United States Institute of Peace • www.usip.org • Tel. 202.457.1700 • Fax. 202.429.6063

UNITED STates institute of peace

© USIP 2010 • All rights reserved.

“The Holder v. Humanitarian Law Project ruling has 

serious ramifications for the 

international peacemaking 

community: could President 

Jimmy Carter be brought 

up on criminal charges for 

providing advice to all parties 

in Lebanon on fair elections 

practices? Are organizations 

trying to release hostages 

from rebel forces in 

Colombia acting illegally?”

November 3, 2010 

When Is International Peacemaking Illegal? Implications of the 2010 

Supreme Court Decision in Holder v. 

Humanitarian Law Project

Summary

•	 The June 21st Supreme Court decision in Holder v. Humanitarian Law Project affirmed the 

constitutionality of the material support statue which makes it illegal for U.S. citizens and 

organizations to provide material support, including expert advice or assistance, service or 

personnel, to designated terrorist organizations regardless of whether the support is intended 

to promote nonviolence and peace.

•	 The material support law and the process of listing terrorist groups provides the U.S. government with an enhanced legal structure to arrest alleged terrorists and prevent terrorist acts. 

•	 However, it is unclear that the process is effective in practice or that enhancing the government’s legal power to prevent acts of terrorism outweighs the unintentional consequences of 

prohibiting nongovernmental organizations (NGOs) from working on the front lines of conflict 

zones to promote conflict resolution. 

•	 Looking to the future, NGOs can work with the State Department and Congress to find ways 

to allow peacebuilding and humanitarian organizations to continue their operations legally, 

while also not threatening national security. 

Introduction

On June 21st 2010, the Supreme Court upheld the constitutionality of the material support statute. 

This law makes any U.S. citizen or organization that supports a designated terrorist organization—

including through the provision of expert advice or training on how to promote nonviolent 

solutions and peace—criminally liable. The Holder v. Humanitarian Law Project ruling has serious 

ramifications for the international peacemaking community: could President Jimmy Carter be 

brought up on criminal charges for providing advice to all parties in Lebanon on fair elections 

practices? Are organizations trying to release hostages from rebel forces in Colombia acting illegally? Could a U.S. citizen involved in back-channel diplomacy to bring parties together for peace 

talks get arrested? 

To better understand the implications of the Holder v. Humanitarian Law Project (HLP) decision, 

USIP’s Center for Mediation and Conflict Resolution held a public workshop on September 10, 

Stephanie Schwartz

E-mail: sschwartz@usip.org

Phone: 202.429.4713

peaceBrieF65
© USIP 2010 • All rights reserved.

When Is International Peacemaking Illegal? 

page 2 • PB 65 • November 3, 2010

2010 featuring David Cole, who argued the case on behalf of the Humanitarian Law Project; Alistair 

Millar, the director of the Center on Global Counterterrorism and Cooperation; Ken Wainstein, a 

partner in O’Melveny and Meyers, former assistant attorney general for National Security and a 

former Homeland Security adviser; Chester Crocker, a board member at the U.S. Institute of Peace 

and former U.S. assistant secretary of state for African affairs; and Kay Guinane, program manager 

of the Charity and Security Network. 

The Decision

The decision in Holder v. Humanitarian Law Project (HLP) affirmed the constitutionality of 18 U.S.C. 

2339B(a)(1), or the material support statute, which prohibits “knowingly provid[ing] material support 

or resources to a foreign terrorist organization.”1 Of utmost importance to the international peacemaking community, the Court upheld the definition that “material support,” includes the provision 

of training, expert advice or assistance, service or personnel, regardless of whether these services 

are intended to combat terrorism or promote negotiation, nonviolent solutions and peace.

The case of Holder v. HLP originated in 1998, when the Humanitarian Law Project, a nonprofit 

organization dedicated to promoting the peaceful resolution of conflict, was providing training to 

the Kurdistan Workers’ Party (PKK) on human rights enforcement and peaceful conflict resolution. 

Other plaintiffs to the Supreme Court case included several organizations and individuals who engaged with the Liberation Tigers of Tamil Eelam (LTTE) to provide humanitarian support to civilians 

in Sri Lanka affected by the civil war and the 2004 tsunami. Both the PKK and LTTE are designated as 

Foreign Terrorist Organizations (FTOs) by the U.S. Department of State and therefore the plaintiffs’ 

training and assistance programs could be found illegal under the material support law.

David Cole argues that one of the key precedents for this case is the United States’ experiences 

with communism in the 1940s and 1950s when the government attempted to prevent the insidious threat of communism by criminalizing advocacy, membership and association of the Communist Party. These measures led to the McCarthy investigations, which the Supreme Court would 

overrule as unconstitutional, recognizing that while the government can criminalize support to the 

unlawful activities of the Communist Party, prohibiting lawful engagement with it would violate 

the First Amendment.

In a departure from this precedent, the majority decision in Holder v. HLP found that while the 

law does regulate speech, the Court would defer to the expertise of Congress because the issue 

involves national security. Moreover, the Court found that there could be situations in which 

teaching terrorist organizations how to address their grievances through peaceful means could 

actually empower them to engage in harassing or disruptive behavior; working with these groups 

could provide a delay during which they could rearm; and, the mere act of interacting with these 

organizations could give them a degree of legitimacy that they could then use to enhance their 

terrorist activities. Thus, the Court ruled that the government has the right to regulate free speech 

with regard to support to terrorist organizations. 

The FTO Policy in Practice: Is It Working?

While Holder v. HLP reaffirmed the constitutionality of the material support law, there remains 

debate as to whether the law and the practice of creating lists of proscribed organizations and 

individuals are actually effective in preventing terrorism. 

On one side of the argument, terrorism is a threat to national security—one in which the 

traditional prosecutorial tools do not meet the government’s needs to prevent terrorism. This 
© USIP 2010 • All rights reserved.

When Is International Peacemaking Illegal? 

page 3 • PB 65 • November 3, 2010

argument asserts that the potential scale of suffering from a terrorist attack demands that the 

government has the tools to prevent acts of terrorism before they happen, rather than just deter 

them from happening again through traditional criminal law and punitive measures. One such 

tool is the material support legislation, and the listing of proscribed armed groups under the FTO 

list maintained by the Department of State and the Department of Treasury’s Specially Designated 

National and Blocked Persons (SDN) list under the Office of Foreign Assets Control (OFAC) sanctions program.

Designating terrorist groups through these lists provides the Department of Justice with a basis 

to prosecute those found to be supporting people or organizations who actively threaten the 

security of the United States and provides the Treasury Department with the legal foundation to 

freeze the assets of such groups. The designation process is intended to stigmatize organizations 

engaged in terrorism, deter others from supporting them, and heighten public awareness about 

the groups that threaten us. However, it is not clear that these enhanced tools are effective, that 

the list serves as a deterrent, or what the process is for groups and individuals to appeal their 

designation and be removed from the lists.

With his experience as a prosecutor, Wainstein sees that the material support law is effective 

in preventing terrorism. Arresting someone who supports a designated terrorist organization 

degrades the organization’s capabilities, slows down their planned activities and exposes the 

people in the terrorist network. This makes it easier for the government to detect them and gives 

the government a way to delegitimize their actions among a general public of potential recruits. 

While the material support law has been used most often to counteract traditional types of 

support—like money and arms—from reaching terrorist organizations, there have been several 

cases of U.S. citizens supporting terrorist groups by providing expert advice and services such as 

facilitating visas or providing satellite transmission services. Moreover, Wainstein argues that there 

is no firewall in place that money or advice contributed to terrorist organizations for peaceful ends 

will be guaranteed to support only peaceful and legal activities, and not violence. 

While the intentions of the material support law and the designation of terrorist organizations 

align in spirit with what we know about how to combat terrorism, Alistair Millar argues that the 

unintended consequences are complicated and potentially counterproductive. As support from 

the population is one of the strongest tools terrorist organizations have, the foremost tactic for 

combating terrorism, as agreed upon by academics and the uniformed military alike, is to peel 

away the general population and pragmatists from the radicals. This tactic isolates the violent 

radicals and provides ways for the pragmatists to address their grievances through lawful means. 

This is how the Irish Republic Army (IRA)—which enjoyed widespread popularity in the 1970s, 

1980s and 1990s—lost public support, with only the most radical “Real IRA” active today, though 

no longer a security threat on the same scale. Moreover, as Paul Wilkinson notes in the USIP Special 

Report “How Terrorism Ends,” “A political agreement can . . . attract the support of a large segment 

of a population, and that support can be a very important component in ending the cycle of 

violence.”2 However, to pull the population away from the radical core, or work with parties to 

reach a political agreement—you have to interact with them. 

When the government—for political or logistical reasons—cannot work directly with proscribed 

groups or the general population, nongovernmental organizations play a vital role. Yet, the 

material support law unintentionally prevents nongovernmental organizations from working on 

the front lines of conflict resolution and mediation. Moreover, American law schools have stopped 

giving advice to individuals and organizations outside the U.S., and American philanthropic 

funding sources are refusing to give money to humanitarian and human rights groups involved in 

such work.
© USIP 2010 • All rights reserved.

When Is International Peacemaking Illegal? 

page 4 • PB 65 • November 3, 2010

Implications for International Peacemaking

According to Crocker, the material support law will reduce American effectiveness and influence in 

the work of building peace and providing humanitarian aid. Americans cannot change the hearts 

and minds of those in proscribed groups if we cannot engage them.

Mediation and Diplomacy

One of the main activities that the material support law hinders is mediation. Of course, there 

are both pros and cons to consider when governments or third parties engage with proscribed 

armed groups. Accordingly, while in some cases the act of engaging in negotiations with a terrorist 

organization provides it with legitimacy, such risks must be calculated against the possible gains 

from what those talks can achieve and the change in behavior of the group that “controls the guns” 

in conflict situations. Moreover, as Kay Guinane notes, the laws create potential criminal liability 

for U.S. citizens to engage in back-channel communications in order to bring conflicting groups 

to the table in an official peace process, the logistics of which would involve too many concrete 

communications not to make those actions proscribed. 

A recent USIP Special Report outlines a number of factors that should go into the calculations 

of whether or not to engage with a proscribed group:3 Do the potential mediators see that the 

parties are genuine in wanting peace? Are the parties authentic representatives of their movement 

or their population? Do they have the capacity to deliver on a peace agreement? Does talking with 

them have some possibility of changing the behavior within the movement? According to Crocker, 

analysis of whether it is in the strategic national interest to engage with terrorist organizations 

will not be the same for all groups, and needs to be considered by experts on the situation, not in 

blanket legislation. 

Other Humanitarian Activities

Outside of mediation, Guinane noted that the material support law has broad implications for 

humanitarianism and peacebuilding, and anticipates that there will be a “chill on peacebuilding 

and humanitarian activities.” Among them:

•	 Grantmaking to organizations working to support peacemaking activities and provide 

humanitarian aid;

•	 Providing legal services to proscribed clients wishing to bring their grievances into the 

court system; 

•	 Negotiating the release of hostages or child soldiers; and

•	 Talking with proscribed groups to enter territories in order to remove land mines or provide 

humanitarian relief.

Peacemaking Going Forward

In its Holder v. HLP decision, the Supreme Court deferred to Congress and the executive branch 

on the material support issue as it pertains to national security. Therefore, as we look to the future 

there are a number of ways in which the peacemaking community can work with the government 

to make room for the vital work of NGOs.

First, ask the State Department to re-analyze the FTO list to see if all 47 groups on it warrant the 

same designation, or if it is possible to have a more refined list or set of lists. Not all armed actors 

are the same. While it makes sense to have extreme restrictions on support, training and advice to 
© USIP 2010 • All rights reserved.

USIP provides the analysis, training and 

tools that prevent and end conflicts, 

promotes stability and professionalizes 

the field of peacebuilding.

For media inquiries, contact the office 

of Public Affairs and Communications, 

202.429.4725

About This Brief

The June 2010 Supreme Court 

decision in Holder v. Humanitarian Law Project upheld the 

constitutionality of the material 

support law which makes it illegal 

for U.S. citizens and organizations 

to provide support, including 

expert advice and training, to 

designated terrorist organizations 

regardless of whether that support 

is intended to promote peace. 

This Peace Brief captures the 

discussion from a public event 

convened by the U.S. Institute of 

Peace on September 10, 2010 

to better understand how the 

decision affects the peacebuilding 

community. The author, Stephanie 

Schwartz, is a program specialist in 

the Institute’s Center for Mediation 

and Conflict Resolution.

groups like al-Qaida, many of those 47 groups do not consider themselves to be at war with the 

United States. As Crocker noted, it is one thing to limit contact with anti-U.S. organizations, but the 

current lists include a number of groups that do not fit this description and could be important 

participants in future peacemaking efforts.

Another avenue is to work with the executive branch and Congress to undertake a fact-finding 

exercise to learn what is the actual impact of providing expert advice and training intended only 

for peaceful and nonviolent purposes. It is not clear that listing terrorist organizations actually 

delegitimizes those organizations, or that providing advice on human rights enforcement is 

fungible and frees up resources for unlawful actions. According to Guinane, such a fact-finding 

mission would enable the U.S. government to figure out how we can fulfill our obligations under 

international humanitarian law, while still preventing violent activity. 

Finally, the U.S. secretary of state has the power to make exceptions for expert training, advice 

and training if it is in the national interest. Therefore, peacemaking organizations may want to work 

with the State Department to more rigorously pursue a waiver for peacebuilding activities which 

would ultimately advance our national interests to create a more peaceful global environment. 

Endnotes

1. 18 U.S.C. 2339B(a)(1).

2. Jon B. Alterman and Sara Simon. “How Terrorism Ends.” USIP Special Report, May 1999.

3. Véronique Dudouet. “Mediating Peace with Proscribed Armed Groups.” USIP Special Report, 

May 2010.

When Is International Peacemaking Illegal? 

page 5 • PB 65 • November 3, 2010