Breinholt on Terrorism Finance Prosecutions and the First Amendment

Resolved, Or Is It?  The First Amendment and Giving Money to Terrorists""

   

57 American University Law Review 1273

JEFF BREINHOLT, U.S. Dep't of Justice

http://www.wcl.american.edu/journal/lawrev/57/breinholt.pdf?rd=1

From the introduction:

This Article seeks to show that legal certainty has been achieved in an arena that is very important: whether the U.S. government can limit the giving of money to terrorist groups. In this field, there is a regulatory regime, a series of statutes, and a corpus of prosecutions and civil lawsuits arising from these laws that the American courts have found to comport with the First Amendment.⁴ The test for legal certainty is relatively easy, if one agrees that the question is binary: either the enactment of a particular rule or law, or government action in initiating a criminal prosecution or permitting a private civil action, is constitutional, or it is not. The cases where these arguments are considered provide the answer. It is just a matter of keeping score until it gets rather lopsided and then declaring a winner and concluding that the constitutional issue has been settled.⁵ At that point, people know exactly what is prohibited, to the extent there was any doubt.

 

If legal certainty has been achieved, why do we still see claims that the United States' actions in the counterterrorism field violate the First Amendment? Good question. The only explanation is that there are still lawyers and legal strategists engaging in wishful thinking, almost to the point of bad faith. The problem with this practice, beyond wasting judicial resources, is the inconsistency, since their arguments—if accepted—would take the United States away from the goal of the rule of law and jeopardize legal tools about which these strategists themselves are enthusiastic.

 

This Article seeks to illustrate this point. Part I describes the easy cases on constitutional counterterrorism in America. Part II takes them a step further and discusses the constitutional challenges as American counterterrorism efforts have sought to reach the non-violent actors in the terrorist infrastructure, by attacking the act of giving money. Part III considers the next constitutional battlefield and explains why people who continue to push the view that terrorist financing cannot be constitutionally targeted through legal proceedings will, if successful, eliminate remedies they themselves enjoy.