Ninth Circuit reviews constitutionality of AEDPA provisions that permit designation of "foreign terrorist organizations" finding serious Fifth Amendment due process concerns and concluding that ban on providing support in the form of "training" and "personnel" is overbroad
Sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) [8 U.S.C. Section 1189 and 18 U.S.C. Section 2339B] authorize the Secretary of State (Secretary) to designate "foreign terrorist organizations." This labeling makes it a crime for any person to knowingly provide "material support or resources" to such an organization.
Specifically, the Secretary may designate a foreign terrorist organization "... if the Secretary finds that (A) the organization is a foreign organization; (B) the organization engages in terrorist activity ...; and ( C) the terrorist activity or terrorism of the organization threatens the security of United States nationals of [sic] the national security of the United States." 8 U.S.C. Section 1189(a)(1).
Noteworthily, Section 1189 neither requires notice to such an organization nor gives the outfit a chance to submit or review evidence during the designation process. In fact, the classification may rest, in whole or in part, on "classified information" to which the designated organization cannot gain access. 8 U.S.C. Section 1189(a)(3)(B).
The key issue here is whether a criminal prosecution under 18 U.S.C. Section 2339B requires the government to prove as an element of the offense that the defendant knew that the Secretary had applied the "terrorist" designation or, at least, knew about the organization's allegedly unlawful activities that led up to its stigmatization.
Section 2339B provides that "[w]hoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined ... or imprisoned not more than 15 years, or both ..." The statute defines the term "material support" as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications, equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." 18 U.S.C. Section 2339A(b). The law also bars a criminal defendant in such a proceeding from raising the issue of whether the U.S. had properly labeled the organization as "terrorist."
Six legal and social service organizations and two U.S. citizens brought an action to support the peaceful activities of certain Kurdish and Tamil groups which the U.S. has set down as "foreign terrorist organizations". Examples are The Kurdistan Workers Party a.k.a. Partiya Karkeran Kurdistan (PKK), and the Liberation Tigers of Tamil Eelam (LTTE). These organizations have reportedly supported a range of activities that include both terrorism and humanitarian aid. They have been on the terrorist list since 1997. (See 62 Fed. Reg. 52650, October 8, 1997).
Plaintiffs had previously presented their constitutional arguments in Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001). There, the Court found that Section 2339B did not violate the First Amendment by allegedly imposing "guilt by association" and restricting "symbolic speech." The Court had also held that the designation process of Section 2339B did not confer an overbroad discretion on the Secretary and thus did not violate the Fifth Amendment. On remand, the district court had permanently enjoined the Government from enforcing Section 2339B against plaintiffs to the extent that they provide material support in the form of "training" and "personnel" to designated organizations. The Government appealed but the U.S. Court of Appeals for the Ninth Circuit affirms.
First, the Court addresses the plaintiffs' argument that Section 2339B violates the Fifth Amendment because it does not require that the Government prove personal guilt. "In light of the text of Section 2339B, the [Supreme] Court's longstanding principles interpreting the word "knowingly' to indicate Congress' intent to include a mens rea requirement, and the due process concern ..., we read Section 2339B to require proof of knowledge, either of an organization's designation or of the unlawful activities that caused it to be so designated. ... Thus, to sustain a conviction under Section 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist organization or that the donor had knowledge of the organization's unlawful activities that caused it to be so designated." [Slip op. 55-56]
Also, the Court re-affirms its decision in Humanitarian Human Law Project II [HHLP II] that the ban on providing "training" and "personnel" in Section 2339B is overbroad, and therefore void for vagueness under the First and Fifth Amendments. "In [HHLP II], we correctly concluded that the term "personnel' was impermissibly vague because it is open to a highly subjective construction that endangers lawful conduct protected by the First Amendment. As we stated in [HHLP II], "it is easy to see how someone could be unsure about what AEDPA prohibits with the use of the term "personnel,' as it blurs the line between protected expression and unprotected conduct.' [Cite] We observed that "someone who advocates the cause of the PKK could be seen as supplying them with personnel ... But advocacy is pure speech protected by the First Amendment.' Id."
"Indeed, the term "personnel' could be understood to cover some of plaintiffs' activities most safely guarded by the First Amendment. "Personnel,' for example, could be understood to bring into its scope Humanitarian Law Project's members' efforts to urge members of Congress to support the release of Kurdish political prisoners in Turkey. ... Because "personnel' could be construed to include unequivocally pure speech and advocacy protected by the First Amendment, we decline to depart from our legal ruling in [HHLP II] that the term "personnel' is void for vagueness. Id."
"We also reaffirm our legal conclusion in [HHLP II] that the term "training' is unconstitutionally vague. Reasonable people could easily assume that the use of the word "training' in Section 2339B encompasses First Amendment protected activities. As we observed in [HHLP II] "a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of "training.'" Id. At 1138. Indeed, Humanitarian Law Project's efforts to show PKK members how to use humanitarian and international human rights laws to seek a peaceful resolution to the conflict in Turkey could reasonably fall within the scope of "training.'" [Slip op. 60-62]
The bottom line is that, if the government accuses someone of breaching Section 2339B, it has to prove beyond a reasonable doubt either (a) that the accused knew that the U.S. has classified its group as a foreign terrorist organization or (b) that he or she knew about the outfit's unlawful activities that led it to be so labeled. Moreover, the terms "personnel" and "training" in the definition of "material support" are constitutionally void for vagueness.
Citation: Humanitarian Law Project v. United States Department of Justice, 2003 WL 22871899 (9th Cir. 2003).
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