Cross-posted from The Terror Finance Blog

On June 21, 2010, the US Supreme Court handed down its decision in Holder v. Humanitarian Law Project, which reaffirmed the constitutionality of a key counter-terrorist statute that prohibits providing material support to foreign terrorist organizations. In this case, plaintiffs asserted that the statute in question, 18 U.S.C. § 2339A, unlawfully prevented them from providing material support to the Liberation Tigers of Tamil Eelam (LTTE) and Kurdistan Workers' Party (currently known as Kongra-Gel or PKK), both of which remain on the State Department's Foreign Terrorist Organizations list.

As reported in the Wall Street Journal, "Prosecutors favor the material-support charge because it is broad enough to cover a range of activities linked to terrorist organizations, from collecting funds to shouldering a rifle." In this case, those activities seem to include lawfare, which is the use of the law as a weapon of war, or more specifically, the abuse of the law and legal systems for strategic political or military ends. In its published Opinion, the Court twice cited a lower court ruling which specified that, "Plaintiffs want to "train members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes," and "teach PKK members how to petition various representative bodies such as the United Nations for relief." 552 F. 3d, at 921, n. 1."

In fact, the majority opinion by Chief Justice Roberts obliquely cited two common uses of lawfare, albeit without using the term itself. First, he stated that, "[i]t is wholly foreseeable that the PKK could use the "specific skill[s]" that plaintiffs propose to impart, §2339A(b)(2), as part of a broader strategy to promote terrorism." As Hezbollah's recent declaration to sue Israeli officials demonstrates, this type of abuse is not only foreseeable, but lawfare is being implemented in precisely this fashion.

Perhaps even more notably, the Chief Justice also hit upon a second area in which providing legal expertise can lead to lawfare. "A foreign terrorist organization introduced to the structures of the international legal system might use the information to threaten, manipulate, and disrupt. This possibility is real, not remote." With all due respect to the Chief Justice, it is even more than a real possibility – it is a reality.