In deciding cases challenging the law forbidding support for terrorist organizations, the Supreme Court must consider that laws should provide clarity about which acts are illegal. -db
February 23, 2010
By John Farmer Jr.
Notwithstanding the finger-pointing (and judicial head-shaking) since the Supreme Court’s decision last month on corporate speech, that ruling may not be the most consequential of this term. The court is also considering several cases whose implications reach back centuries, to the most fundamental underpinnings of Anglo-American criminal and constitutional law.
Earlier this term, the court heard three challenges to the 1988 federal criminal statute outlawing “theft of honest services,” a tool widely used by the George W. Bush administration Justice Department to prosecute political and corporate corruption. Today, the court will hear a challenge to the so-called material support statute, passed in the wake of the first World Trade Center and Oklahoma City bombings and amended repeatedly after 9/11, that makes it a felony to provide “material support” to a terrorist organization.
Although the crimes that the statutes are intended to prohibit — corruption and terrorism — are very different, both laws resulted from Congress’s attempt to push the boundaries of criminality in order to control the harder-to-define aspects of deplorable conduct. Both statutes reflect the recognition that a prohibition based on a “bright line” standard, like the exchange of money for a political favor or for the purchase of terrorist weapons, would be too easily evaded by sophisticated politicians, businessmen or terrorists.
The appeal of such a broad approach is easy to see. Do we really want potentially corrupt politicians or violent terrorist sympathizers to be able to avoid prosecution by having a clear idea of what they can and cannot do?
Ah, but here’s the rub: under our system, at least as it is supposed to be, the answer is yes. The requirement that our criminal laws provide adequate notice of what conduct is prohibited predates our Constitution in English common law. William Blackstone, in his famous “Commentaries,” explained that “to know with precision what the laws of our country have forbidden … is a matter of universal concern.”
In 1926, the Supreme Court in Connally v. General Construction Company expressed the principle as a matter of constitutional due process, saying, “A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”
According to the challengers in the current cases, that is the problem with both the “honest services” and “material support” statutes. In trying to penalize conduct that falls outside a clearly definable standard, Congress has, in both instances, left a reasonable person uncertain about where the legal line can be drawn.
Take theft of honest services. What is it? If a state employee sitting on a bid committee votes to award a state contract to a political contributor of the governor, has she deprived the state of “honest services” because such a vote might benefit her career? A Wisconsin jury convicted a state worker, Georgia Thompson, on that theory in 2006 (her conviction was quickly reversed in federal court).
If a businessman makes a contribution to an issues campaign favored by a governor, and that governor later appoints him to a hospital board, is the governor guilty? An Alabama jury said yes in the case of Gov. Don Siegelman, also in 2006. (The Supreme Court is considering an appeal.)
What, one may ask, is the difference between those cases and routine political practices like a president appointing contributors to high office? The legal distinction exists at a moral vanishing point. As Justice Antonin Scalia has written, “without some coherent limiting principle to define what ‘the intangible right of honest services’ is,” the honest services statute “invites abuse by headline-grabbing prosecutors in pursuit of local officials, state legislators and corporate C.E.O.’s who engage in any manner of unappealing or unethical conduct.”
Terrorism is a more difficult issue, if only because the consequences of a terrorist attack are more severe than those of corruption. Shouldn’t those consequences permit legislators to be expansive in defense of our public safety? We cannot afford to wait, or to be wrong. The government’s argument seems strong that a broadly drawn ban on any form of material support of terrorist organizations is necessary.
On the other hand, what is “material” support? If a lawyer advises a Kurdish group that is on the State Department’s list of terrorist organizations on how to present human rights violations to the United Nations, has he provided material support that is criminal? That is exactly what the government has claimed in the case that will be heard on Tuesday, Holder v. Humanitarian Law Project. Even as a former prosecutor, I feel that such a grasp exceeds the statute’s proper reach.
Recourse to the federal criminal courts as the first and best defense against acts of domestic terrorism is often described as a vindication of the rule of law. Few ask, however, what effect the pressure to use our criminal justice system to combat conduct that is both inchoate and hard to define may have on the foundations of the rule of law itself. Will we become socially — and constitutionally — conditioned to accept broadly defined offenses, an eroded presumption of innocence and lower degrees of criminal intent in other contexts?
The Supreme Court would serve the nation by giving a narrow and clear interpretation of the material support statute, and by telling Congress to start over on the honest services law. The larger point, however, is that in its zeal to criminalize the harder-to-define aspects of deplorable practices like corruption and support for terrorism, Congress must avoid undermining the premise of our rule of law: that our laws define clearly the conduct they make criminal.
John Farmer Jr., a former attorney general of New Jersey and counsel for the 9/11 commission, is the dean of the Rutgers School of Law at Newark and the author of “The Ground Truth.”
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