published December 4, 2003
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CONTACT: David Lerner, Riptide Communications at (212) 260-5000; David Cole 202-362-6473 or 202-365-6779; Nancy Chang (212) 614-6420
NINTH CIRCUIT COURT OF APPEALS HOLDS CENTRAL PROVISIONS OF ANTI-TERRORISM STATUTE UNCONSTITUTIONAL
Wed, Dec. 3, 2003: The U.S. Court of Appeals for the Ninth Circuit today declared unconstitutional significant parts of a criminal statute barring “material support” to terrorist organizations, and rejected the government’s interpretation of the statute as imposing liability on “moral innocents.” The statute at issue, 18 U.S.C. 2339B, has been a central tool in the Bush administration’s criminal “war on terrorism” cases, and the decision calls into question the legality of several convictions, including those of the Lackawanna 6, the first of whom were sentenced today.
The case, Humanitarian Law Project v. Ashcroft, involved a challenge by brought by the Center for Constitutional Rights on behalf of a human rights organization in Los Angeles and several groups of Sri Lankan Tamils to a statute that criminalizes “material support” to any group designated as “terrorist” by the Secretary of State. The Adminstration has argued that the statute makes it a crime to provide material support to terrorist organizations without regard to whether the donor knows that the organization is a designated group, and the statute includes within the ambit of “material support” the provision of “personnel” and “training.”
Reaffirming an earlier decision in the case, the court of appeals held unconstitutionally vague the statute’s prohibition on the provision of “personnel” and “training” to terrorist organizations These are the very terms that the Lackawanna 6 have pleaded guilty to violating by attending an Al Qaeda training camp.
In addition, the Court firmly rejected the government’s broad interpretation of the “material support” statute. The government argued that the statute permitted a conviction even where a donor was unaware that a recipient organization was designated, and unaware of the organization’s unlawful acts. The Court held that this interpretation would unconstitutionally punish “moral innocents” in violation of due process, and therefore interpreted the statute to require the government to prove beyond a reasonable doubt that the donor knew the organization was designated or was aware of the unlawful activities that led to its designation.
The Court reasoned:
Without the knowledge requirement described above, a person who simply sends a check to a school or orphanage in Tamil Eelam run by the LTTE could be convicted under the statute, even if that individual is not aware of the LTTE’s designation or of any unlawful activities undertaken by the LTTE. Or, according to the government’s interpretation of §2339B, a woman who buys cookies from a bake sale outside of her grocery store to support displaced Kurdish refugees to find new homes could be held liable so long as the bake sale had a sign that said that the sale was sponsored by the PKK, without regard to her knowledge of the PKK’s designation or other activities.
The court also upheld prior rulings that the material support statute’s prohibitions on the provision of “personnel” and “training” were “void for vagueness under the First and Fifth Amendments because they bring within their ambit constitutionally protected speech and advocacy.
David Cole, a Georgetown University law professor and lawyer with the Center for Constitutional Rights, who argued the case, said: “Today’s decision means that central parts of this “material support” statutes are unconstitutional, and that the government’s interpretation of the statute cast an unconstitutionally broad net over innocent persons. This decision will mitigate the substantial chilling effect that this statute has cast over those who seek to provide humanitarian aid to conflict-ridden areas. In our view, however the statute’s flaw is even more fundamental – it imposes guilt by association. People should be held responsible for their own acts, and for any acts of terrorism that they support, not for their mere “support” of a group the government has placed on a blacklist.”
Nancy Chang, the Center for Constitutional Rights staff attorney who is working on the case, said, “The First Amendment protections that the Ninth Circuit has put into place are especially important now that the Patriot Act was amended to increase the penalty for the provision of material support from ten years to 15 years and possibly a sentence life.”
The decision is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/044DE357BD726D7288256DF10063BDE4/$file/0255082.pdf?openelement