Ninth Circuit upholds constitutionality of federal ban on financially supporting organization Secretary of State has designated "terroristic"
U.S. law prohibits the giving of financial support to officially designated terrorist organizations. See 28 U.S.C. Section 2339B(a)(1). According to a federal indictment, Roya Rahmani and others conspired to provide material support to the Mujahedin-e Khalq (MEK), an organization which the Secretary of State has certified as terroristic under 8 U.S.C. Section 1189. Iranian Marxists had founded MEK in the 1960s as a group seeking to overthrow the government. In 1979, it took part in taking American embassy personnel hostage in Iran. Later on, MEK members fled Iran. They ended up settling in Iraq near the Iranian border, whence they carried out terrorist attacks.
Within the U. S., the defendants asked for charitable contributions at the Los Angeles International Airport for the so-called "Committee for Human Rights." They then forwarded the collected money to the MEK. MEK provided other funding as well, totaling several hundred thousand dollars. The defendants knew that the U. S had designated MEK as a "terrorist" outfit, having attended a conference call with an MEK leader who had revealed that fact.
The district court dismissed the indictment because it considered the terrorist designation statute, 8 U.S.C. Section 1189, unconstitutional. The district court reasoned that the restriction of judicial review only to the D.C. Circuit invalidated the statute. On the government's appeal, the U.S. Court of Appeals for the Ninth Circuit reverses.
Section 1189 sets forth a scheme for designating foreign terrorist organizations. The Secretary of State has to make specific findings that the organization takes part in terrorist activity and thereby threatens U.S. security. The designated organization may seek judicial review of the Secretary's determination in the U.S. Court of Appeals for the District of Columbia Circuit.
The present Court reject appellants' attack on Section 1189. "Many administrative determinations are reviewable only by petition to the correct circuit court, bypassing the district court, and that procedure has generally been accepted. The congressional restriction does not interfere with the opportunity for judicial review, as the MEK's extensive litigation history shows. And this scheme avoids the awkwardness of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the different regional circuits might." [Slip op. 6-7].
The next question is whether the U. S. may criminally prosecute a defendant for donating to such an organization. The defendants argued that Section 2339B that bars material support to designated foreign terrorist organizations denies plaintiffs' constitutional rights because it takes away their chances to collaterally attack the designation. Section 1189(a)8) provides that "... a defendant in a criminal action ... shall not be permitted to raise any question concerning the validity of ... such designation ... as a defense or an objection at any trial or hearing."
"The defendants are right that Section 1189(a)(8) prevents them from contending, in defense of the charges against them under 18 U.S.C. Section 2339B, that the designated terrorist organization is not really terrorist at all. No doubt Congress was well aware that some might be of the view that "one man's terrorist is another man's freedom fighter.' ... Under Section 2339B, if defendants provide material support for an organization that has been designated a terrorist organization under Section 1189, they commit the crime, and it does not matter whether the designation is correct or not."
"The question then is whether due process prohibits a prosecution under Section 2339B when the predicate designation was obtained in an unconstitutional manner or is otherwise erroneous. ..."
"... [H]ere, the defendants' rights were not directly violated in the earlier designation proceeding. The predicate designation was against the MEK, not the defendants. Section 1189 provides for the organizations to seek review of the predicate designation, and that review was had in this case. Therefore, due process does not require another review of the predicate by the court adjudicating the instant Section 2339B criminal proceeding." [Slip op. 10-14]
The defendants claim, furthermore, a First Amendment right to support an organization that the Department of State has mistakenly designated as terrorist. The Court is not convinced.
Section 2339B does not impermissibly restrict the defendants' First Amendment right of association. "Conceivably the MEK developed its practices at a time when the United States supported the previous regime in Iran, and maintained its position while harbored by the Saddam Hussein Ba'ath regime in Iraq, but will change, or has already changed, so that its interest in overturning the current regime in Iran coincides with the interests of the United States."
"The sometimes subtle analysis of a foreign organization's political program to determine whether it is indeed a terrorist threat is peculiarly within the expertise of the State Department and the Executive Branch. ... Leaving the determination to the Executive Branch, coupled with the procedural protections and judicial review afforded by the statute, is both a reasonable and a constitutional way to make a determination of whether a group is a "foreign terrorist organization.' The Constitution does not forbid Congress from requiring individuals, whether they agree with the Executive Branch designation or not, to refrain from furnishing material assistance to designated organizations during the two-year period of designation." [Slip op. 25-26]
Citation: United States v. Afshari, No. 02-50355 (9th Cir. December 20, 2004).
USA visa and immigration information is available at www.immigrationtelevision.com.
|
