By The Associated Press, December 4, 2003
Filed at 8:26 a.m. ET
SAN FRANCISCO (AP) — In a potential blow to the Bush administration’s legal strategy in the war on terror, a federal appeals court overturned part of a sweeping law the government has increasingly used to arrest or prosecute suspected terrorists.
The decision Wednesday by the 9th U.S. Circuit Court of Appeals involves a 1996 terrorism law that outlaws financial assistance or “material support” to organizations classified as terrorist by the State Department.
The San Francisco-based appeals court struck down part of the law, ruling that it is unconstitutional to punish people — sometimes with life in prison — for providing “training” or “personnel” to a terror group.
Increasingly, the charge of choice for prosecutors in the war on terrorism is that someone provided some form of material support to terror groups. The decision Wednesday means that for the first time, part of that strategy has been declared unconstitutional by a federal appeals court.
The ruling also requires the government to prove that defendants knew their activities, such as donating money to outlawed groups, were actually contributing to acts of terror.
“According to the government’s interpretation… 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,” Judge Harry Pregerson wrote in the 2-1 decision.
In addition, the court wrote that it is unconstitutional to criminalize donations of personnel or training, which fall under the “material support” section of the law, because that “blurs the line between protected expression and unprotected expression.”
The court ruled in a case involving a civil liberties organization’s efforts to lobby Congress on behalf of groups on the terrorist watch list. The court ruled that the Humanitarian Law Project could legally lobby Congress and provide other non-financial assistance to the Kurdistan Workers Party in Turkey.
The Bush administration had argued that donating “personnel” on behalf of the Kurdistan Workers Party violated the 1996 law and amounted to aiding terrorism.
The 1996 law has been used to prosecute some high-profile suspects, including accused British arms trafficker Hemant Lakhan, who was arrested in New Jersey and charged in August with providing material support in an alleged missile-smuggling plot.
Another case involved six Americans of Yemeni descent who were convicted under the law of providing “material support” to al-Qaida. Authorities described the six, who lived just blocks apart in Lackawanna, N.Y., as a sleeper cell awaiting orders from Osama bin Laden’s network.
The first of the six, who attended an al-Qaida training camp and met bin Laden shortly before the Sept. 11 terror attacks, received 10 years in prison Wednesday, a sentence Attorney General John Ashcroft said “sends a clear message that the United States will seek strong penalties for those who provide material support to our terrorist enemies.”
The Lackawanna case isn’t governed by the 9th Circuit. Still, if it survives a Supreme Court appeal, Wednesday’s decision in San Francisco may be a blow to Ashcroft’s prosecution of that and other cases in the war on terror.
While the court did not strike down the “material support” provision entirely, Georgetown University Law Center professor David Cole said prosecutions under the provision are now suspect.
The decision, Cole said, “declares unconstitutional one of the linchpins of the Ashcroft domestic anti-terrorism strategy.” The law in question was adopted by Congress following the 1995 bombing of the Murrah Federal Building in Oklahoma City.
The Justice Department was not immediately prepared to say how it will respond. The government has weeks to decide whether to appeal before the decision becomes law.
“We are reviewing the decision and will have no further comment at this time,” said Charles Miller, a department spokesman.
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On the Net: http://www.ca9.uscourts.gov
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Appeals Court Casts Doubt on Parts of Key Antiterrorism Law
By ERIC LICHTBLAU, The New York Times
WASHINGTON, Dec. 3, 2003 — A federal appeals court panel ruled on Wednesday that crucial parts of an antiterrorism law were unconstitutional because the law, which the Bush administration relies on heavily, risks ensnaring innocent humanitarians.
The ruling from the United States Court of Appeals for the Ninth Circuit, in San Francisco, throws into doubt reliance on parts of a 1996 law that make it a crime to provide material support to groups designated as terrorist.
Since the Sept. 11, 2001, attacks, the ban has become a favorite weapon for the Justice Department in a host of cases, including the prosecutions of John Walker Lindh, who fought with the Taliban against the United States in Afghanistan; Lynne F. Stewart, the defense lawyer accused of helping a client who was a terrorist in prison pass messages to terrorist associates; and terror suspects in Detroit, Lackawanna, N.Y., and Portland, Ore.
But the famously liberal Ninth Circuit ruled that two important sections of the law were unconstitutional. Ruling in a case involving two groups that perform humanitarian and advocacy work on behalf of Kurds in Turkey and Tamils in Sri Lanka, a panel of the Ninth Circuit ruled that the law failed to require clearly that a suspect knowingly provided support to a terrorist organization. As a result, the law poses “a danger of sweeping in its ambit moral innocents,” the judges said.
The ruling came from Judges Harry Pregerson, Sidney R. Thomas and Johnnie B. Rawlinson, with the latter dissenting on the question of whether the law violated due process rights.
Under the government’s interpretation, the court found, a person who sends a check to an orphanage in Sri Lanka run by a banned group or “a woman who buys cookies from a bake sale outside of her grocery store to support displaced Kurdish refugees” could face a lengthy prison sentence for supporting terrorists.
In addition, the court affirmed a preliminary ruling issued before 9/11, finding that the ban on providing “training” or “personnel” for terrorist groups was unconstitutionally vague and could deter protected free speech. The court said efforts by the Justice Department to narrow the definition of those terms had fallen short, and it blocked the government from enforcing the provisions.
The Justice Department declined to comment. “We are studying the ruling,” a spokesman, Bryan Sierra, said, “and there’s nothing more we can say at this time.”
David Cole, a lawyer with the Center for Constitutional Rights who represented the humanitarian groups in the case, predicted that the Justice Department, because it has so much invested in the law on material support, would almost certainly appeal the decision to the Supreme Court if the Ninth Circuit refuses to reconsider it. Mr. Cole said the decision sent an important message to groups worried about the law.
“The government’s reading of this statute,” he said, “is extremely broad, and it has had an extreme chilling effect on anyone who is interested in providing humanitarian aid where there might be a designated terrorist organization involved.”
The Justice Department has pointed to a series of successes in defending its antiterrorism effort.
Mr. Cole said the new decision, coupled with other setbacks for the Department in cases like the prosecution of Zacarias Moussaoui, was “another instance of a court raising serious constitutional doubts about initiatives undertaken by the government in the war on terrorism.”
The New York Times
December 4, 2003
http://www.nytimes.com/2003/12/04/national/04SUSP.html?pagewanted=print&position;=