Thursday, September 9, 2004
Ninth Circuit Grants En Banc Review of Ruling on Terror Law
By KENNETH OFGANG, Staff Writer/Appellate Courts
The Ninth U.S. Circuit Court of Appeals agreed yesterday to grant en banc review of a three-judge panel’s decision restricting the government’s ability to prosecute those accused of assisting terrorist organizations.
In a brief order signed by Chief Judge Mary M. Schroeder, the court said a majority of its unrecused active judges had agreed to review by an 11-judge panel of last December’s decision in Humanitarian Law Project v. U.S. Department of Justice, 02-55082.
Judge Raymond C. Fisher, who was associate attorney general in the Clinton administration when the law under challenge was first being implemented, recused himself from the vote, the order noted.
The three-judge panel, in a 2 to 1 decision, upheld a ruling by U.S. District Judge Audrey Collins striking down part of the Antiterrorism and Effective Death Penalty Act of 1996, a law passed largely in reaction to the 1995 bombing of the Murrah Federal Building in Oklahoma City.
Collins said a portion of the law making it a crime to “knowingly provide[ ] material support and resources” to an organization designated as terrorist by the State Department was unconstitutionally vague to the extent it includes “training” and “personnel” within the definition of “material support and resources.”
A three-judge Ninth Circuit panel upheld that portion of the ruling four years ago, but sent the case back to Collins to reconsider other issues.
In the December ruling, the panel reaffirmed its view of the “material support” clause. It also rejected several other constitutional challenges to the law, but—in what the Justice Department said was a key blow to anti-terrorism efforts—held that a defendant cannot be convicted under the law without proof he or she knew the organization had been designated as terrorist or knew of its terrorist activities.
AEDPA establishes procedures by which the secretary of state may designate as a “foreign terrorist organization” any foreign group that “engages in terrorist activity” that “threatens the security of United States nationals or the national security of the United States.”
Organizations being considered for the designation are not entitled to notice, or to contest the designation in advance. Once the designation is published in the Federal Register, it takes effect immediately.
A designated group may contest the decision within 30 days of publication by appealing to the U.S. Court of Appeals for the D.C. Circuit. But review is limited to the administrative record established by the State Department in support of the decision.
Members and representatives of designated groups are barred from entering the United States. Anyone convicted of providing material support to a foreign terrorist organization faces hundreds of thousands of dollars in fines and a prison term of up to 15 years, or life imprisonment if death results.
The Clinton administration’s initial review under the act resulted in 30 organizations being designated as terrorist in October 1997. Supporters of two of those groups, the Kurdish People’s Party, or PKK, and the Liberation Tigers of Tamil Eelam challenged features of the law they claimed deprive them of the right to support humanitarian and diplomatic efforts to bring about self-determination for oppressed ethnic minorities.
The PKK advocates a Kurdish homeland in southeastern Turkey. The Tamil Tigers say their people are oppressed by the Sinhalese majority in Sri Lanka and want an independent Tamil state in northern and Tamil Eelam, the area of northern and eastern Sri Lanka where most Tamils live.
The State Department, while denouncing the armed resistance to the Turkish and Sri Lankan governments, acknowledges that the Kurds and Tamils have been the victims of systematic human rights violations by those regimes.
Plaintiffs in the action include the Humanitarian Law Project headed by retired federal Administrative Law Judge Ralph Fertig of Los Angeles. The HLP has denounced Turkey’s treatment of the Kurds before the United Nations’ Human Rights Commission and congressional committees, and complains that its peaceful activities in support of the Kurds could be construed as providing material support to the PKK under AEDPA.
Judge Harry Pregerson, writing last year for the three-judge panel, agreed. Pregerson wrote that because Congress included the term “knowingly” in the law, the government must prove defendants knew the group is a designated terrorist organization, or knew of the activities that led to the designation.
The alternative interpretation urged by the government, that it is sufficient that the defendant knew that the support or services were going to the particular organization, would render the law constitutionally dubious, Pregerson said.
Under that view, the judge explained, “a woman who buys cookies from a bake sale outside of her grocery store to support Kurdish refugees to find new homes could be held liable, so long as the bake sale had a sign that said that the sale was sponsored by the PKK.”
Similarly, the judge wrote, an American who sends a check to a school or orphanage run by the Tamil Tigers could be prosecuted even if he or she did not know that the group had been designated as terrorist or had engaged in terrorist acts.
Pregerson cited cases striking down loyalty oaths and other McCarthy-era enactments, including laws barring Communist Party members from obtaining passports or being officers of labor unions.
Judge Sidney Thomas concurred, but Judge Johnnie B. Rawlinson dissented.
Rawlinson argued that the challenged section of AEDPA differs from the laws cited by Pregerson in that it applies only after the group has been proven to engage in terrorism and does not punish all members of an organization, only those who provide one with material support.
While “the subversive activities attributed to the” Communist Party and related organizations targeted by the McCarthy-era laws “were more theoretical than real,” the judge added, the PKK and Tamil Tigers are “real-life terrorist organizations that have engaged in all-too-real terrorist sorties resulting in widespread death and destruction.”
Copyright 2004, Metropolitan News Company