cert granted in challenge to the 1996 material support statute (and in two other cases highlighted earlier this week)

* Supreme Court grants cert in several of the cases noted in the round-up post from earlier this week

Earlier this week I posted a list of pending (or soon-to-be pending) cert petitions that related in varying ways to national security.  The Court today has announced its decision on a few of these petitions, granting cert in three of them:

First, the Court granted both the petition and the cross petition in Holder v. Humanitarian Law Project, which puts in issue the constitutionality of including terms like service, training, expert advice or assistance, scientific or technical knowledge, and personnel in the definition of “material support or resources.”  This is, in my judgment, an extraordinarily important case.  The material support statute is an important tool in the DOJ counterterrorism arsenal (it presumably would play a major role in enabling DOJ to bring prosecutions against GTMO detainees, for example).  And some of these terms—particularly the “personnel” term—are especially important in terms of providing basis for prosecution other than conspiracy in circumstances in which the defendant can be linked to a terrorist organization but not to a particular plot.  The case has not yet received much attention.  Hopefully that will change.  (Shameless self-promotion: if you want to better understand the origins of the 1996 statute and the various debates surrounding its constitutionality, you might try this article.  If you want data on how charges under this statute typically work out, try this one.).

Second, the Court also granted cert in both Samantar v. Yousuf (FSIA immunity for foreign government officials) and United States v. O’Brien (whether conditions for a sentence enhancement must be tried to the jury).

The materials for these three cases in the original post appear below.  No word yet on the cert status of the other cases mentioned in that post.

Docket: 08-149809-89
Title: Holder, Attorney General v. Humanitarian Law Project Humanitarian Law Project v. Holder

Issue: Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of “any *** service, *** training, [or] expert advice or assistance,” to a designated foreign terrorist organization, is unconstitutionally vague; Whether the criminal prohibitions in 18 U.S.C. § 2339B(a)(1) on the provision of “expert advice or assistance” “derived from scientific [or] technical … knowledge” and “personnel” are unconstitutional with respect to speech that furthers only lawful, nonviolent activities of proscribed organizations.



Docket: 08-1555
Title: Samantar v. Bashe Abdi Yousuf, et al.
. Whether a foreign state’s immunity from suit under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1604, extends to an individual acting in his official capacity on behalf of a foreign state and whether an individual who is no longer an official of a foreign state at the time suit is filed retains immunity for acts taken in the individual’s former capacity as an official acting on behalf of a foreign state.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.  [n.b., I included this one because it seemed to me that might have some bearing on the important but not widely-observed issue of how the terrorism sentencing enhancement is applied]

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