Tuesday, December 21, 2004
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Court Upholds Ban on Aid to Groups Dubbed ‘Terrorist’ by U.S.
From Staff and Wire Service Reports
The Ninth U.S. Circuit Court of Appeals yesterday upheld the constitutionality of a 1996 law making it a crime to contribute “material support” to an organization that has been designated as a foreign terrorist group.
The panel reversed a contrary ruling by Senior U.S. District Judge Robert Takasugi of the Central District of California, who held that the law violates the First Amendment and the right of free association because it does not allow a defendant to contest the government’s determination that the designated organization engages in or furthers terrorism.
The panel reinstated an indictment charging seven Los Angeles residents with raising money for a terror organization with links to Saddam Hussein.
About 30 groups are currently designated as foreign terrorist organizations under the law, part of the Antiterrorism and Effective Death Penalty Act of 1996. Prosecutions of individuals under the statute were rare before Sept. 11, 2001, but the administration subsequently has used it to win dozens of terror convictions nationwide, from Lackawanna, N.Y., to Seattle and Portland, Ore.
2001 Indictment
The defendants in the case ruled on yesterday— Hossein Afshari, Mohammad Omidvar, Hassan Rezaie, Roya Rahmani, Navid taj, Mustafa Ahmady, and Alireza Mohamad Moradi—were indicted in 2001 indictment on charges of funneling several hundred thousand dollars to the Mujahedin-e Khalq, or MEK.
According to the indictment, the Los Angeles defendants solicited donations at the Los Angeles International Airport and wired money to an MEK bank account in Turkey.
The group is also known as the People’s Mojahedin Organization of Iran or the National Council of Resistance for Iran, among other names. It began as a Marxist opposition group to the Shah of Iran, but when the Islamist regime took hold following the Shah’s overthrow, its members fled to France before establishing a base of operations in border areas of Iraq.
The government alleged that the organization was engaged in anti-Iran terrorism with the support of Saddam Hussein’s regime in Iraq between 1997 and 2001. It was designated a terrorist organization in 1997 and re-designated in 1999.
The statute allows an organization 30 days to seek review of the designation or re-designation in the U.S. Court of Appeals for the D.C. Circuit. The State Department is required to file an administrative record to enable the court to determine whether the designation was contrary to law or unsupported by substantial evidence.
The MEK unsuccessfully contested the original designation. Its challenge to the 1999 renewal was initially successful, but the State Department upheld its original decision on remand and the court affirmed on the basis of an expanded administrative record.
Kleinfeld Opinion
In his opinion yesterday, Judge Andrew Kleinfeld said the government need only prove the “fact that a particular organization was designated at the time the material support was given, not whether the government made a correct designation.” The government, he noted, alleges that the defendants were told about the designation before they sent money to the MEK.
He distinguished a case in which the U.S. Supreme Court struck down an Alabama obscenity conviction because the defendant, a news stand operator, was not allowed to contest a local agency’s conclusion that the material in question was, in fact, obscene.
When the issue is foreign terrorism, the judge said, “the stakes and incentives are far different” than in an obscenity case in which the initial determination is made by a mere local agency.
“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,” Kleinfeld wrote. “Juries could not make reliable determinations without extensive foreign policy education and the disclosure of classified materials.”
Fourth Circuit Mirrored
The decision mirrors a ruling this year by the Fourth Circuit in Richmond, Va., upholding the conviction of a man who funneled money to the militant Hezbollah organization while insisting he had a right to challenge that group’s listing.
“The Justice Department is pleased that yet another court has upheld the constitutionality of the material support statute, a key weapon in our arsenal of legal remedies in the war on terror,” spokesman John Nowacki said. “Stopping the flow of money and other resources to terrorists is critical to our success, and the department will continue to pursue those who provide material support for terrorist objectives.”
“This is a troubling result for a nation that believes in freedom of association,” said David Cole, an expert on the law in question at the Georgetown University Law Center.
But Kleinfeld said the First Amendment did not provide unlimited speech, and even allows limits on campaign contributions.
“It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated a terrorist organization,” Kleinfeld wrote.
Joining Kleinfeld were Judges Kim McLane Wardlaw and William A. Fletcher.
The case is United States v. Afshari, 02-50355.
Copyright 2004, Metropolitan News Company