In this series of related cases, CCR has tackled two sets of legal prohibitions that make it a crime to provide support, including humanitarian aid, literature distribution and political advocacy, to any foreign entity that the government has designated as a “terrorist” group.
The Supreme Court heard arguments in the case on February 23, 2010. A transcript of the argument is available for download. On June 21, 2010, the Supreme Court held, by a 6-to-3 vote, that the statute's prohibitions on "expert advice," "training," "service," and "personnel" were not vague, and did not violate speech or associational rights as applied to plaintiffs' intended activities. Chief Justice Roberts wrote for the majority, reversing the Court of Appeals (which had ruled for plaintiffs) on the vagueness claims, and holding that while strict scrutiny apparently applied, even support in the form of intangibles like human rights training freed up resources for other illegal uses, and that combined with the government's interest in denying blacklisted groups legitimacy was sufficient to trump the First Amendment interests of the plaintiffs. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. Plaintiffs sought to provide training in human rights advocacy and peacemaking to the Kurdistan Workers' Party in Turkey, a designated terrorist organization. Multiple lower court rulings had found the statute unconstitutionally vague.
Audio of David Cole: 2004 en banc Oral Argument (Court of Appeals)
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Overview: the “material support” statute and its significance
The first two complaints, filed in 1998 and 2003, challenged the constitutionality of the “material support” statute, 18 U.S.C. § 2339B, which makes it a crime (punishable by up to 10 years in prison) to provide “material support” to any foreign organization the Secretary of State has designated as terrorist. The suits were filed in federal court in Los Angeles on behalf of six organizations and two individuals who had supported and want to continue to support the lawful political and humanitarian activities of two groups that the Secretary of State has designated as terrorist: the Kurdistan Workers’ Party (PKK), a Kurdish political group in Turkey, and the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka.
CCR contends that the challenged provisions violate the First Amendment insofar as they criminalize the provision of forms of support such as the distribution of literature, engaging in political advocacy, participating in peace conferences, training in human rights advocacy, and donating cash and humanitarian assistance, even when such support is intended solely to promote the lawful and non-violent activities of a designated organization. Plaintiffs’ principal complaint is that the statute imposes guilt by association by punishing moral innocents not for their own culpable acts, but for the culpable acts of the groups they have supported. The statute does not require any showing of intent to further terrorist or other illegal activity. We also claimed that the statute was unconstitutionally vague, and that the Secretary of State’s power to designate groups was too broad, giving the executive too much discretionary power to label groups as “terrorist” and turn their supporters into outlaws.
The statute has played a major role in some of the government’s more dubious terrorism prosecutions in the wake of 9/11. John Walker Lindh was charged with providing “material support” when the government lacked sufficient evidence to pursue treason charges against him. Other high-profile post-9/11 material support cases included the prosecutions of the Lackawanna Six, accused of training at terror camps in Afghanistan; Sami Omar Al Huassayn, an Idaho student accused of running a web site where radical Islamists posted materials (and eventually acquitted by a jury); Ahmed Abu Ali, a Virginian student held in Saudi Arabia at the behest of the United States for over a year, and extradited to face vague charges of material support only after a court order; and radical criminal defense attorney Lynne Stewart. In all these cases the defense claimed the evidence was too thin to support more substantive terrorism charges, and the “material support” allegations were overly vague.
History of the case
CCR’s plaintiffs include the Humanitarian Law Project, a human rights organization that seeks to provide training in human rights enforcement and peaceful conflict resolution to the PKK. Other plaintiffs include a Tamil-American physician and several Tamil-American organizations in the United States that sought to support the lawful activities of the LTTE in Sri Lanka. As the District Court found, both the PKK and the LTTE engage in a wide variety of lawful, nonviolent activities, and the plaintiff groups seek only to support those activities. Humanitarian Law Project seeks to assist the PKK in methods for peacefully resolving its disputes with the Turkish government, and in carrying out human rights monitoring in Kurdish parts of Turkey. The Tamil groups want to respond to the desperate needs of those affected by the civil war and the December 26, 2004 Tsunami in the coastal areas of Sri Lanka. In many of the most-heavily devastated areas, the LTTE acted as the functioning government, and little humanitarian aid could get through without working with the LTTE. The groups want to send money, medicines, and their own members to the area, including doctors to help with the public health crisis, and lawyers who wish to assist the peace negotiations between the warring sides in Sri Lanka—negotiations which were crucial to ensuring that vast amounts of promised foreign relief could reach the affected areas.
In 1998, after the first complaint was filed, Judge Audrey Collins of the federal district court in Los Angeles granted a preliminary injunction that declaring the challenged provisions unconstitutional and enjoining the government from enforcing them against the plaintiffs. While she rejected plaintiffs’ argument that the challenged provisions violate the First Amendment by imposing guilt-by-association on individual supporters who do not intend to support a group’s illegal activities, and the challenge to the Secretary of State’s power to designate groups, she ruled that the statute’s definitions of “material support” were unconstitutionally vague (that is, they were so vague that they encompassed much activity protected by the First Amendment, and were too open-ended to allow persons of ordinary intelligence to distinguish what was prohibited from what was permitted). The federal Court of Appeals for the Ninth Circuit affirmed this decision in 2000, and Judge Collins entered a final injunction in 2001. Both sides appealed.
In the meantime, Congress passed the USA PATRIOT Act, which added a ban on “expert advice or assistance” to the material support statute. Plaintiffs filed a new complaint to challenge these provisions in 2003. Judge Collins again declared those new provisions unconstitutionally vague for the same reasons that she had invalidated the ban on providing “training” and “personnel” in 2001, and both sides again appealed the ruling.
The 2001 decision was appealed to the Court of Appeals for the Ninth Circuit, where a panel of three judges affirmed Judge Collins’ ruling, and also ruled that, in order to be constitutional, no one could be convicted under that statute without knowledge of a group’s illegal activities or knowledge that the group was designated as terrorist organization by the government. The entire Ninth Circuit decided to review that decision en banc (that is, with a larger group of judges than the original panel of three), but days after the oral argument in December 2004, Congress modified the statute in several ways designed to meet the problems our lawsuit and Judge Collins’ opinions had highlighted, adding, among other things, a knowledge requirement of the sort the panel had mandated. Because of these modifications, the Court of Appeals decided to simply send both cases back to the district court for resolution.
The parties returned to the district court for the fourth time in 2005. On July 25, 2005, Judge Collins again ruled that several aspects of the definitions of “material support” in the statute were unconstitutionally vague. Specifically, she enjoined the government from enforcing the bars on providing “training,” “expert advice or assistance” in the form of “specialized knowledge,” or “service” to the PKK or LTTE. The Court held that each of these terms was unconstitutionally vague, in violation of the Fifth Amendment. Judge Collins also reaffirmed her earlier rulings regarding the guilt-by-association and overbroad designation authority claims.
Both sides filed appeals. On December 10, 2007, a three-judge panel of the Court of Appeals for the Ninth Circuit affirmed Judge Collins’ ruling in all respects. In doing so, however, the Court of Appeals reaffirmed its previous (2000 and 2003) rulings in these cases, which held that the constitution requires that the government prove that a defendant knew either that the group she was providing material support to was designated by the government as a terrorist organization, or knew about the unlawful activities that caused it to be so designated. The government asked the full Court of Appeals for the Ninth Circuit to review the decision of the panel en banc, as it had in 2004, but after considering the matter for some time, and requesting a response from plaintiffs, the full Court decided against review on January 5, 2009.
The government filed its petition for certiorari review in the Supreme Court on June 4, 2009 and plaintiffs filed their opposition, together with a conditional cross-petition for certiorari, on July 6, 2009. The Supreme Court announced that it would accept the case for review, granting certiorari on both plaintiffs' and the government's petitions on September 30th, 2009. Oral argument took place on the morning of February 23, 2010, and the Court's opinion issued on June 21, 2010.
Round Four: challenging similar restrictions under the IEEPA statute
In assessing which of their intended activities the plaintiffs could undertake in the wake of the District Court’s July 2005 order, we realized that, despite the Court’s ruling that they could provide “services” without fear of prosecution under the material support statute, there is another set of criminal prohibitions on providing “services” to the PKK and the LTTE, founded on a different statute and regulatory scheme. Plaintiff groups and their members who provide “services” to the PKK or LTTE may still be subject to criminal prosecution for violations of the International Emergency Economic Powers Act (“IEEPA”). Pursuant to IEEPA, President Bush declared a national emergency in the wake of the terrorist attacks of September 11, 2001, and has by executive order prohibited any contributions of services to hundreds of “Specially Designated Global Terrorists,” including among them the PKK and LTTE. Regulations implementing this order (the “Global Terrorism Sanctions Regulations”) were created by the Treasury Department in 2003. Willful violations of Presidential orders or regulations validly issued pursuant to IEEPA are criminal offenses. All other violations are subject to substantial civil penalties.
Plaintiffs therefore filed a new case seeking additional injunctive and declaratory relief, enjoining Defendants from enforcing against them the executive order prohibiting contributions of “services” to the PKK or LTTE.
Just as with the challenge to the “material support” statute, this case challenges the IEEPA ban on three sets of legal grounds:
- the ban on services is unconstitutionally vague, because it encompasses many areas of activity protected by the first amendment,
- the scheme imposes criminal liability and civil penalties without proof of specific intent to further the banned group’s illegal activities, and
- the scheme creates a wholly unfettered licensing authority, imposing no statutory limitations on the Executive’s discretion to designate groups as subject to the prohibitions, or on the granting of licenses to provide otherwise prohibited support to such groups once they are proscribed.
The new case, Humanitarian Law Project v. Department of the Treasury, No. 05-8047, was filed in November 2005 and was assigned to Judge Collins. On November 21, 2006, Judge Collins issued her decision and found that the contested prohibition was not unconstitutionally vague. She found partially in favor of the plaintiffs, agreeing with CCR that it would be unconstitutional to allow the President to designate our plaintiff groups as terrorist organizations simply because they were "otherwise associated with" a previously designated group (such as the LTTE or PKK). The court found that the Executive Order gave the President "unfettered discretion" to brand organizations as 'terrorist', and also cited the absence of "definable criteria for designating individuals and groups as [terrorist organizations]" as well as the "penalties for mere association" threatened by this designation power as her bases for finding it unconstitutional.
However, Judge Collins held that the criminal prohibition on providing "services" to designated organizations was not unconstitutionally vague – in contrast to her previous finding that the material support statute's ban on "services" was void for vagueness – and rejected plaintiffs' licensing claims.
Both CCR and the government filed appeals to Judge Collins’ decision in the Court of Appeals for the Ninth Circuit. The case was argued on November 19, 2008 before Judges Pregerson and Rhymer of the Ninth Circuit and Judge Korman of the Southern District of New York (sitting by designation). On August 24, 2009, by a 2-to-1 vote, the panel affirmed the decision of the District Court, over a partial dissent from Judge Pregerson. The Court of Appeals has extended the time for Plaintiffs to seek reconsideration en banc from the full Ninth Circuit until 45 days after the Supreme Court decides Holder v. HLP.