Washington (CNN) - The Supreme Court appeared genuinely torn Tuesday over whether the government's power to criminalize "support" of a terrorist organization goes too far in restricting civil liberties.
The justices reviewed a key provision of the 2001 Patriot Act, and the question of whether it threatens the free-speech rights of Americans who would assist non-violent activities of certain militant groups.
"This is a difficult case for me," said Justice Anthony Kennedy, who could emerge as the key swing vote in the appeal's outcome.
At issue is whether the federal law allows prosecution of those with knowledge of "any service, training, expert advice or assistance" to a foreign terrorist organization, as designated by the U.S. government.
"Are we supposed to allow our citizens to assist the terrorist organizations that are directing their violence against" the United States and its allies, asked Justice Antonin Scalia. "Why isn't that a sufficiently
serious reason for the government to do what it's done here?"
But Justice Ruth Bader Ginsburg countered, "I don't understand the line between meeting with these terrorist organizations ... and instructing them on how they can pursue their goals through lawful means."
Since the September 11, 2001, terrorist attacks against the United States, federal prosecutors have pursued "material support" cases against at least 125 individuals or organizations, winning convictions in about half of those cases. Nearly every domestic terrorism-related prosecution has included the charge as part of the indictment.
Groups listed as "foreign terrorist organizations" by the State Department include al Qaeda, Hamas and Hezbollah.
A federal appeals court in San Francisco, California, struck down several parts of the legislation, finding them too vague to satisfy the Constitution. The government then asked the high court to intervene and uphold the law.
The key plaintiff in the appeal is the Humanitarian Law Project, a Los Angeles, California-based non-profit that says its mission is to advocate "for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law."
It sought interaction with the Kurdistan Workers' Party, a group active in Turkey. Known as PKK, the party has been labeled a terror organization by the United States and the European Union. Its leaders have called for militancy to create a separate Kurdish state in the parts of Turkey, Iraq, Syria and Iran where Kurds are a majority.
In its appeal to the high court, the government noted that "since its inception, the organization has waged a violent insurgency that has claimed over 22,000 lives."
Humanitarian Law Project claimed it wanted to advocate on behalf of the PKK before the U.N. Commission on Human Rights, and conduct other advisory sessions and public awareness campaigns.
During the one-hour oral arguments, both conservative and liberal justices sharply questioned lawyers on both sides, indicating many are uncomfortable with the scope and application of the law. The justices offered a number of hypotheticals, testing the boundaries of when the law could be fairly applied.
"Could the government forbid any ... organization or person from giving tsunami aid to one of these organizations, from giving them money?" asked Kennedy.
What about providing assistance for the Nazi Party to build hospitals, asked Chief Justice John Roberts.
Can travel to Cuba be banned, if it would mean legitimizing that Communist regime, Justice Sonia Sotomayor said.
David Cole, attorney for Humanitarian Law Project, said it sees the issue as one of protecting "core political speech on issues of public concern, advocating only lawful, peaceable activities."
But Solicitor General Elena Kagan, arguing for the Obama administration, defended the law as constitutional.
"Hezbollah builds bombs," she said of the Palestinian militancy group.
"Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, you are also helping Hezbollah build bombs. That's the entire theory behind this statute, and it's a reasonable theory."
Justice Stephen Breyer spoke up. "Petitioning the United Nations - and that's what you are teaching them," he said of the Law Project's efforts, "does not, on its face, seem to me to be something that reasonably you would think was going to aid them in their unlawful objectives, but for the realm of ideas."
Kagan countered the statute regulates "conduct, not speech, and does not violate the First Amendment in any of its applications."
"How can you argue that training and providing advice is not speech?" conservative Justice Samuel Alito told Kagan, expressing concern the law is not specific enough on what activities it prohibits. "If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a 'service' to the organization" under the government's reading.
Some justices wondered whether representing a terror defendant in court or filing an appeal on his behalf would put an American lawyer in legal trouble.
Under the government's theory, Justice John Paul Stevens told Kagan, "It says to me that your opponent's argument here today [in court] is prohibited."
Kagan responded the Law Project was arguing for itself, not the overseas groups its seeks to continue a dialogue with, and thus was permissible.
"Money is fungible for terrorist groups," said Sotomayor. Noting that money given for "legitimate means" can be "siphoned off and used for illegitimate means," she asked what is wrong with saying, "You can't teach
these groups how to get money?"
Ralph Fertig, a 79-year-old civil rights lawyer who who founded Humanitarian Law Project 25 years ago, told CNN he feared being arrested if he continued his international outreach efforts with groups designated as
"My mission would be to work with these groups, to try and convince them to use peaceful means to resolve these ongoing conflicts," he said after the arguments. He filed the lawsuit against the government.
The Patriot Act was passed six weeks after the 9/11 terrorism attacks. It included amending a previous anti-terror law to strengthen the "expert advice and assistance" provision, making it a crime punishable by a
10-15 year prison sentence.
The case is Holder v. Humanitarian Law Project (08-1498). A ruling is expected by spring.