Humanitarian Law v. Reno

• Decision Date: 03 March 2000
• Docket Number: Nos. 98-56062,98-56280,s. 98-56062
• Citation: 205 F.3d 1130
• Parties: (9th Cir. 2000) 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, Plaintiffs-Appellants, v. JANET RENO, as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; MADELEINE K. ALBRIGHT, as United States Secretary of State; UNITED STATES DEPARTMENT OF STATE, Defendants-Appellees. 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; OPINION NAGALINGAM JEYALINGAM, Plaintiffs-Appellees, v. JANET RENO, as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; MADELEINE K. ALBRIGHT, as United States Secretary of State; UNITED STATES DEPARTMENT OF STATE, Defendants-Appellantss
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1130

205 F.3d 1130 (9th Cir. 2000)

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, Plaintiffs-Appellants, v. JANET RENO, as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; MADELEINE K. ALBRIGHT, as United States Secretary of State; UNITED STATES DEPARTMENT OF STATE, Defendants-Appellees.

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; OPINION NAGALINGAM JEYALINGAM, Plaintiffs-Appellees, v. JANET RENO, as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; MADELEINE K. ALBRIGHT, as United States Secretary of State; UNITED STATES DEPARTMENT OF STATE, Defendants-Appellantss.

Nos. 98-56062, 98-56280

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 1, 1999

Decided March 3, 2000

[Copyrighted Material Omitted]

COUNSEL: David Cole, Institute for Public Representation, Washington, D.C.,Paul Hoffman, Santa Monica, California, argued the cause for plaintiffs-appellants. With him on the briefs were Nancy Chang, Center for Constitutional Rights, New York, New York. Also on the briefs were Carol A. Sobel, Santa Monica, California for plaintiffappellant Tamils of Northern California and Visuvanathan Rudrakumaran, New York, New York, for plaintiffsappellants Tamils of Northern California and World Tamil Coordinating Committee.

Douglas N. Letter, United States Department of Justice, Civil Division, Washington, D.C., argued the cause for defendantsappellees. With him on the briefs were John R. Tyler, Martha Rubio and David Anderson.

Linda Dakin-Grimm, Chadbourne and Parke, Washington D.C. and Los Angeles, California, filed an amicus brief urging affirmance for the Anti-Defamation League. With her on the briefs were David M. Raim, Philip J. Goodman and Joy L. Langford.

Appeals from the United States District Court for the Central District of California. Audrey B. Collins, District Judge, Presiding D.C. No. CV-98-01971-ABC

Before: Dorothy W. Nelson, Alex Kozinski and Stephen S. Trott, Circuit Judges.

Opinion by Judge Kozinski

OPINION

KOZINSKI, Circuit Judge:

We consider whether Congress may, consistent with the First Amendment, prohibit contributions of material support to certain foreign terrorist organizations.

I

The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, known among the cognoscenti as AEDPA, 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 of the organization threatens

the security of United States nationals or the national security of the United States." AEDPA S 302(a), 110 Stat. at 1248 (codified at 8 U.S.C. S 1189(a)).

This provision has teeth. AEDPA decrees punishment by fine, imprisonment for up to 10 years or both on"[w]hoever, 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 . . . ." AEDPA S 303(a), 110 Stat. at 1250 (codified at 18 U.S.C. S 2339B(a)(1)). The phrase "material support or resources" is broadly defined 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." AEDPA S 323, 110 Stat. at 1255 (codified at 18 U.S.C. S 2339A(b)).

Pursuant to those guidelines, the Secretary had, as of October 1997, designated 30 organizations as foreign terrorist organizations. See Designation of Foreign Terrorist Organizations, 62 Fed. Reg. 52,650, 52,650-51 (1997). Two such entities are the Kurdistan Workers' Party ("PKK") and the Liberation Tigers of Tamil Eelam ("LTTE"). Plaintiffs, six organizations and two United States citizens, wish to provide what they fear would be considered material support to the PKK and LTTE. Plaintiffs claim that such support would be directed to aid only the nonviolent humanitarian and political activities of the designated organizations. Being prohibited from giving this support, they argue, infringes their associational rights under the First Amendment. Because the statute criminalizes the giving of material support to an organization regardless of whether the donor intends to further the organization's unlawful ends, plaintiffs claim it runs afoul of the rule set forth in cases such as NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982). That rule, as succinctly stated in Claiborne Hardware, is "[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims." Id. at 920. Plaintiffs further complain that AEDPA grants the Secretary unfettered and unreviewable authority to designate which groups are listed as foreign terrorist organizations, a violation of the First and Fifth Amendments. Lastly, plaintiffs maintain that AEDPA is unconstitutionally vague.

Plaintiffs sought a preliminary injunction barring enforcement of AEDPA against them. The district court denied the injunction, for the most part. See Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1176, 1204 (C.D. Cal. 1998). However, it agreed with plaintiffs that AEDPA was impermissibly vague, specifically in its prohibition on providing "personnel" and "training." The court therefore enjoined the enforcement of those prohibitions. See id. at 1204-05. Each side appeals its losses.

II

A. Plaintiffs try hard to characterize the statute as imposing guilt by association, which would make it unconstitutional under cases such as Claiborne Hardware. But Claiborne Hardware and similar cases address situations where people are punished "by reason of association alone," Claiborne Hardware, 458 U.S. at 920--in other words, merely for membership in a group or for espousing its views. AEDPA authorizes no such thing. The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. Plaintiffs are even free to praise the groups for using terrorism as a means of achieving their ends. What AEDPA prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions. Nor, of course, is there a right to provide resources with which terrorists can buy weapons and explosives.

B. Plaintiffs also insist that AEDPA is unconstitutional because it proscribes the giving of material support even if the donor does not have the specific intent to aid in the organization's unlawful purposes. They rely on American-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995) (ADC I), where we declared that "[t]he government must establish a `knowing affiliation' and a `specific intent to further those illegal aims' " in order to punish advocacy. Id. at 1063 (quoting Healy v. James, 408 U.S. 169, 186 (1972)). But advocacy is far different from making donations of material support. Advocacy is always protected under the First Amendment whereas making donations is protected only in certain contexts. See Section II.C. infra. Plaintiffs here do not contend they are prohibited from advocating the goals of the foreign terrorist organizations, espousing their views or even being members of such groups. They can do so without fear of penalty right up to the line established by Brandenburg v. Ohio, 395 U.S. 444 (1969).

It is true that in American-Arab Anti-Discrimination Comm. v. Reno, 119 F.3d 1367 (9th Cir. 1997) (ADC II), vacated, 119 S. Ct. 936 (1999), we said that in ADC I "we had before us evidence that [the] associational activities [that the plaintiffs engaged in] included fundraising." Id. at 1376. But ADC II has been vacated, and we can find no language in ADC I holding that fundraising enjoys First Amendment protection on a par with pure speech or advocacy. We are not bound by ADC II's characterization of ADC I, and we find it unpersuasive. Material support given to a terrorist organization can be used to promote the organization's unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used. We therefore do not agree with ADC II's implied holding that the First Amendment requires the government to demonstrate a specific intent to aid an organization's illegal activities before attaching liability to the donation of funds.

C. Plaintiffs make a separate First Amendment argument based on the fact that the terrorist organizations in question also engage in political advocacy. Pointing to cases such as Buckley v. Valeo, 424 U.S. 1 (1976), and In re Asbestos Sch. Litig., 46 F.3d 1284 (3d Cir. 1994), plaintiffs argue that providing money to organizations engaged in political expression is itself both political expression and association. See Buckley, 424 U.S. at 44-45 ("[T]he constitutionality of [the restrictions on contributions to political candidates] turns on whether the government interests advanced in its support satisfy the exacting scrutiny applicable to limitations on core First Amendment rights of political expression."). ¹ However, the cases equating monetary support with expression involved...