Tuesday, December 11, 2007
Ninth Circuit Panel Strikes Down Part of Anti-Terror Law
By STEVEN M. ELLIS, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday struck down portions of a federal law that prohibits providing material support or resources to a designated foreign terrorist organization, saying the law fails to specify what such conduct includes.
Unanimously affirming the decision of U.S. District Judge Audrey B. Collins for the Central District of California, a three-judge panel held that portions of the Antiterrorism and Effective Death Penalty Act of 1996 are impermissibly vague because they fail to notify persons of ordinary intelligence what conduct constitutes providing “material support or resources,” and potentially chill activity protected under the First Amendment.
The act, which was passed largely in reaction to the 1995 bombing of the Murrah Federal Building in Oklahoma City, authorizes the Secretary of State to designate foreign organizations that engage in terrorist activity that threatens the security of the United States or its nationals as “foreign terrorist organizations.” It also makes it a crime to provide support to any such group, even for nonviolent activities.
A group of six organizations, including the Humanitarian Law Project headed by retired federal Administrative Law Judge Ralph Fertig of Los Angeles, challenged the law in 1998, complaining that their peaceful activities in support of the Kurdistan Workers Party, or PKK, and the Liberation Tigers of Tamil Eelam could be construed as providing material support under the act.
The PKK advocates a Kurdish homeland in southeastern Turkey. The Tamil Tigers say they 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.
Both groups engage in a wide variety of unlawful and lawful activities, and were designated “foreign terrorist organizations” under the act in 1997, a designation which continues to this day.
The plaintiffs wanted to offer legal expertise and training to the groups on the topics of negotiation and how to utilize humanitarian and international law to their benefit. They also sought to advocate politically on behalf of Kurds in Turkey and Tamils in Sri Lanka.
Collins agreed with the plaintiffs that some of the act’s prohibitions were vague, and for the next six years the case bounced between the courts until an en banc panel of the Ninth Circuit vacated the judgment and sent the case back to Collins because Congress had enacted a number of amendments to the act in the intervening years.
On remand, Collins ruled that the amended act’s prohibitions on providing “training” and “service” were unconstitutionally vague, and that its prohibition on providing “expert advice and assistance” was vague insofar as it referred to offering “other specialized knowledge.” However, she ruled that neither the amended act’s prohibition on providing “expert advice and assistance” via “scientific” or “technical” knowledge, nor its amended prohibition on providing “personnel,” were vague.
Writing for the Ninth Circuit, Pregerson agreed. He noted that an ordinary person would not understand what was forbidden by the prohibitions on “training” and “service,” or by the prohibition on “expert advice and assistance” by way of “other specialized knowledge.” He also noted that the terms could still be read to include speech and advocacy protected by the First Amendment.
Pregerson further agreed with Collins that the remainder of the prohibitions on providing scientific or technical knowledge, and the prohibition on providing personnel, had been sufficiently amended to provide fair notice of prohibited conduct to a person of ordinary intelligence and to not punish protected speech.
In a separate part of the opinion, Pregerson wrote that Congress’ amendment of the act to require that the government show that a defendant provided material support or resources “knowingly” satisfied the Fifth Amendment’s requirement of “personal guilt,” or mens rea, and rejected plaintiffs’ argument that the government was required to show a specific intent by the defendant to further an organization’s terrorist activity.
He also swept aside the plaintiffs’ argument that the act was facially overbroad, noting that it was aimed at stopping aid to terrorist groups, not expressive conduct, and did not cover a substantial amount of protected speech.
Pregerson also wrote that the provisions of the act giving the secretary of state discretion to approve activities that would otherwise constitute providing “material support or resources” was not an unconstitutional licensing scheme because there was little likelihood that the act would pose a real or substantial threat to the plaintiffs’ conduct without the vague portions.
A spokesperson for the U.S. Department of Justice said that attorneys were reviewing the decision, but that the department had no comment on the decision.
Plaintiffs’ attorney Carol A. Sobel told the MetNews that her clients were pleased with the decision, particularly as it distinguished between general and specialized knowledge. She also pointed out that Congress’ changes to the act had been driven by her clients’ victories, remarking that “every time we win, the government changes the law.”
Pregerson was joined in his opinion by Judges Sidney R. Thomas and Johnnie B. Rawlinson,
The case is Humanitarian Law Project v. Mukasey, No. 05-56753.
Copyright 2007, Metropolitan News Company