Humanitarian Law Project v. U.S. Deft. of Treasury

• Decision Date: 21 November 2006
• Docket Number: No. CV 05-8047 ABC (RMCX).,CV 05-8047 ABC (RMCX).
• Citation: 463 F.Supp.2d 1049
• Parties: HUMANITARIAN LAW PROJECT, et al. Plaintiffs, v. UNITED STATES DEPARTMENT OF TREASURY, et al. Defendants.
• Court: U.S. District Court — Central District of California

Page 1049

463 F.Supp.2d 1049

HUMANITARIAN LAW PROJECT, et al. Plaintiffs, v. UNITED STATES DEPARTMENT OF TREASURY, et al. Defendants.

No. CV 05-8047 ABC (RMCX).

United States District Court, C.D. California.

November 21, 2006.

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David Cole, Center For Constitutional Rights, Washington, DC, for Humanitarian Law Project, Tamil Welfare and Human Rights Committee, World Tamil Coordinating Committee, Ilankai Thamil Sangam, Nagalingam Jeyalingam, Ralph D Fertig, Plaintiffs.

Paul L Hoffman, Schonbrun DeSimone Seplow Harris and Hoffman, Venice, for Humanitarian Law Project, Tamil Welfare and Human Rights Committee, World Tamil Coordinating Committee, Ilankai Thamil Sangam, Nagalingam Jeyalingam, Ralph D Fertig, Plaintiffs.

Shayana Devendra Kadidal, Center for Constitutional Rights, New York, NY, for Humanitarian Law Project, Tamil Welfare and Human Rights Committee, World Tamil Coordinating Committee, Ilankai Thamil Sangam, Nagalingam Jeyalingam, Ralph D Fertig, Plaintiffs.

Visuvanathan Rudrakumaran, Visuvanathan Rudrakumaran Law Offices, New York, NY, for Humanitarian Law Project, Tamil Welfare and Human Rights Committee, World Tamil Coordinating Committee, Ilankai Thamil Sangam, Nagalingam Jeyalingam, Ralph D Fertig, Plaintiffs.

Carol A Sobel, Carol A Sobel Law Offices, Santa Monica, CA, for Humanitarian

Law Project, Tamil Welfare and Human Rights Committee, World Tamil Coordinating Committee, Ilankai Thamil Sangam, Nagalingam Jeyalingam, Ralph D Fertig, Plaintiffs.

John Russell Tyler, U.S. Department of Justice, Civil Division, Washington, DC, for United States Department of Justice, United States Department of State, United States Department of the Treasury, Alberto Gonzales, Condoleeza Rice, John Snow, Defendants.

ORDER RE: PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION TO DISMISS AND CROSS — MOTION FOR SUMMARY JUDGMENT

COLLINS, District Judge.

Pending before the Court are Plaintiffs' Motion for Summary Judgment and Defendants' Motion to Dismiss and Cross — Motion for Summary Judgment. The parties' Motions came on for hearing on July 26, 2006. Having considered the parties' submissions, the case file, and counsels' arguments, the Court GRANTS in part and DENIES in part Plaintiffs' Motion, and GRANTS in part and DENIES in part Defendants' Motion to Dismiss and Cross — Motion for Summary Judgment.

BACKGROUND

This case is the latest in a series of challenges that Plaintiffs have raised to measures taken by the Federal Government in the wake of the September 11, 2001 attacks on this Country. Plaintiffs are five organizations and two United States citizens seeking to provide support to the lawful, nonviolent activities of the Partiya Karkeran Kurdistan (Kurdistan Workers' Party) ("PKK") and the Liberation Tigers of Tamil Eelam ("LTTE"). The PKK and the LTTE have been designated as foreign terrorist organizations.

The PKK is a political organization representing the interests of the Kurds in Turkey, with the goal of achieving self-determination for the Kurds in Southeastern Turkey. Plaintiffs allege that the Turkish government has subjected the Kurds to human rights abuses and discrimination for decades. The PKK's efforts on behalf of the Kurds include political organizing and advocacy, providing social services and humanitarian aid to Kurdish refugees, and engaging in military combat with Turkish armed forces.

The LTTE represents the interests of Tamils in Sri Lanka, with the goal of achieving self-determination for the Tamil residents of Tamil Eelam in the Northern and Eastern provinces of Sri Lanka. Plaintiffs allege that the Tamils constitute an ethnic group that has for decades been subjected to human rights abuses and discriminatory treatment by the Sinhalese, who have governed Sri Lanka since the nation gained its independence in 1948. The LTTE's activities include political organizing and advocacy, providing social services and humanitarian aid, defending the Tamil people from human rights abuses, and using military force against the government of Sri Lanka.

Plaintiffs seek to aid the PKK and the LTTE in the following ways: (1) they seek to provide training in human rights advocacy and peacemaking negotiations, as well as to provide legal services in aid of setting up institutions for providing humanitarian aid and in negotiating a peace agreement; (2) they seek to provide humanitarian aid directly to the PKK and LTTE; (3) they seek to provide engineering services and technological support to help rebuild the infrastructure in tsunami-afflicted areas; and (4) they seek to provide psychiatric counseling for survivors of the tsunami.

In the past, Plaintiffs have directed their challenges to the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), as enacted by Congress in 1996 and amended by the USA PATRIOT Act and the IRTPA.¹ The AEDPA, as amended by the IRTPA, provides as follows:

Whoever 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 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.

18 U.S.C. § 2339B(a). The AEDPA, as amended by the USA PATRIOT Act and the IRTPA, provides the following definition of "material support or resources":

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.

18 U.S.C. § 2339A(b)(1).

In this case, however, Plaintiffs for the first time challenge Executive Order 13224, signed by President George W. Bush on September 23, 2001 pursuant to the emergency powers vested in him by the International Emergency Economic Powers Act ("IEEPA"). Below, the Court summarizes the statutory framework of the IEEPA and the relevant provisions of Executive Order 13224 and its Regulations.

A. IEEPA

In 1977, Congress enacted the IEEPA to amend the Trading With the Enemy Act ("TWEA"). The TWEA, which was enacted in 1917 and amended in 1933, granted the President "broad authority" to "investigate, regulate ... prevent or prohibit ... transactions" in times of war or declared emergencies. 50 U.S.C. app. § 5(b).

With the 1977 IEEPA, Congress limited the TWEA's applicability to times of war, but provided the President similar emergency economic power in peacetime national emergencies. The IEEPA authorizes the President to declare a national emergency "to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." 50 U.S.C. § 1701(a). Under this authority, the President may take the following actions:

[I]nvestigate, block during the pendency of an investigation, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property in which any foreign country or a rational thereof has any interest by any person, or with respect to any property, subject to the jurisdiction of the United States ....

50 U.S.C. § 1702(a)(1)(B). Although the President's authority under the IEEPA is broad, he can only exercise this authority to deal with a declared emergency that constitutes an "unusual and extraordinary threat." 35 U.S.C. § 1701(b). The IEEPA also authorizes the President to issue regulations in order to effectively exercise the authority granted him by § 1701 and § 1702 of the IEEPA.

B. Executive Order 13224

Days after the September 11, 2001 attacks, President Bush invoked his authority under the IEEPA and issued Executive Order 13224 (the "EO"). In the E0, President Bush declared that the "grave acts of terrorism" and the "continuing and immediate threat of future attacks" on the United States constituted a national emergency.

President Bush further blocked all property and interests in property of twentyseven groups and individuals, each of which President Bush designated as specially designated global terrorists ("SDGT"). These twenty-seven groups and individuals are identified in the Annex to the EO. Thereafter, he authorized the secretary of the treasury, in consultation with the secretary of state and the attorney general, to designate additional SDGTs provided that the given individual or group to be designated satisfied the criteria set forth in the EO. See EO § 1(b)(d)(ii). In summary, President Bush authorized the secretary of the treasury to designate as an SDGT anyone acting "for or on behalf of or "owned or controlled by" a designated terrorist group. EO § 1(b)-(c). The secretary of the treasury was also authorized to designate anyone who assists, sponsors, or provides "... services to" or is "otherwise associated with" a designated terrorist group. EO § 1 (d)(i)-(ii).

Furthermore, President Bush delegated to the secretary of the treasury his authority to issue any regulations that "may be necessary to carry out the purposes of [the EO]." EO § 7. Accordingly, the Office of Foreign Assets Control ("OFAC") issued a series of regulations accompanying the EO (the "Regulations"). Among these Regulations is a provision permitting individuals and groups to obtain a license to engage in otherwise prohibited transactions with SDGTs. Furthermore, the Regulations allow a designated individual or group to seek administrative review of any designation made pursuant to the...