Humanitarian Law Project v. Mukasey
| Decision Date | 10 December 2007 |
| Docket Number | No. 05-56753.,No. 05-56846.,05-56753.,05-56846. |
| Citation | 552 F.3d 916 |
| Parties | HUMANITARIAN 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, Dr., Plaintiffs-Appellees, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, of the United States; United States Department of Justice; Condoleeza Rice, Secretary of State; United States Department of State, Defendants-Appellants. Humanitarian 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, Dr., Plaintiffs-Appellants, v. Michael B. Mukasey,<SMALL><SUP>*</SUP></SMALL> Attorney General, of the United States; United States Department of Justice; Condoleeza Rice, Secretary of State; United States Department of State, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. Nos. CV-98-01971-ABC, CV-03-06107-ABC.
Before HARRY PREGERSON, SIDNEY R. THOMAS, and JOHNNIE B. RAWLINSON, Circuit Judges.
The opinion filed in this case on December 10, 2007, slip op. at 16135, 509 F.3d 1122 is hereby amended as follows:
At slip op. 16157, line 12: 509 F.3d at 1134, at the end of the paragraph, add the following footnote:
The issue of a facial vagueness challenge is not before this court. We therefore do not reach that issue.
At slip op. 16160, line 10: 509 F.3d at 1136, at the end of the paragraph, add the following footnote:
Whether the outcome would be different if evidence were presented showing that "service" rendered to a designated foreign terrorist organization resulted in the receipt of money by the designated foreign terrorist organization itself is not an issue presented by this case. We therefore do not reach that issue.
With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of these amendments and of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed. R.App. P. 35.) Future petitions for panel rehearing and future petitions for rehearing en banc will not be entertained.
The petition for panel rehearing and the petition for rehearing en banc are DENIED.
We are once again called upon to decide the constitutionality of sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act ("IRTPA").
Section 302(a) of AEDPA, Pub.L. 104-132, 110 Stat. 1214 (1996), codified in 8 U.S.C. § 1189, authorizes the Secretary of State (the "Secretary") to designate a group as a "foreign terrorist organization." Section 303(a) makes it a crime for anyone to provide support to even the nonviolent activities of the designated organization. See 18 U.S.C. § 2339B(a). Specifically, 8 U.S.C. § 1189(a)(1) authorizes the Secretary of State
to 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).
The pertinent facts may be found in prior published decisions in this case. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) ("HLP I"), cert. denied, 532 U.S. 904, 121 S.Ct. 1226, 149 L.Ed.2d 136 (2001); see also Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir.2003) ("HLP II"), vacated, 393 F.3d 902 (9th Cir.2004). We, therefore, set forth only a brief overview of the facts of this case.
Plaintiffs are six organizations, a retired federal administrative law judge, and a surgeon. The Kurdistan Workers Party, a.k.a Partiya Karkeran Kurdistan ("PKK"), and the Liberation Tigers of Tamil Eelam ("LTTE") engage in a wide variety of unlawful and lawful activities. Plaintiffs seek to provide support only to nonviolent and lawful activities of PKK and LTTE. This support would help Kurds living in Turkey and Tamils living in Tamil Eelam in the Northern and Eastern provinces of Sri Lanka to achieve self-determination.1
On October 8, 1997, the Secretary of State designated PKK, LTTE, and twenty-eight other foreign organizations as "foreign terrorist organizations." See 62 Fed. Reg. 52, 650, 52,650-51 (Oct. 8, 1997). To this day, both PKK and LTTE remain on the designated foreign terrorist organization list. Plaintiffs, fearing that they would be criminally investigated, prosecuted, and convicted under section 2339B(a), have been withholding their support for the PKK and LTTE from the time they were designated as foreign terrorist organizations.
On March 19, 1998, Plaintiffs filed a complaint in the district court (CV-98-01971-ABC; appeal No. 05-56753), alleging that AEDPA violated their First and Fifth Amendment rights. Plaintiffs sought a preliminary injunction to bar the government from enforcing against them AEDPA's prohibition against providing "material support or resources" to PKK and LTTE. In support of their motion for a preliminary injunction, Plaintiffs argued: (1) that AEDPA violated their First Amendment right to freedom of association and their Fifth Amendment right to due process because section 2339B(a) imposed a criminal penalty for their association with the designated organizations without requiring the government to prove that Plaintiffs had the specific intent to further the designated organizations' unlawful goals; (2) that AEDPA violated their First Amendment right to association by prohibiting them from making political contributions to the designated organizations; and (3) that AEDPA violated their First and Fifth Amendment rights because it gave the Secretary of State unfettered licensing power to designate a group as a foreign terrorist organization.
In June 1998, the district court partially granted Plaintiffs' motion for a preliminary injunction and enjoined the Attorney General's enforcement of AEDPA with respect to its prohibition on providing "training" and "personnel" to PKK and LTTE. See Humanitarian Law Project v. Reno, 9 F.Supp.2d 1205, 1215 (C.D.Cal.1998) ("DCHLP I"). The district court held that "Plaintiffs have demonstrated a probability of success on their claim that the terms `personnel' and `training' are impermissibly vague." Id. The district court rejected the remainder of Plaintiffs' challenges, holding that AEDPA's prohibition on providing "material support or resources" to designated foreign terrorist organizations is a "content-neutral limitation on Plaintiffs' right to freedom of association" and "is subject to an intermediate scrutiny level of review." Id. at 1212. The district court also held that "AEDPA does not impose `guilt by association alone' in violation of the First Amendment because the AEDPA only limits the permissible ways in which Plaintiffs can associate with PKK and LTTE." Id. (emphasis in the original). In other words, the district court held that AEDPA does not criminalize mere membership. Rather, AEDPA criminalizes conduct that provides "material support or resources" to a designated foreign terrorist organization. Finally, the district court held that Plaintiffs failed to establish a probability of success on their claim that AEDPA affords the Secretary of State unfettered discretion to designate a group as a foreign terrorist organization. See id. at 1213.
Both parties appealed the district court's order. On March 3, 2000, we affirmed the district court. See HLP I. In HLP I, we determined that AEDPA section 2339B is a content-neutral regulation of conduct subject to intermediate scrutiny. See id. at 1135. Further, we rejected Plaintiffs's licensing scheme argument and held that the discretion accorded to the Secretary of State to designate a group as a foreign terrorist organization is not "unfettered" "because the regulation involves the conduct of foreign affairs" for which the courts "owe the executive branch even more latitude." Id. at 1137. Finally, we agreed with Plaintiffs that AEDPA's prohibitions on providing "personnel" and "training" to designated foreign terrorist organizations were unconstitutionally vague because these prohibitions could be read to criminalize conduct protected by the First Amendment. See id. at 1137-38.
After the case went back to the district court, the government moved to dismiss and both parties sought summary judgment in their favor. The district court re-affirmed its prior decision in an unpublished order. See Humanitarian Law Project v. Reno, No. CV 98-01971 ABC, 2001 WL 36105333, 2001 U.S. Dist. LEXIS 16729 (C.D.Cal. Oct. 3, 2001). The district court entered a permanent injunction against enforcing AEDPA's prohibition on providing "personnel" and "training" to designated organizations. See id. 2001 WL 36105333 at *12-13, 2001...
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