First Take

PrintPrint CiteCite
Style: MLAAPAChicago Close


A Boost for Counterterrorism Powers

Author: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy
June 22, 2010

A Boost for Counterterrorism Powers - a-boost-for-counterterrorism-powers


In Holder v. Humanitarian Law Project, the Supreme Court on June 21 held (PDF) that it does not violate the Constitution for the government to prohibit forms of advocacy and advice for a designated foreign terrorist organization, even if the aim is to support the group's peaceful or humanitarian actions. The case involved a federal law banning "material support" to listed foreign terrorist organizations, and it pitted the government's interests in blocking assistance to terrorist groups against First Amendment values.

Viewed in the broader context of post-9/11 government powers, this case is yet more indication not only that liberty-security balances have shifted but that the Obama administration is not likely to shift them back.

First, although the most intense legal controversy has generally surrounded the government's post-9/11 treatment of counterterrorism as "war" (such as detention without trial of "enemy combatants" or the use of drone attacks), this case highlights some of the ways in which the government has also relied on expansive criminal law enforcement powers.

After 9/11, Congress broadened the material support laws to prohibit more categories of activities. The result, the government argues, is a potent, preventive law enforcement tool that can be used to go after terrorists without having to tie them to specific plots and to choke off the financing that sustains terrorist groups' activities.

Second, this decision illustrates the Supreme Court's general tendency to defer to the government's judgments on national security matters, especially when Congress has backed the executive's actions. In recent years, the Supreme Court had dealt the executive branch some blows, including its ruling in 2008 that even despite congressional legislation to the contrary, detainees at Guantanamo have habeas corpus rights to challenge their detention in court. In this case, however, the Supreme Court made clear its reluctance to second-guess combined judgments of both Congress and the executive on national security matters.

This was the Obama administration's second recent court victory in a major anti-terrorism case. Earlier this month, a federal appeals court agreed with its argument that detainees captured abroad and held in Afghanistan have no habeas corpus rights like Guantanamo detainees do. With Congress unwilling to appear weak on terrorism and courts not pushing back much on the legal powers used by the Obama administration, don't expect the president to voluntarily further roll back the powers he inherited.

More on This Topic


What Happens After Guantánamo?

Christian Science Monitor

Marisa L. Porges argues that detainee rehabilitation and transparency should be the focus at Guantánamo Bay prison.