Attorneys and the activists who were subpoenaed by a federal grand jury after the FBI raids in late September have pointed out that they "fear that the government may be seeking to use the recent Supreme Court decision in Holder v. Humanitarian Law Project to attack conduct that clearly falls under the realm of freedom of speech and that we never imagined could be construed as ‘material support for terrorism.’" ("Grand Juries," by Committee to Stop FBI Repression.)
In order to understand this point, it is first necessary to understand that the U.S. Secretary of State has the authority to designate any group as a "foreign terrorist organization," or FTO. This authority has been used in a highly selective way. According to David Cole, a civil rights attorney who argued before the Supreme Court for the Humanitarian Law Project, groups and individuals can be blacklisted as a FTO if the Secretary of State "finds that the group’s activities undermine our ‘national defense, foreign relations, or economic interests.’ There is essentially no viable process to challenge this designation." (Cole, Less Safe, Less Free, p. 55) The government can designate a group as "terrorist" based on its say-so, just like it did with the people it seized and held in Guantánamo.
Nancy Chang writes in her book Silencing Political Dissent that if the FTO statute had been on the books in the 1970s and ’80s, then Mandela’s African National Congress could have been put on the FTO list during the anti-apartheid struggle.
There are currently many Palestinian groups on the list and no Israeli groups.
Once the Secretary of State designates a group an FTO, it becomes a crime punishable by 15 years in prison to "knowingly provide material support or resources" to the group. Since the USA Patriot Act, the concept of "material support" has been expanded greatly. According to David Cole, "It is a crime to provide ‘material support’ to listed groups, not only in the form of money or weapons, but also in the form of speech; the law specifically prohibits anyone from providing them with ‘expert advice,’ ‘training,’ and ‘services.’ According to the Obama administration the law prohibits even speech that seeks to discourage violence by encouraging lawful alternatives." (Cole, "The Roberts Court vs. Free Speech," The New York Review of Books, August 19, 2010.)
The USA Patriot Act explicitly made it a crime to donate educational and humanitarian aid to FTO-designated organizations. Exceptions were supposedly made for medicines and, of course, for religious materials. Raising money for the lawful activities of any group on the FTO list—clinics, schools, orphanages, flood or tsunami relief—or even teaching about how to raise money for these purposes, which had always been legal, now became illegal.
Last June, the U.S. Supreme Court went even further when it decided Holder v. Humanitarian Law Project. The case came about after a retired judge, a medical doctor, a human rights organization, and several non-profit groups wanted to teach and advocate the use of international law and other non-violent means to reduce conflict and advance human rights to certain FTOs. For example, Humanitarian Law Project wanted to provide this kind of assistance to an organization that the government had labeled terrorist—specifically, the Kurdistan Worker’s Party. But if they did, they would risk prosecution under that statute due to this expanded definition of "material support." Multiple lower courts had previously issued injunctions declaring that the statute was unconstitutional as applied to the Humanitarian Law Project.
The Obama Justice Department appealed this case up to the Supreme Court, whose decision sided with the U.S. government and against the Humanitarian Law Project. The Supreme Court majority said that it didn’t matter that the purpose of the Law Project was to promote non-violent resolution to the conflict and ruled the Law Project and the others’ efforts would be illegal if undertaken, claiming that such efforts would be "coordinated" with the groups designated as FTOs.
As an indication of how much the government has stretched the definition of "material support" to terrorism, even former President Jimmy Carter criticized the Holder decision, arguing that "The ‘material support law’—which is aimed at putting an end to terrorism—actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence." The way the Supreme Court interpreted the law left Carter wondering if he could be prosecuted for his work monitoring elections in Lebanon, since one of the parties in the elections was a group designated as a FTO.
The ACLU filed a brief for the Carter Center, siding with the Humanitarian Law Project. Important institutions joined this brief: Christian Peacemaker Teams, Grassroots International, Human Rights Watch, International Crisis Group, the Kroc Institute for International Peace Studies at Notre Dame University, Operation USA, and others.