Humanitarian Law Project v. Reno

• Citation: 9 F.Supp.2d 1176
• Decision Date: 08 June 1998
• Docket Number: No. CV 98-1971 ABC(BQRX).,CV 98-1971 ABC(BQRX).
• Court: U.S. District Court — Central District of California
• Parties: HUMANITARIAN LAW PROJECT, et al., Plaintiffs, v. Janet RENO, as Attorney General of the United States, et al., Defendants.

Page 1176

9 F.Supp.2d 1176

HUMANITARIAN LAW PROJECT, et al., Plaintiffs, v. Janet RENO, as Attorney General of the United States, et al., Defendants.

No. CV 98-1971 ABC(BQRX).

United States District Court, C.D. California.

June 8, 1998.

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COPYRIGHT MATERIAL OMITTED

David Cole, Georgetown University Law Center, Washington, DC, Nancy Chang, Center for Constitutional Rights, New York, NY, Paul Hoffman, Carol Sobel, Center for Constitutional Rights, Santa Monica, CA, Visuvanathan Rudrakumaran, New York, NY, for Plaintiff/Petitioner/Appellant.

Frank W. Munger, Assistant Attorney General, David J. Anderson, John R. Tyler, Martha E. Rubio, Department of Justice, Civil Division, Los Angeles, CA, for Defendant/Respondent/Appellee.

ORDER RE: PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

COLLINS, District Judge.

The Motion for Preliminary Injunction of Plaintiffs 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, and NAGALINGAM JEYALINGAM came on regularly for hearing before this Court on June 8, 1998. After reviewing the materials submitted by the parties, argument of counsel, and the case file, the Court GRANTS in part, and DENIES in part, Plaintiffs' motion.

I. Factual Background

This action involves a challenge to the constitutionality of § 302 and § 303 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, respectively.

The Regulatory Scheme

President Clinton signed the AEDPA into law on April 24, 1996. Section 302 of the AEDPA permits the Secretary of State (the "Secretary"), in consultation with the Secretary of the Treasury and the Attorney General, "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 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 AEDPA defines "terrorist activity" as "an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time." 8 U.S.C. § 1182(a)(3)(B)(iii). "National security" is defined as "the national defense, foreign relations, or economic interests of the United States." 8 U.S.C. § 1189(c)(2).

Prior to designating an organization as a foreign terrorist organization, the Secretary must notify specified members of Congress. See 8 U.S.C. § 1189(a)(2)(A). Seven days thereafter, the Secretary must publish the designation in the Federal Register. See id. The designation is effective upon publication. See id. § 1189(a)(2)(B).

A group designated as a foreign terrorist organization may seek judicial review of the Secretary's designation by filing an action in the United States Court of Appeals for the District of Columbia within 30 days of the published designation. 8 U.S.C. § 1189(b)(1). Any review "shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation." Id. § 1189(b)(2). Section 1189 sets forth certain circumstances wherein the Court of Appeals may set aside the Secretary's designation. See id. § 1189(b)(3). In addition to the Court of Appeals setting aside a designation, a group may cease to be designated as a foreign terrorist organization if: (1) the Secretary fails to renew the designation after two years, see id. § 1189(a)(4)(B); (2) Congress blocks or revokes a designation, see id. § 1189(a)(5); or (3) the Secretary revokes the designation based on a finding that changed circumstances or national security warrants such a revocation. See id. § 1189(a)(6)(A).

Section 303 of the AEDPA provides: "Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both." 18 U.S.C. § 2339B(a). The AEDPA defines the term "material support or resources" as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." Id. § 2339A(b) (emphases added).

The Secretary's Designation

On October 8, 1997, the Secretary designated 30 organizations as "foreign terrorist organizations" under the AEDPA. See 62 Fed.Reg. 52,649-51. The designated organizations included the Kurdistan Workers' Party, a.k.a. Partiya Karkeran Kurdistan, a.k.a. PKK ("PKK") and the Liberation Tigers of Tamil Eelam, a.k.a. LTTE, a.k.a. Tamil Tigers, a.k.a. Ellalan Force ("LTTE"). On November 6, 1997, the LTTE sought judicial review of the Secretary's designation. To date, the Court of Appeals has not rendered a decision. The PKK did not seek judicial review of the designation.

The Plaintiffs

Plaintiffs are six organizations and two United States citizens. Plaintiffs seek to provide support to the humanitarian and political activities of the PKK and the LTTE. Since October 8, 1997, the date on which the Secretary designated the PKK and the LTTE as foreign terrorist organizations, Plaintiffs and their members and individuals associated with the organizational Plaintiffs have not provided such support, fearing criminal investigation, prosecution, and conviction.

The PKK and the Plaintiffs That Support it

The PKK was formed approximately 20 years ago with the goal of achieving self-determination for the Kurds in Southeastern Turkey. It is comprised primarily of Turkish Kurds. The PKK is the leading political organization representing the interests of the Kurds in Turkey. Plaintiffs allege that for more than 70 years, the Turkish government has subjected the Kurds to human rights abuses and discrimination. The PKK's efforts on behalf of the Kurds include political organizing and advocacy and diplomatic activity around the world. It organizes political forums, international conferences, and cultural festivals outside Turkey to bring attention to the plight of the Kurds there. It publishes and distributes newspapers and pamphlets championing the Kurds' cause and denouncing human right violations. It provides social services and humanitarian aid to Kurds in exile, has established a quasi-governmental structure in areas of Turkey under its control, and defends the Kurds from alleged Turkish human rights abuses.

Two Plaintiffs, Humanitarian Law Project ("HLP") and Administrative Judge Ralph Fertig,¹ HLP's President, seek to support the PKK's peaceful and non-violent activities. The HLP, a not-for-profit organization headquartered in Los Angeles, is dedicated to furthering international compliance with humanitarian law and human rights law and the peaceful resolution of armed conflicts.²

The HLP has consultative status to the United Nations ("UN") as a non-governmental organization and regularly participates in meetings of the UN Commission on Human Rights in Geneva, Switzerland. The HLP conducts fact-finding missions, writes and publishes reports, and works for the peaceful resolution of armed conflicts around the world.

Judge Fertig has a career of over 50 years in human rights work. He has been a member of the HLP's Board of Directors since 1989, serving as President from 1993 to 1995 and from 1997 to the present. He has participated in HLP delegations that have investigated alleged human rights violations in Turkey, Mexico, and El Salvador, has written reports for the HLP, and has trained others in the use of international human rights law and other lawful means for the peaceful resolution of disputes.

Since 1991, the HLP and Judge Fertig have devoted substantial time and resources advocating on behalf of the Kurds living in Turkey and working with the PKK. Judge Fertig and other individuals associated with the HLP have conducted fact-finding investigations on the Kurds in Turkey and have published reports and articles presenting their findings, which are supportive of the PKK and the struggle for Kurdish liberation. They assert that the Turkish government has committed extensive human rights violations against the Kurds, including the summary execution of more than 18,000 Kurds, the widespread use of arbitrary detentions and torture against persons who speak out for equal rights for Kurds or are suspected of sympathizing with those who do, and the wholesale destruction of some 2,400 Kurdish villages. Applying international law principles, they have concluded that the PKK is a party to an armed conflict governed by Geneva Conventions and Protocols and, therefore, is not a terrorist organization under international law.

To further peaceful resolutions of the armed conflict in Turkey and protect the human rights of the Kurds, the HLP, Judge Fertig, and other individuals associated with the HLP have worked with and supported the PKK in numerous ways. They have advocated for the political freedoms and human rights of the Kurds and the PKK before the UN Commission on Human Rights, and have urged the UN to extend to the PKK the protections of the Geneva Conventions and Protocols. They have petitioned members of Congress to support Kurdish human rights and to encourage negotiations between the PKK and the Turkish government. They have argued for the release of Leyla Zana, Hatip Dicle, Orhan Dogan, and Selim Sadak, four Kurds who were elected to the Turkish Parliament in 1991, but sentenced to 15 years in prison by the Turkish...