Terrorism and Associations

• Jurisdiction: United States,Federal
• Publication year: 2014
• Citation: Vol. 63 No. 3

Terrorism and Associations

Ashutosh Bhagwat

TERRORISM AND ASSOCIATIONS

Ashutosh Bhagwat^*

Abstract

The domestic manifestation of the War on Terror has produced the most difficult and sustained set of controversies regarding the limits on First Amendment protections for political speech and association since the anti-Communist crusades of the Red Scare and McCarthy eras. An examination of the types of domestic terrorism prosecutions that have become common since the September11 attacks reveals continuing, unresolved conflicts between national security needs and traditional protections for speech and (especially) associational freedoms. Yet the courts have barely begun to acknowledge, much less address, these serious issues. In the Supreme Court's only sustained engagement with these problems, the 2010 decision in Holder v. Humanitarian Law Project, the majority largely avoided the hard questions by simply asserting that 18 U.S.C. § 2339B, the federal statute forbidding the provision of material support to foreign terrorist organizations, does not directly burden either the freedom of speech or freedom of association. Lower courts have performed even more poorly, generally rejecting powerful speech and association claims with bare assertions that "there is no First Amendment right . . . to support terrorists."

This Article has taken as its major goal identifying and analyzing the First Amendment issues raised by the domestic War on Terror, focusing especially on the role of freedom of association in this context. Freedom of association has historically been a critical and basic First Amendment right, central to the process of democratic self-governance that the First Amendment protects. The right of association is also deeply implicated in many domestic terrorism prosecutions, since the essence of those prosecutions is an act of association, often combined with speech. Finally, the judiciary's bare assertions that

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"material support" or financial contributions do not constitute association cannot be sustained given both first principles and well-developed law outside the context of terrorism. In short, in this area the courts have failed in their basic job of honestly engaging with the law.

Ultimately, however, I conclude here that there does exist a clear, textually and historically justifiable basis for limiting constitutional protections for terrorist and other violent groups. The principle derives from the textual roots of the freedom of association, which lies in the Assembly Clause of the First Amendment. The Assembly Clause, unlike the Free Speech Clause, explicitly protects only a right "peaceably to assemble," and so excludes violent groups. This simple principle, completely missed by the courts, serves to reconcile most terrorism prosecutions with the First Amendment. It cannot, of course, resolve all issues, especially when a prosecution is based primarily on speech, not association, but it does much of the work. There also remain some difficult and complicated issues of definition and implementation, on which I provide some thoughts. But the basic argument advanced here is quite simple: the freedom of association and assembly protects only peaceable association and assembly; and terrorists are not peaceable.

Introduction

More than a decade has now passed since the attacks of September 11, 2001, fully inaugurated the Age of Terror. In the early years after the attacks, aside from the immigration sweep that followed immediately, U.S. antiterrorism policy was focused primarily on threats from abroad, including, notably, the wars in Afghanistan and (at least purportedly) Iraq. While those events raised some fascinating issues about the scope of executive authority¹ and about the geographic reach of the Constitution,² it was relatively rare that the individual liberties provisions of the Bill of Rights were directly

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implicated.³ In subsequent years, however, the federal government initiated a series of judicial actions, including criminal prosecutions, directed at alleged terrorists and supporters of terrorism within the United States.⁴ These actions have in turn generated a large number of constitutional disputes regarding the consistency of these legal claims with the Bill of Rights, especially the speech and association rights protected by the First Amendment. To date, the Supreme Court has had only one occasion to address these issues: its 2010 decision in Holder v. Humanitarian Law Project.⁵ In Humanitarian Law Project, the Court rejected a First Amendment challenge to 18 U.S.C. § 2339B(a)(1), the so-called material-support statute, which bans the provision of material support to designated foreign terrorist organizations.⁶ The Humanitarian Law Project decision, however, did very little to clarify the law regarding the interaction between First Amendment rights and antiterrorism measures; indeed, the decision, if anything, increased the already high levels of confusion and uncertainty.

Despite the lack of guidance from above, the lower federal courts have, of course, necessarily confronted and resolved many First Amendment issues in the context of terrorism prosecutions. These cases and disputes are discussed in more detail in Part II of this Article, but the bottom line is clear: the First Amendment has been irrelevant. Lower courts have not only consistently rejected First Amendment defenses, they have generally dismissed them as insubstantial. A closer look at these cases demonstrates, however, that under current law, the First Amendment claims in these cases, especially those brought under the freedom of association, are in fact quite weighty. Courts have avoided them only by contorting doctrine and, in some cases, accepting arguments that are grossly inconsistent with First Amendment law in other factual contexts. In short, the War on Terror has forced the courts to twist the First Amendment into a pretzel.

In this Article, I aim to abate some of this confusion and to build a sustainable framework within which First Amendment challenges to antiterrorism measures can be evaluated. My focus is on freedom of association, though in the course of discussing association issues, I necessarily

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have to consider some related free speech issues as well—indeed, one of my main points is that speech and association issues are deeply entangled in these situations, and contrary to the way courts treat them, must be considered together.⁷ As I suggested earlier, my conclusion is that the associational claims raised in this area are far from insubstantial; indeed, under extant doctrine, many of them are probably valid. Nonetheless, I conclude that the courts have probably been correct to reject most (though by no means all) of the First Amendment challenges to antiterrorism prosecutions. The problem is that the courts are doing this for the wrong reasons, twisting doctrine to reach intellectually unsustainable conclusions. The downsides to this approach—other than rule-of-law concerns—are that first, it leads courts to reject even some legitimate claims; and second, it threatens to undermine First Amendment rights in other areas.

I conclude by arguing that instead of ignoring individual associational rights or narrowing their scope in indefensible ways, courts should focus their attention on what kinds of associations, what kinds of groups are protected by the First Amendment, and more particularly, whether certain kinds of organizations may be categorically excluded. The building blocks of such an approach can be found in the text and history of the First Amendment itself and in particular in the Assembly Clause of the First Amendment. The modern right of association, I demonstrate, is rooted in the Assembly Clause. Importantly, however, the Assembly Clause (unlike the Free Speech Clause) only protects the right "peaceably to assemble,"⁸ and so explicitly excludes violent groups. This fact, and the recognition that terrorist groups are, of course, not peaceable, serves to reconcile most terrorism prosecutions with the First Amendment without doing damage to either logic or legitimate rights. This Article develops these ideas more fully and demonstrates that such an approach can preserve important First Amendment principles without reaching absurd results, such as supporting a constitutional right to fund Al Qaeda.

In Part I of this Article, I discuss the Supreme Court's Humanitarian Law Project decision. Part II presents a series of case studies from the domestic War on Terror, illustrating how the lower courts have, and have not, confronted the First Amendment issues raised by them. Part III examines the grave uncertainties these cases reveal regarding the scope and application of

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First Amendment rights in the context of the War on Terror. Part IV articulates a new way forward, which seeks to identify limits on the sorts of groups entitled to constitutional protection based on the language and purposes of the First Amendment. Finally, Part V examines some of the difficult boundary problems raised by any proposal to categorically restrict the scope of First Amendment protections.

I. Holder v. Humanitarian Law Project Terrorism Trumps the First Amendment

As the discussion in the following section indicates, since the attacks of September 11, 2001, the federal courts have decided many cases, arising from a variety of contexts, touching upon the domestic War on Terror. The Supreme Court, however, has directly faced constitutional issues arising from domestic antiterrorism efforts in only one case: Holder v. Humanitarian Law Project.⁹ The Humanitarian Law Project decision therefore provides the starting point for all modern discussions of First Amendment constraints on antiterrorism prosecutions, and it is worthy of some sustained attention.

A. The Humanitarian Law Project Decision

The Supreme Court's decision in Holder v. Humanitarian Law Project arose out of a...