Fertig, who heads the human rights organization, the Humanitarian Law Project, filed suit on behalf of individuals associated with two designate groups, the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE).
The HLP already filed a lawsuit in 1997 suggesting that the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional insofar as it criminalizes the provision of material support or resources to the lawful and non-violent activities of any foreign organization designated as "terrorist" by the Secretary of State. The court of appeals decision the administration is seeking review of is the sixth ruling from the lower courts since 1998 finding significant parts of the material support statute to be unconstitutionally vague.
The latest appeals court decision in Mr. Fertig’s case, in 2007, ruled that the bans on training, service and some kinds of expert advice were unconstitutionally vague. But it upheld the bans on personnel and expert advice derived from scientific or technical knowledge. Both the state and the HLP appealed to the Supreme Court, which agreed to hear the consolidated cases in October. The court will hear arguments on Feb. 23.
The HLP have engaged in extensive political advocacy on behalf of the PKK since 1992. They have conducted fact-finding investigations of human rights violations by the Turkish government against the Kurds and published reports that are supportive of the PKK. In addition, they have provided training to the PKK on how to advocate for their rights under international law.
But once the State Department designated the PKK a terrorist organization, it became a crime for HLP to continue to train the PKK in human rights advocacy, even though that assistance is designed to reduce violence by encouraging peaceful ways of resolving conflict.
