Terror advice decision causes uproar in United States, but could it happen here?

22 June 2010 by

Holder v. Humanitarian Law Project, United States Supreme Court – Read judgment

The US Supreme Court has ruled that it does not violate the US 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.

The judgment does not, of course, have any direct effect on the UK. But UK anti-terrorism legislation already provides the police with broad powers to prosecute those who support terrorist groups. The UK Government is likely to be keeping a close eye on the United States in order to guide future policy, in terms of what is and what is not beyond the pale in restriction freedom of expression.

The decision has inspired strong reaction in the US. In an editorial, the New York Times said… the ideals of an earlier time were eroded and free speech lost. By preserving an extremely vague prohibition on aiding and associating with terrorist groups, the court reduced the First Amendment rights of American citizens.” The Washington Post have saidWhat was less clear was how far the law could reach to punish activities with no link to terrorism. The court’s answer: Very far. In our opinion, it is the court that went too far.

Three out of the nine justices dissented (see from after page 36 of the leading judgment). Chief Justice John Roberts, who gave the leading judgment, held that:

The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to “provide for the common defence.” As Madison explained, “[s]ecurity against for­ eign danger is . . . an avowed and essential object of the American Union.” …. We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terror­ ist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.

Significant qualifier

The US Supreme Court Blog (Scotus Blog) has provided a good analysis of the judgment and its likely impact on rights to free speech. One important point was the qualifier added by the court that “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.” The post continues:

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…

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.

Coming to the UK?

Similar powers already exist in the UK. Section 12 of the Terrorism Act 2000 provides a fairly wide-ranging prohibition on supporting terrorist organisations. This includes offences if a person “invites support for a proscribed organisation” including if he “arranges, manages or assists in arranging or managing a meeting” which is to support or “further the activities” of that organisation. Section 15 makes it an offence to provide money or property to support a proscribed organisation, or invite another to do so.

There is no direct UK equivalent to the Holder case, but the courts have on a number of recent occasions ruled on issues relating to people and organisations who directly aid or may assist terrorist groups. The balancing act undertaken between the security needs of the State and the fundamental freedoms of individuals is a familiar one to the UK, and has informed much of the debate on anti-terrorism legislation in the past 10 years (see our previous posts on terrorism.)

For example, in the recent Bank Mellat case (see our post), the High Court upheld restrictions imposed Iranian bank alleged to have supported Iran’s nuclear program, which directed  anyone in the UK financial sector must not enter into or continue to participate in business with the bank.

In another recent case, the European Court of Human Rights ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network (see our post).

The Holder decision does not have any direct effect in the UK. However, it is likely that the UK Courts as well as the Government will be looking to the United States and its most eminent court for guidance as to how to handle similar issues if they arise here in the future. Given the number of recent UK decisions involving anti-terrorism law running foul of human rights, it seems likely that the courts may have  to examine similar issues soon enough. Freedom of expression enjoys stronger protection in the United States than it does here, so the signs may be ominous.

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