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Opinion of the Court

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SUPREME COURT OF THE UNITED STATES

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,

v.

HUMANITARIAN LAW PROJECT, ET AL.

[December 14, 2009]

JUSTICE HILL delivered the opinion of the Court.

This case concerns the Antiterrorism and Effective

Death Penalty Act (AEDPA) of 1996, which grants the
Secretary of State discretion to designate foreign terrorist
organizations as such. Both the Kurdistan Workers Party
(PKK) and the Liberation Tigers of Tamil Eelam (LTTE)
were designated so the year AEDPA passed. U.S.C.
2339B(a)(1) of AEDPA makes illegal the provision of
material-support to designated foreign terrorist
organizations. Material-support, as defined by 18 U.S.C.
2339A(b)(1), includes:

any property, tangible or intangible, or service, in-

cluding currency or monetary instruments or finan-
cial securities, financial services, lodging, training,
expert advice or assistance, safehouses, false docu-
mentation or identification, communications equip-
merit, facilities, weapons, lethal substances, explo-
sives, personnel (1 or more individuals who may be
or include onself), and transportation, except medi-
cine or religious materials. (Emphasis added)
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Opinion of the Court

Humanitarian Law Project, et al., prior to AEDPA’s

passage, provided material-support to what it contends are
non-violent, law-abiding wings of said organizations.
Respondents brought their case(s), post-passage, premised
on the contention that material-support, as defined, is
unconstitutionally vague, to District Court, seeking an
injunction.

The United States District Court ordered a preliminary

injunction barring the enforcement of U.S.C. 2339B(a)(1),
citing the terms “training” and “personnel,” both of which
comprise material-support, as unconstitutionally vague.
The Government appealed the order to the Court of Appeals,
and that court affirmed. A second action was brought
against the Government, on grounds that the term “expert
advice or assistance,” also located in U.S.S. 2339B(a)(1), is
unconstitutionally vague. It too came before the Court of
Appeals.

During both sets of appeals, Congress passed the

Intelligence Reform and Terrorism Prevention Act (IRTPA)
of 2004. This Act clarified the definitions of two terms in
question. “Training” no longer relied on its general
definition, instead becoming statutorily defined: "instruction
or teaching designed to impart a specific skill, as opposed to
general knowledge." 18 U.S.C. 2339A(b)(2). “Expert advice
or assistance,” too, became clarified: “advice or assistance
derived from scientific, technical, or other specialized
knowledge.” 18 U.S.C. 2339A(b)(3). In light of clarification,
both Courts of Appeals remanded the cases to the lower
courts.

Both cases, post-remand, were consolidated before the

District Court, where Respondents claimed the terms
“training,” “personnel,” “expert advice or assistance,” and
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“service” are unconstitutionally vague. The District Court

agreed, save the term “personnel,” and the United States
Court of Appeals for the Ninth Circuit affirmed, ordering an
injunction, declaring the terms in question
unconstitutionally vague. We grant the Government’s
petition for certiorari and vacate the judgment of the Court
of Appeals.

We think the Court of Appeals erred in its decision.

The Court of Appeals’ holding rests on an erroneous
contention: that the terms in question are vague. These
terms include “training,” “expert advice and assistance,” and
“service.” Not one of these terms is vague, the general1 and
statutory2 definitions of each are clear. A person of ordinary
intelligence would be able to understand the meaning of
each, satisfying the Fifth Amendment Due Process
requirement. The vagueness doctrine is, in other words,
inapplicable.

The IRTPA defined the term “training” to include only

“instruction or teaching designed to impart a specific skill,
as opposed to general knowledge.” 18 U.S.C. 2339A(b)(2).
This definition, so claims the Court of Appeals, is vague
because it requires individuals to draw impossible
distinctions between prohibited instruction in a “specific
skill” and permissible instruction in “general knowledge.”
Respondents are forced to guess whether human rights
advocacy, a form of training, is a “specific skill” or relies on
“general knowledge.” The fact is, Respondents (like the
average person) are able to distinguish between common

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 Webster’s Third New International Dictionary defines each term in question with certain lucidity.
Terms defined in this publication are what we shall refer to as “general definitions.”
2 The IRTPA clarifies the meaning of each word. Terms defined within this Act are what we shall

refer to as “statutory definition.”!

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Opinion of the Court

knowledge and knowledge that is so specialized that it is

foreign to the experiences of most people.
Respondents introduce a hypothetical: Under the
Government’s definition, teaching geography would be
permissible because it constitutes “general knowledge,” but
teaching the political geography of terrorist organizations
would constitute a banned “specific skill,” as would the
teaching of English. Such a focused transfer of information
might be construed as imparting a “specific skill.” How is
the layman to know the difference? This argument is duly
noted, but holds little merit. Persons of ordinary
intelligence can distinguish between what is commonly or
generally known and what is a skill possessed by relative
few. Whether or not vague in hypothetical situations,
Respondents’ conduct falls under the definition of training
in both the statutory and general definition. Whether said
term is vague in other contexts is irrelevant.
More broadly, respondents’ arguments indicate only
that under this statute, as under any statute, "imagination
can conjure up hypothetical cases" in which there is
uncertainty. American Commc’ns Ass’n v. Douds, 339 U.S.
382, 412 (1950). Respondents fail to show that the statute
does not give a person of ordinary intelligence a reasonable
opportunity to know what is prohibited." Grayned v. City of
Rockford, 408 U.S. 104, 108 (1972).

The term “expert advice or assistance” fulfills the 5th

Amendment Due Process requirement that a person of
ordinary intelligence be able to understand the term’s
meaning. The Court of Appeals held that “expert advice or
assistance”, clarified by the IRTPA as “imparting scientific,
technical, or other specialized knowledge” is vague and that
“scientific, technical, or other specialized knowledge” fails to
clarify the term “expert advice or assistance.” The Court of
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Appeals concluded that while “scientific” and “technical”

knowledge is lucid, “other specialized knowledge” is not. To
argue that point, under the principle of ejusdem generis,
“other specialized knowledge” takes its meaning from the
surrounding terms “scientific” and “technical.”

A person with no legal background, contends the Court

of Appeals, would find the term in question unintelligible.
Moreover, all general knowledge, contends the Court of
Appeals, was once specialized knowledge and this in some
sense is derived from such knowledge. In rebuttal,
Petitioner contends (and this Court agrees) that the statute
applies to advice derived from what is currently specialized
knowledge – not to what is now general knowledge but was
once specialized knowledge at some point in the past.

The Court of Appeals held that “service” is vague

because each of the other challenged provisions could be
construed as a provision of service. The term service, says
the Court of Appeals, presumably includes providing
members of the PKK and LTTE with “expert advice or
assistance” on how to lobby or petition representative bodies
such as the United Nations. “Service” would also include
training members of the PKK or LTTE on how to use
humanitarian and international law to resolve ongoing
disputes. “Service” is clear in any related capacity, as
determined by 387 F3d 144 United Sates v. Homa
International Trading Corporation, it was determined that
the term “service,” as used in a statute prohibiting the
export of “services” to Iran, is “unambiguous.” This term
may be understood by a person of ordinary intelligence and,
like the two previous terms, is not unconstitutionally vague.
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II

This Court holds the vagueness doctrine inapplicable to

the terms (and statute) in question. “Training,” “expert
advice or assistance,” and “service” may be understood by a
person of ordinary intelligence, satisfying the 5th
Amendment Due Process requirement. By looking to the
plain words that compose the statutory and general
definitions, there is no denying the modest, if not crystal,
clarity of each term. The foundation of this Court’s rejection
of Respondent’s contention is in concert with that of
Petitioner. Petitioner contends that the Court of Appeals
conflated the vagueness and overbreadth doctrines; that a
statute’s broad application demonstrates breadth, not
vagueness. In suggesting that “training,” “expert advice and
assistance,” and “service” are vague because each might be
construed to prohibit First Amendment freedoms, the Court
of Appeals reveals its fundamentally flawed (though
perhaps forgivable) thinking. It has applied the overbreadth
doctrine, but termed it the vagueness doctrine.

According to the overbreadth doctrine, a statute that

affects First Amendment rights is unconstitutional if it
prohibits more protected speech than is necessary to achieve
an important government interest.

According to the vagueness doctrine, a crime defined so

vague that a person of ordinary intelligence could not
determine what elements constitute the crime, qualifies it as
such. Such a vague statute is unconstitutional on the basis
that a defendant could not defend himself or herself against
a charge of a crime, which he or she could not understand,
and thus would be denied due process required by the 5th
Amendment.
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If a statute is overbroad, it restricts protected rights,

where a statute deemed vague is simply unintelligible. The
two are clearly distinct.

As we determined, none of the three terms in question

is vague. The statutory and general definition of each may
be understood by a person of ordinary intelligence. The
terms in question may, however, be overbroad. The Court of
Appeals held that any of the three terms could be construed
to prohibit First Amendment freedoms. For instance, the
Court of Appeals reasoned training is vague because it could
be read to encompass speech and advocacy protected by the
First Amendment. This brings us to the second question
that demands judgment. Are the terms in question
overbroad? The Court of Appeals, in its holding, declared
the statute as just broad enough. Petitioner, however,
contends the contrary. We find it necessary to address this
claim, insofar as to buttress our central holding.

Respondents contend the statute in question is

overbroad because it regulates speech. We do not consider
this so. The statute in question regulates conduct,
specifically the provision of material-support to designated
foreign terrorist organizations. Speech is regulated only
incidentally. Given this fact, we subject this statute to
intermediate scrutiny under the four-pronged test set out in
United States v. O’Brian.

The O’Brian test requires: 1) that the regulation be

within the government’s power; 2) that the regulation
promote an important interest; 3) that the interest be
unrelated to restricting free expression; and 4) that the
regulation restrict First Amendment rights no more than
necessary. U.S.C 2339B(a)(1) satisfies each requirement. 1)
The regulation is within the government’s power, it is the
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federal government’s prerogative to regulate the dealings of

its citizens with foreign entities; 2) the regulate does
promote an important interest, specifically the prevention of
global terrorism; 3) the interest is unrelated to restricting
free expression, it is related to stopping terrorism; and 4)
the regulation restricts First Amendment rights no more
than necessary, it is narrowly tailored given the deference
due Congress in foreign affairs.

The regulation in question satisfies the O’Brian test.

This in mind, we assert that the terms in question are just
broad enough, not overbroad (and certainly not vague).

III

Not as weighty as each aforementioned contention, but

important nonetheless, are several pertinent facts. These
facts weigh on our decision. Firstly, the political branches
(i.e. Congress and the President) are due deference in
foreign affairs. Both branches are aware of the dangers that
threaten the United States of America that the Supreme
Court of the United States, and all lower courts, are not.
The CIA, wise to the threat of foreign terrorist organizations,
does not debrief the courts, but does debrief Congress. This
in mind, it is best to grant latitude to the Government.

Secondly, there is a strong case to be made that support

given to the PKK and LTTE, material or other, funds
terrorist activities. Respondents maintain that they support
only the non-violent, law-abiding wings of these
organizations. After all, Respondents aim to help these
groups seek assistance from the United Nations, the
outcome of which may reduce violence. Still, support, and
the money to which that support is tantamount, is fungible.
If Respondents provide a service free of charge, then money
is freed up in other, perhaps violent, law-breaking wings.
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There exists little oversight in these organizations, so one

cannot, in all certainty, know where money flows. For all
Respondents may be aware, the services they contribute to
said organizations may help free up cash to pay for terrorist
activities that put at risk American lives.

We weight heavily the fact that no term in question,

“training,” “expert advice and assistance,” or “service,” is
vague. We also weight heavily the fact that no term in
question is overbroad. According to the O’Brian test, the
statute in question is legitimate, appropriate, and
constitutional. It is also in our mind that the political
branches are due deference and that service to those
designated terrorist organizations, to which money is
tantamount, is fungible. All of this in mind, we come to our
decision. We remand and reverse the ruling of the Ninth
Circuit Court of Appeals.

It is so ordered.