Humanitarian Law Project v. Ashcroft

• Decision Date: 17 March 2004
• Docket Number: No. CV03-6107 ABC(MCX).,CV03-6107 ABC(MCX).
• Citation: 309 F.Supp.2d 1185
• Parties: HUMANITARIAN LAW PROJECT, et al., Plaintiffs, v. John ASHCROFT, et al., Defendants.
• Court: U.S. District Court — Central District of California

309 F.Supp.2d 1185

HUMANITARIAN LAW PROJECT, et al., Plaintiffs, v. John ASHCROFT, et al., Defendants.

No. CV03-6107 ABC(MCX).

United States District Court, C.D. California.

March 17, 2004.

COPYRIGHT MATERIAL OMITTED

Nancy Chung, Esq.; Center for Constitutional Rights, New York City, David Cole, Esq., Center for Constitutional Rights, Washington, DC, Paul Hoffman, Esq., Venice, CA, Visuvanathan Rudrakumaran, Esq., New York City, Carol Sobel, Esq., Santa Monica, CA, for Plaintiffs.

Sandra Schraibman, Esq.; John Tyler, Esq., U.S. Dept. of Justice, Washington, D.C., for Defendants.

AMENDED

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

COLLINS, District Judge.

This action involves a challenge to the constitutionality of § 805(a)(2)(B) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act") and §§ 302 and 303 of the Antiterrorism and Effective Death Penalty Act (the "AEDPA") which prohibit the provision of material support, including "expert advice or assistance," to designated foreign terrorist organizations. See § 805(a)(2)(B), 18 U.S.C. §§ 2339A(a) and 2339B(a). Plaintiffs seek to provide support for the lawful activities of two organizations that have been designated as "foreign terrorist organizations." Plaintiffs seek summary judgment and an injunction to prohibit Defendants from enforcing the criminal prohibition on providing "expert advice or assistance" to such organizations on the ground that, like the prohibitions on providing "training" and "personnel," which the Court previously enjoined, the prohibition is unconstitutionally vague and overbroad. See Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176 (C.D.Cal.1998) (granting Plaintiffs' motion for preliminary injunction), aff'd, 205 F.3d 1130 (9th Cir.2000) and Humanitarian Law Project v. Reno, No CV 98-1971 ABC (BQRx), 2001 U.S. Dist. LEXIS 16729 (C.D.Cal.2001) (granting in part and denying in part Plaintiffs' motion for summary judgment and denying Defendants' motion to dismiss), aff'd in part and rev'd in part, 352 F.3d 382 (9th Cir.2003) (hereinafter referred to as HLP I).

Plaintiffs HUMANITARIAN LAW PROJECT, RALPH FERTIG, ILANKAI THAMIL SANGAM, DR. NAGALINGAM JEYALINGAM, WORLD TAMIL COORDINATING COMMITTEE, FEDERATION OF TAMIL SANGAMS OF NORTH AMERICA and TAMIL WELFARE AND HUMAN RIGHTS COMMITTEE (collectively, "Plaintiffs") now bring a Motion for Summary Judgment, and Defendants JOHN ASCHROFT (in his official capacity as United States Attorney General), the UNITED STATES' DEPARTMENT OF JUSTICE, COLIN POWELL (in his official capacity as Secretary of the Department of State) and the UNITED STATES DEPARTMENT OF STATE (collectively, "Defendants") bring a Motion to Dismiss. The Court found the motions appropriate for submission without oral argument. See Fed.R.Civ.P. 78; Local R. 7-15. Accordingly, the scheduled hearing date of January 12, 2004 was VACATED. After reviewing the materials submitted by the parties and the case file, the Court DENIES Defendants' motion to dismiss and GRANTS IN PART and DENIES IN PART Plaintiffs' motion for summary judgment.

I. FACTUAL BACKGROUND

A. The Regulatory Scheme

On October 26, 2001, Congress enacted the USA PATRIOT Act, which broadened the AEDPA's definition of "material support or resources" to add as a proscribed act the provision of "expert advice or assistance." As discussed in detail in HLP I, the AEDPA permits the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate an organization as a foreign terrorist organization after making certain findings as to the organization's involvement in terrorist activity. See 8 U.S.C. § 1189(a)(1). "Terrorist activity" is defined 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).

Section 303 of the AEDPA, as modified by Section 810 of the USA PATRIOT Act, 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 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). "Material support or resources" is defined as "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, transportation, and other physical assets, except medicine or religious materials." Id. § 2339A(b) (emphasis added).

B. The Secretary's Designation

On October 8, 1997, then Secretary of State Madeline Albright 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").

C. The Plaintiffs

Plaintiffs are five organizations and two United States citizens. Plaintiffs seek to provide support to the lawful, nonviolent 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, their members and individuals associated with the organizational Plaintiffs have not provided such support, fearing criminal investigation, prosecution and conviction.

1. The PKK and the Plaintiffs that Support It

The PKK, the leading political organization representing the interests of the Kurds in Turkey, was formed approximately 25 years ago with the goal of achieving self-determination for the Kurds in Southeastern Turkey. It is comprised primarily of Turkish Kurds. Plaintiffs allege that for more than 75 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 both inside and outside Turkey, providing social services and humanitarian aid to Kurdish refugees and engaging in military combat with Turkish armed forces in accordance with the Geneva Convention and Protocols.

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 and providing training, expert advice and other forms of support to 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 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 courts for being members or supporters of the PKK. In addition, the HLP, Judge Fertig, and other individuals associated with the HLP have provided training to some PKK members and other Kurds in using humanitarian law and international human rights law and in seeking a peaceful resolution of the conflict in Turkey. Both the HLP and Judge Fertig only support the PKK in its non-violent and lawful activities.

Since the Secretary designated the PKK as a foreign...