument. In November, the Court granted the two sides’ proposal that the Tamils start the briefing as the “top side,” that both sides would file papers and argue the full range of the issues, and each side would have a chance to file briefs replying to the other side’s principal brief.

Merits Briefs

The Tamils’ brief on the merits renewed the argument that no one of the five words or phrases at issue could satisfy the First Amendment. What the two individuals and six organizations seek to do, the brief asserted, involves “pure political speech,” and yet the government considers their activities to be criminal under the “material support” law.

Further bolstering its argument by relying on what government lawyers had said in lower court hearings in the case, the brief said that those lawyers have openly said it would be a crime “to submit an amicus brief in federal court, to petition Congress or the United Nations for legal reform, or even to speak to the media, for the benefit of a designated organization, as well as to teach such an organization human rights advocacy or English.”

Directly disputing the government’s claim that the law targets conduct, not speech, the Tamils’ brief said federal lawyers have argued that speech would, in fact, be targeted if it were of “benefit” to a listed group. Protected speech under the Constitution, it added, “protects more than the abstract right to speak ‘independently,’ but also the right, asserted here, to speak to others, in association with others, and at the direction of others.” Thus, it said, the government’s claim that the law would not apply to “independent advocacy” is not sufficient to save it.

In weighing the law’s validity, the brief said, the Court should use the most demanding constitutional standard: that is, the law would be valid only if it could satisfy “strict scrutiny.” No more lenient standard is justified when “pure political speech” is at risk, it asserted.

In a significant strategic maneuver, the Tamils’ lawyers told the Court that it could avoid answering the constitutional questions altogether by reading into the law a new requirement of proof — that is, proof that an individual or group specifically intended “to further an organization’s illegal ends where, as here, pure speech and association are at stake.” Members of Congress said, when the law was first passed in 1996, that it should reach as far as its could, “consistent with the Constitution,” and members’ said that would mean it reached only support for an organization’s “terrorist functions,” the brief noted.

The government’s merits briefs again stressed the ordinary meaning of the challenged provisions, saying they are readily understood and thus clearly pass any constitutional standard of vagueness. But, it went on, the Court should not apply the “strict scrutiny” standard, as the Tamils advocated, because it has never done so in interpreting the scope of a criminal law that is challenged as too vague.

At its furthest reach, the law only “incidentally captures some expressive activity,” so a more tolerant constitutional standard is proper, the brief asserted. The Tamils, it contended, “may express any views they wish” about the two listed organizations, or any other “terrorist organization.”

What the law does not allow, and this is all that it bans, is contribution of resources to listed groups “that further those groups’ activities,” according to the government. In elaborating on that contention, the brief does suggest that the Justice Department does take a broad view of what kind of activity might “further” a listed group’s activities. For example, it suggested that teaching a listed group how to make an appeal for relief to the United Nations, as the Tamils wish to do, would be teaching it a special skill, and that would bring it within the law’s reach.

The Tamils “may not believe such activity to be harmful, but they must understand, as all reasonable observers would, that the activity is covered by the statute’s terms.”

The brief went on to challenge the “hypotheticals” that the Tamils raised about providing legal or journalistic services. The law, it argued, clearly allows the Tamils to engage in “independent advocacy,” so long as they do so “entirely independently.”

What is at stake here, it concluded, is not “pure speech” at all, since the Tamils remain free “to lobby Congress, to teach and advise on human rights, to promote peaceful resolution of political disputes, and to advocate for the human rights of minority populations” — all things that the Tamils said they wanted to do.

The government urged the Court not to consider the Tamils’ maneuver, suggesting a reading of the law to require specific intent to further the listed groups’ terrorism. That issue was not raised in lower courts in the form outlined in the Tamils’ merits brief, and now comes too late, it said.

Analysis

The Court is confronted in these cases with the potentially challenging task of seeing the listed organizations that are at the center of the government’s attack as simultaneously violence-prone and yet also dedicated to humanitarian causes. While the government in its advocacy has not over-emphasized the violent record it attributes to the PKK and the Tamil Tigers, it has done enough to make sure that the Court is aware of that.

The two Americans and their six domestic organizations are not linked by the government to those kinds of activities, and yet the government, in discussing the plans that those individuals and groups have, goes to considerable lengths to suggest that the listed groups would “benefit.” The practical effect is to make the separation more difficult.

And the government has the tactical advantage of knowing that Supreme Court Justices, like every one else in the Nation, are acutely aware of the ongoing threat of global terrorism, and may start out with a reluctance to curb the government’s use of its primary anti-terrorism tool. The centrality of that law to the anti-terrorism effort is made abundantly clear in the government’s papers.

On the Tamils’ side, they have the advantage of knowing that the Court these days is willing to defend what it perceives to be First Amendment rights even when doing so is quite controversial (as in Citizens United). But the degree to which this might aid the Tamils depends upon the success of their lawyers in persuading the Court that their activities are, indeed, “pure speech” protected by the First Amendment.

Further, the First Amendment argument might truly work for the Tamils if the Court were to take their suggestion to apply “strict scrutiny.” The government, understandably, wants a more relaxed standard, and may, in fact, need that in order to prevail.

If the Court finds choosing up sides between the two basic constitutional positions too difficult, each side has offered it a narrowing interpretation of the “material support” law that could provide a fallback position for the Justices. The more benignly it might view the activities of the Americans and their domestic groups, the more likely the Court may be to require proof of a goal of advancing terrorist violence.

The Court is expected to decide the cases before recessing for the summer in late spring or early summer.

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