Humanitarian Law Proj v. U.S. Dept. Justice

Decision Date03 December 2003
Docket NumberNo. 02-55083.,No. 02-55082.,02-55082.,02-55083.
Citation352 F.3d 382
PartiesHUMANITARIAN LAW PROJECT; Ralph Fertig; Ilankai Thamil Sangam; Tamils of Northern California; Tamil Welfare and Human Rights Committee; Federation of Tamil Sangams of North America; World Tamil Coordinating Committee; Nagalingam Jeyalingam, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF JUSTICE; United States Department of State; John Ashcroft, Attorney General; Colin L. Powell, Secretary of State, Defendants-Appellees. Humanitarian Law Project; Ralph Fertig; Ilankai Thamil Sangam; Tamils of Northern California; Tamil Welfare & Human Rights Committee; Federation of Tamil Sangams of North America; World Tamil Coordinating Committee; Nagalingam Jeyalingam, Plaintiffs-Appellees, v. United States Department of Justice; United States Department of State; John Ashcroft, Attorney General; Colin L. Powell, Secretary of State, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

David Cole, c/o Georgetown University Law Center, Washington, D.C., Nancy Chang, Center for Constitutional Rights, New York, NY, Paul L. Hoffman, Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP, Venice CA, Carol A. Sobel, Santa Monica, CA, Visuvanathan Rudrakumaran, New York, NY, for plaintiffs-appellants/cross-appellees.

Douglas N. Letter, U.S. Department of Justice, Washington, D.C., for defendants-appellees/cross-appellants.

Appeal from the United States District Court for the Central District of California Audrey B. Collins, District Judge, Presiding.

Before: PREGERSON, THOMAS, and RAWLINSON, Circuit Judges.

Opinion by Judge Pregerson; Dissent by Judge Rawlinson.

OPINION

PREGERSON, Circuit Judge.

In 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Two provisions of AEDPA, section 302 and section 303, codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, authorize the Secretary of State ("Secretary") to designate an organization as a "foreign terrorist organization," and make it a crime with a maximum penalty of life in prison for a person to provide "material support or resources" [hereinafter "material support"] to a designated organization, respectively. This case addresses the question whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization's unlawful activities leading to its designation.

Plaintiffs are legal and social service organizations and two individuals who seek to provide "material support" to the non-violent humanitarian and political activities of Kurdish and Tamil organizations the Secretary designated as "foreign terrorist organizations." Each of the plaintiffs has a history of donating money and services to support the designated organizations' humanitarian work, which assists refugees and ethnic minorities displaced by decades of conflict in securing the basic necessities for human life. Plaintiffs no longer provide such support in fear of criminal sanctions under 18 U.S.C. § 2339B.

Except for a recently asserted Fifth Amendment due process claim, this is the second time that the constitutional issues raised by plaintiffs are before us. In 2000, we decided Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000), cert. denied, 532 U.S. 904 (2001) ("Humanitarian Law Project II"). In that case, we affirmed the district court's partial grant and partial denial of the plaintiffs' motion for a preliminary injunction in Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176, 1205 (C.D.Cal.1998) ("Humanitarian Law Project I"). We agreed with the district court that 18 U.S.C. § 2339B did not violate the First Amendment by allegedly imposing guilt by association and restricting symbolic speech. We also rejected, as did the district court, the plaintiffs' argument that the designation process set forth in 8 U.S.C. § 1189 ran afoul of the First and Fifth Amendments by granting the Secretary overbroad discretion to designate organizations as "foreign terrorist organizations." In addition, we affirmed the district court's partial grant of preliminary injunctive relief that restrained the government's enforcement of two terms included in the definition of "material support," found in 18 U.S.C. § 2339A, i.e., "personnel" and "training." On remand, the district court reaffirmed its prior rulings and issued a permanent injunction that restrained the government from enforcing 18 U.S.C. § 2339B against plaintiffs were they to provide material support in the form of "training" and "personnel" to designated organizations. The government appeals and plaintiffs cross-appeal.

We hold that Humanitarian Law Project II is the law of the case; therefore, we decline to revisit the plaintiffs' constitutional challenges to 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, that we previously resolved. We will, however, address plaintiffs' recently asserted Fifth Amendment due process challenge on this appeal, and hold that 18 U.S.C. § 2339B, by not requiring proof of personal guilt, raises serious Fifth Amendment due process concerns. But we conclude that there is no need to address those constitutional concerns because we construe 18 U.S.C. § 2339B to require proof that a person charged with violating the statute had knowledge of the organization's designation or knowledge of the unlawful activities that caused it to be so designated. In addition, we reaffirm our decision in Humanitarian Law Project II that the prohibition on providing "training" and "personnel" in § 2339B is impermissibly overbroad, and thus void for vagueness under the First and Fifth Amendments.

The Statutory Scheme

Following the tragic 1995 bombing of the Murrah Federal Building in Oklahoma City, President Clinton on April 29, 1996 signed into law the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). At issue in this appeal is the constitutionality of sections 302 and 303 of AEDPA, codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B. Section 1189 empowers the Secretary to designate an organization as a "foreign terrorist organization" ("designated organization"). Section 2339B(a) makes it a crime for anyone to provide "material support" and resources to a designated organization.

Section 1189 grants the Secretary unique powers to designate an organization as a foreign terrorist organization. Under 8 U.S.C. § 1189(a)(1), the Secretary of State can designate an organization as 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 or the national security of the United States." 8 U.S.C. § 1189(a)(1).1 At no time during the designation process is the Secretary required to notify an organization that it is being considered for designation as a foreign terrorist organization. Nor does the statute require the Secretary to afford an organization the opportunity to submit or review evidence on its behalf during the designation process.2 Instead, the Secretary independently compiles an "administrative record" in which "findings" are made as to whether an organization is to be designated as a foreign terrorist organization under § 1189(a)(1). 8 U.S.C. § 1189(a)(2)(A)(i), (3)(A). The Secretary is authorized to base the designation on "classified information," which is unavailable for review by the designated organization.3 8 U.S.C. § 1189(a)(3)(B).

Seven days before the Secretary intends to designate an organization as a foreign terrorist organization he or she must notify by "classified communication" key Congressional leaders and committee members. 8 U.S.C. § 1189(a)(2)(A)(i). The Secretary must then publish the designation in the Federal Register. 8 U.S.C § 1189(a)(2)(A)(ii). The Secretary is not obligated under the statute to notify directly the designated organization. If an organization learns of its designation from the Federal Register and wishes to challenge its designation, it has thirty days after publication in the Federal Register to appeal its designation to the United States Court of Appeals for the District of Columbia Circuit. 8 U.S.C. § 1189(b)(1). The D.C. Circuit's review is limited only to the administrative record, except that the government may submit, for ex parte and in camera review, the classified information used in making the designation. Under the statute, the designated organization is not permitted to submit any evidence on its behalf to the reviewing court because the court's review of the designation is to be based solely on the administrative record and the classified information the government submits to support its decision.4 8 U.S.C. § 1189(b)(2).

The consequences of designation under 8 U.S.C. § 1189 are severe and take effect immediately upon the Secretary's publication in the Federal Register of an organization's designation as a foreign terrorist organization. Nat'l Council of Resistance of Iran, 251 F.3d at 196 (discussing "dire" legal consequences flowing from the Secretary's designation of an organization as a foreign terrorist organization). Representatives and members of designated organizations are forbidden from admission into the United States. 8 U.S.C. § 1182(a)(3)(B)(i). The Secretary of the Treasury may freeze all of the designated organization's assets located in the United States. 8 U.S.C. § 1189(a)(2)(C). In addition, except as authorized by the Secretary, financial institutions are independently required to freeze all assets of designated organizations. 18 U.S.C. § 2339B(a)(2).

At issue in this case is 18 U.S.C. § 2339B, which makes it a crime punishable for up to life...

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