Posted by on October 31, 2012 in Blog

While hurricane Sandy had the rest of the government shut down, the Supreme Court went to work this week. Monday and Tuesday’s sessions brought both good and bad news from the court. The good news is that the oral arguments in Clapper v. Amnesty International appear to have gone better than expected for the challengers, as the justices indicated some genuine concern about the warrantless wiretapping powers under FISA. The bad news is that the Supreme Court denied the final appeal of the verdict in the Holy Land Foundation’s infamous terrorism financing case.

Court Hears Oral Arguments for Clapper v. Amnesty International

The Supreme Court showed on Monday heard oral arguments for the case Clapper v. Amnesty International. The Justices showed through their responses to the arguments that many of them are troubled by the possible burdens placed on lawyers and activists based on the reasonable fear that their communications could be surveilled by the federal government. Justices Elena Kagan and Ruth Bader-Ginsberg were the most energetic challengers to Solicitor General Donald Verrilli’s arguments in defense of FISA’s surveillance powers. Both Justices seemed concerned by the fact that ruling in favor of the government in this case could make it impossible for warrantless wiretapping to be challenged in court. When Verrilli argued that the plaintiffs were trying to “invalidate a vital national security program,” Kagan responded by pointing out that the case is over standing. This means this case is not about the merits of their claims against the warrantless wiretapping program, but whether the challengers have standing for their case to be even heard in court at all.

Verrilli, however, scored points with the conservative justices when he argued that the existing Foreign Intelligence Surveillance Court already serves as a sufficient check on abuse of wiretapping powers. Justices Scalia, Roberts, and Alito all seemed to agree that trust can be placed in this court, which operates entirely in secret, to protect against constitutional violations.

As is often the case, at the end of oral arguments there appeared to be a 4-4 split between Justices, with Justice Anthony Kennedy as the unpredictable swing vote. While Kennedy seemed to show reservations about the court wading into a sensitive issue of national security, he also expressed a great deal of concern about the implications for lawyers’ ethics in this case. Kennedy actually went further than the challengers’ argument to suggest that lawyers representing overseas clients or defendants in terrorism cases could actually be committing malpractice if they did not undergo the costly precautions to protect their communication from surveillance that the plaintiffs described.

Thus, Amnesty v. Clapper is likely to be decided either way by a 5-4 vote. The fact that the Justices grasped the weighty implications of this case is an encouraging sign.

Holy Land Foundation Denied Supreme Court Appeal

The Supreme Court on Monday denied without explanation the petition for an appeal of five Holy Land Foundation (HLF) organizers who were convicted on charges of conspiring to send money to Hamas. Prior to 9-11, The Holy Land Foundation was the largest Muslim charity in the United States. The so called “Holy Land Five” were convicted in 2008 under the Material Support to Terrorism Act, which, among other things, criminalized charitable donations to besieged Gaza. The five leaders of the Holy Land Foundation received sentences ranging from 15 to 65 years in prison.

The Holy Land Five were never accused of supporting violence. They were instead charged with funding charities that were accused of providing “material support to terrorism.” Many donations were made through the same zakat charities that the U.S. government has supported via USAID. Edward Abington, a diplomat who served as U.S. consul-general in Jerusalem during the 1990s, testified that the U.S. Agency for International Development (USAID) had given $47,000 to the same charitable committee alleged in the HLF indictment to have ties to Hamas. “Moreover, USAID has periodically contributed to the same Zakat Committee named in the indictments, from before the time of the HLF indictment until today,” he testified, adding, “This double standard is circuitous because it implies that either USAID is using taxpayer money to ‘finance Hamas’ or that the allegations made against the HLF were baseless from the beginning.”

The case of the “Holy Land Five” was first declared a mistrial in 2007, but federal prosecutors were able to obtain convictions the following year. They were able to do so with the use of an anonymous expert witness – an Israeli intelligence officer who testified under the fake name “Avi.” This was the first time in our nation’s history that the use of anonymous expert witnesses and “secret evidence” has been allowed. Attorney Michael Ratner says that Avi's testimony violated the defendant’s sixth amendment right to face their accuser. In refusing an appeal, the Supreme Court granted its tacit approval of using secret evidence and anonymous witnesses to secure convictions in terrorism-related cases.

The Supreme Court’s decision to deny an appeal for the Holy Land Five is a tragic mistake. Besides the obvious injustices suffered by those currently behind bars in the HLF case, the Supreme Court has missed an opportunity to take on the rampant violations of due process in post-9/11 terrorism cases. The Material Support for Terrorism Act has been used to roll back free speech rights and has been selectively applied to an egregious extent. The avenues for the Holy Land Five to be exonerated are now extremely limited, and with each decision like this from the Court, the chances to stop the erosion of our civil liberties become more limited as well.

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