Monday, June 21, 2010

Today's Court Decision on The Material Support Statute: Deference to Executive-Legislative Consensus on Terrorism Policies

Rick Pildes

In post 9/11 debates about terrorism law and policy, many constitutional scholars, myself included, argued that the inevitably difficult policy and legal choices involved would be put on the surest constitutional footing if Congress and the Executive Branch jointly reached consensus on the content of those policies. Unfortunately, on many major policy choices after 9/11, the Executive Branch did not seek congressional involvement and Congress showed no inclination on its own to act. Today's decision in Holder v. Humanitarian Law Project, however, involves one area in which Congress and the Executive Branch worked together, over many years, to create a legal regime that makes it a crime to "knowingly provid[e] material support or resources to a foreign terrorist organization," and that fills in the definitional details. And the 6-3 decision powerfully confirms that the Court, as it has throughout its history, will give a good deal of weight to factual findings and informed judgments of the other two branches, when they act in concert.

This deference theme is, indeed, the central one that runs throughout the Court's analysis of the specific statutory terms and First Amendment issues. And it has implications for all other terrorism policies issues, including issues Congress has not confronted in all these years, such as how to structure the ongoing detention regime that currently exists at GTMO, or potential issues that might be looming, such as how the Court might respond were Congress to define the boundaries of the "public safety" exception to Miranda.

" At bottom, plaintiffs simply disagree with the consid­ered judgment of Congress and the Executive that provid­ing material support to a designated foreign terrorist organization—even seemingly benign support—bolsters the terrorist activities of that organization. That judg­ment, however, is entitled to significant weight, and we have persuasive evidence before us to sustain it. Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that, to serve the Gov­ernment’s interest in preventing terrorism, it was neces­sary to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends."

My claim here is a descriptive one: over the course of constitutional history, the Court has been most accepting of national security policies that arguably touch about constitutional rights when those policies reflect sustained support and factfinding consensus among the political branches. Of course, the Court will not blindly defer, especially in the modern era, as cases like Boumediene indicate. And there will often be complaints, as in today's dissent, that the Court has been too accepting of legislative-executive policies. But the fact remains that, descriptively at least, the Court has tended to gravitate toward being most accepting of national-security policies that have come with the imprimatur of joint legislative-executive approval, as in today's decision.

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