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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 21, 2010 ::
    Part III of the Humanitarian Law Project opinion points to a way the Obama DOJ has of defending statutes that tread close to free-speech interests. If the Bush boys did the same thing, please point that out to me.

    When SG Kagan was defending McCain-Feingold in Citizens United, and had to admit that the law would authorize the banning of books within 60 days of an election, she fell back on the argument that federal prosecutors would never enforce the law in that manner. I.e. -- trust us.

    Here, according to the Court, DOJ argued "that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities." But "[w]e reject plaintiffs’ [i.e. Holder's, DOJ's] interpretation of §2339B because it is inconsistent with the text of the statute. Section 2339B(a)(1) prohibits 'knowingly' providing material support."

    Notice the pattern. The statute may have a mens rea of "knowingly" but we ask you to blue-pencil into it a mens rea of "intent to further illegal activities." That's the way we mean to enforce it. Trust us!

    The two cases aren't identical, of course. If, here, the Court had held that the statute contained an implied mens rea of intent, DOJ would theoretically have been bound by that in future prosecutions under it. But the statute itself would still have contained only the lesser mens rea of "knowingly." Eventually a prosecution brought under that theory would have come before the Supreme Court, which would then have said "Gosh darn you're right, it does say 'knowingly,' we were wrong to raise the bar on that...." Much better to interpret the statute in terms of its words now, and draw the necessary constitutional conclusions. (On which, more in a while.)

    :: David M. Wagner 3:06 PM [+] ::

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