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Constitutional Implications of Statutes Penalizing Material Support to Terrorist Organizations

Testimony of David Cole Before the United States Senate Committee on the Judiciary

May 5, 2004

Introduction

Thank you for inviting me to testify on the issue of federal government regulation of material support to terrorism. I am a professor of constitutional law at Georgetown University Law Center, and a volunteer attorney with the Center for Constitutional Rights. In the latter capacity, I have litigated several cases concerning material support to terrorist groups. In my view, while cutting off funding for terrorist activity is undoubtedly an extremely important objective, Congress and the Executive have pursued that objective through unnecessarily broad and unconstitutional means. The current legal framework for regulating material support to terrorist groups raises serious constitutional questions under the First Amendment rights to speech and association, and under the Fifth Amendment Due Process Clause. The basic problem is that Congress has legislated far too broadly, and has thereby given the Executive sweeping and largely unchecked authority to blacklist disfavored organizations and criminalize all support provided to them, without requiring any showing that the support is in fact connected to furthering terrorist activity. Indeed, in the USA Patriot Act, Congress went so far as to criminalize pure speech (“expert advice or assistance”), even where that speech is intended to further, and in fact furthers, only fully lawful, nonviolent human rights advocacy. Because of these constitutional concerns, federal courts have already declared unconstitutional significant aspects of the 18 U.S.C. §2339B, one of three federal statutes barring material support to terrorist organizations.

While the focus of this hearing, and of my testimony, will be on Section 2339B, it is important to note that there are in fact two other statutes that also prohibit material support to groups labeled “terrorist” by the Executive. Presidents Clinton and Bush have used the International Emergency Economic Powers Act (IEEPA) to label hundreds of individuals and organizations as “specially designated terrorists” and “specially designated global terrorists” – terms that literally have no definition whatsoever in statute or regulation. Support to any of these groups is a crime, again regardless of whether the support in fact furthers any terrorist activity. And the USA Patriot Act amended the Immigration and Nationality Act to authorize deportation of foreign nationals for supporting any group – domestic or foreign – that the Secretary of State and Attorney General decide to label a “terrorist organization,” a term defined so broadly by the Patriot Act that it could literally encompass the Department of Homeland Security.

Examples of how far these statutes can go are already legion. President Clinton used IEEPA to label a U.S. citizen a “specially designated terrorist” without hearing, notice, or trial, and then to subject him to a kind of internal banishment, in which it is a crime for anyone else in the United States to provide him with anything of value. The government has taken the position that 18 U.S.C. §2339B applies to a lawyer providing legal advice to a designated “terrorist organization,” even if that advice concerns a legal challenge to the designation itself. The government has stated that Section 2339B bans all provision of training and “expert advice” to designated groups, even where, as in one of the cases I am litigating, a human rights group seeks to provide training and advice in human rights advocacy, precisely to discourage the recipient organization from terrorism and to encourage it to pursue its goals through peaceful, lawful, and nonviolent means. And the first person convicted for violating Section 2339B after a jury trial was sentenced to 155 years in prison for smuggling cigarettes across state lines and donating $3500 to Hezbollah.(1) (His compatriots, who engaged in the same smuggling but did not make a donation, received sentences of about five years each). Finally, the government has recently invoked the immigration version of the “material support” statute, part of the USA Patriot Act, to seek the deportation today of two longtime lawful permanent residents for having distributed magazines of a PLO group in the 1980s, when it was perfectly lawful to do so.(2)

In this testimony, I will briefly set forth the three federal legal regimes that penalize “material support” to “terrorist organizations,” and then discuss the principal constitutional objections that they raise. In summary, the constitutional problems raised by these schemes are threefold.

  • First, all of these statutes impose guilt by association, in violation of both the First and Fifth Amendments, because they hold individuals responsible not for their own terrorist conduct, not even for support of terrorist conduct, but for support of groups that in turn have engaged in terrorist conduct.
  • Second, 18 U.S.C. §2339B, as amended by the USA Patriot Act, is unconstitutionally vague and infringes on constitutionally protected speech, because it penalizes pure speech, without requiring any showing that the speech is intended and likely to produce imminent lawless action, as required by the Supreme Court in Brandenburg v. Ohio, 395 U.S. 444 (1969).
  • Third, all of these statutes infringe on basic due process protections, because they grant the Executive virtually unfettered discretion to blacklist disfavored organizations and individuals, without affording them any adequate process to challenge their designation.

1. The Legal Regimes that Regulate Support to "Terrorist Organizations"

Three different federal statutes authorize executive officials to designate “terrorist organizations” and punish “material support” provided to them. All three statutes share a common attribute – they penalize support of designated groups without regard to whether the individual who provided support did so to discourage or encourage violence, and without regard to the effect of the support in question. In addition, all three statutes afford the executive branch a virtual blank check in blacklisting disfavored groups.

A. 18 U.S.C. §2339B and 8 U.S.C. §1189

Sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act (AEDPA) codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, and amended by the USA Patriot Act, authorize the Secretary of State to designate “foreign terrorist organizations,” and make it a crime for anyone to support even the wholly lawful, nonviolent activities of designated organizations.

Under 8 U.S.C. § 1189(a)(1), "[t]he Secretary is authorized 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 (as defined at [8 U.S.C. § 1182(a)(3)(B)]); and ©) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States." Id. The term “terrorist activity” is broadly defined in 8 U.S.C. § 1182(a)(3)(B) far beyond its commonly understood meaning to include virtually any unlawful use of, or threat to use, a weapon against person or property, unless for mere personal monetary gain. “National security” is also broadly defined in 8 U.S.C. § 1189©)(2) to mean “national defense, foreign relations, or economic interests of the United States.” The Secretary’s determination that a group’s activities threaten our “national security” under the statute is judicially unreviewable. People’s Mojahedin Org. of Iran v. U.S. Sec. of State, 182 F.3d 17, 23 (D.C. Cir. 1999), cert. denied, 529 U.S. 1104 (2000). Thus, this statute is not limited to terrorist organizations as they are commonly understood, nor to national security as it is commonly understood, but broadly empowers the Secretary to criminalize support of any foreign group that has used or threatened to use a weapon and whose activities are deemed contrary to our economic interest.

Once the Secretary designates an organization and publishes the designation in the Federal Register, it becomes a crime, punishable by up to fifteen years of imprisonment and a substantial fine, to "knowingly provide[] material support or resources to a foreign terrorist organization, or [to] attempt[] or conspire[] to do so." 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.

18 U.S.C. § 2339A(b). (3)

Unlike other federal statutes criminalizing support for terrorist activity, see, e.g., 18 U.S.C. §2339A, AEDPA does not require any showing that the defendant intended that his donation be used for any illicit purpose. Congress simply adopted an irrebuttable presumption -- based on no factual predicate -- that all support to such organizations furthers their terrorist ends. AEDPA, Pub. L. No. 104-132, §301(a)(7), 110 Stat. 1214, 1247 (April 24, 1996). At the same time, and directly contrary to this presumption, the statute permits the donation of unlimited amounts of medicine and religious materials to designated organizations. 18 U.S.C. §2339A(b). Thus, the statute expressly discriminates between religious and political aid, permitting unlimited amounts of religious aid (even if it is intended to further terrorist activity),(4) while barring all political aid, even if it counters terrorism and promotes peace.

B. 8 U.S.C. §1182

Section 411 of the USA PATRIOT Act, codified at 8 U.S.C. §§1182 and 1227, makes it an excludable and deportable offense to have provided any material support to any organization designated by the Secretary of State. However, this statute defines “terrorist organization” even more expansively than 8 U.S.C. §1189, discussed above. Under 8 U.S.C. §1182(a)(3)(B)(vi), the Secretary of State, in consultation with the Attorney General, may designate as a “terrorist organization” any group that has ever planned “terrorist activity,” defined to include any virtually any use of a weapon against person or property. He may also designate any entity that has gathered information on a target for “terrorist activity.” Unlike 8 U.S.C. §1189, the organization need not be foreign, but may be domestic, and its activities need not be determined to be contrary to our “foreign policy, national defense, or economic interests.” Indeed, this definition of “terrorist organization” is so broad that the Secretary of State could literally designate the Department of Homeland Security as a “terrorist organization,” for one of its tasks is surely to gather information about potential targets for terrorist activity. Of course, such a designation would never occur, but the example illustrates how broadly the statute defines “terrorist organization.” Certainly any domestic right-wing militia group, and several anti-abortion groups, could easily be designated.

Unlike 8 U.S.C. §1189, this provision provides no opportunity for review of the designation whatsoever. The group designated has no opportunity to challenge its designation, nor is there any requirement that the group be given any notice or opportunity to be heard by the Secretary of State in the designation process.

If a foreign national provides material support to one of these designated groups, he or she is automatically deportable, apparently without regard to whether his support was intended to further, or in fact furthered, any terrorist activity. Thus, a foreign national who offered peacemaking assistance to a designated group would be automatically deportable, and would have no defense on the ground that his support in fact convinced the group to abandon violence for peaceful means of furthering their ends.

In a case I am handling, the government has invoked these Patriot Act provisions recently to seek the deportation of two long-time lawful permanent residents, Khader Hamide and Michel Shehadeh, for allegedly having provided “material support” to a “terrorist organization” by distributing PLO magazines in the 1980s, when it was fully lawful to do so. (The magazines were then and are still available in libraries across the nation). The government has never alleged that Hamide or Shehadeh sought to further any illegal activities of the PLO group they are alleged to have supported.

C. International Emergency Economic Powers Act

The third statute authorizing designation of “terrorists” is the International Emergency Economic Powers Act, 50 U.S.C. §§1701-1706 (2000). This statute was originally enacted to empower the President during emergencies to impose economic embargoes on foreign nations. It was used exclusively for that purpose until 1995, when President Clinton first used it to target not nations but disfavored political groups. He named ten Palestinian organizations and two Jewish groups as “specially designated terrorists,” which had the effect of freezing their assets and making it a crime for anyone in the United States to provide the groups with any support, again regardless of the purpose and effect of the support in question. After the attacks of September 11, President Bush invoked the same authority to name “specially designated global terrorists.” At the same time, he authorized the Secretary of the Treasury to designate anyone “associated with” a “specially designated global terrorist.”

Remarkably, there is no legal definition anywhere – not in statutes or regulations – of a “specially designated terrorist” or a “specially designated global terrorist.” Thus, the President and the Secretary of Treasury can apply this label to literally anyone or any group that can conceivably be reached under IEEPA. The only limitation IEEPA places is that there must be some “foreign interest” in the entity or person designated. But the statute has been used to designate even a United States citizen. Mohammed Salah, a U.S. citizen living in Chicago, has been labeled – without notice, trial, or hearing of any kind – a “specially designated terrorist.” Under the terms of IEEPA, it is thereby a crime to provide Mr. Salah with any thing of value, or even to make a donation to him. Literally applied and enforced, the designation would lead to Mr. Salah starving to death, since it would be a crime for anyone even to sell him a loaf of bread. Yet this penalty was imposed without any jury, without any notice, without any hearing, and without any definition of the label imposed.

II. These Statutes Impose Guilt by Association, in Violation of the First and Fifth Amendments

The statutes described above prohibit virtually all associational support to selected political organizations, while granting executive branch officials effectively unreviewable discretion to target disfavored groups. These laws make it a crime to write an op-ed, provide legal advice, volunteer one’s time, or distribute a magazine for any “designated” group, even if there is no connection whatsoever between the individual’s support and any illegal activity of the proscribed group.

Under these statutes, an American citizen who sends a treatise on nonviolence to the Kurdistan Workers’ Party to encourage it to forgo violence for peace can be sent to prison for fifteen years. This is so even if he proves that he intended the treatise to be used only for peaceful ends, and that it was in fact used solely for that purpose. Such a moral innocent can be said to be “guilty” only by association.

The Supreme Court has declared guilt by association “alien to the traditions of a free society and the First Amendment itself.” NAACP v. Claiborne Hardware, 458 U.S. 886, 932 (1982). It violates both the Fifth Amendment principle that guilt must be personal, and the First Amendment right of association.

These statutes are materially indistinguishable from the McCarthy era laws that penalized association with the Communist Party. Congress specifically found that the Communist Party was a foreign-dominated group engaged in terrorism for the purpose of overthrowing the United States,(5) yet the Supreme Court consistently held that individuals could not be penalized for their Communist Party associations absent proof of “specific intent” to further the group’s illegal ends.(6)

These statutes require no “specific intent,” and punish people solely for their associational support of specified groups. The Ninth Circuit in Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001), nonetheless concluded that 18 U.S.C. §2339B is valid because it does not penalize membership as such, but only “material support.” But that distinction, if accepted, would make the prohibition on guilt by association a meaningless formality; instead of criminalizing membership in disfavored groups, legislatures could simply criminalize the payment of dues or volunteering of services to those groups. Since associations cannot exist without the material support of their members, the district court’s reasoning eviscerates the right of association.(7)

The notion that material support can be penalized even if membership cannot is directly contrary to Supreme Court precedent. In NAACP v. Claiborne Hardware, for example, the Supreme Court unanimously held that the NAACP’s leaders and members could not be held liable for injuries sustained during an NAACP-led economic boycott absent proof that “the individual[s] held a specific intent to further [the boycott’s] illegal aims.” 458 U.S. at 920. But on the Ninth Circuit’s reasoning, the NAACP’s thousands of individual donors could have been held liable without any showing of specific intent.

The asserted distinction between support and membership also cannot be squared with the Fifth Amendment requirement that the government prove personal guilt. In Scales v. United States, 367 U.S. 203 (1961), the case that established the “specific intent” standard, the Supreme Court stated:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity ..., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.

Id. at 224-25 (emphasis added). In other words, the Fifth Amendment forbids holding a moral innocent culpable for the acts of others. Guilt by association is not limited to penalties based on membership alone: it encompasses any punishment of “status or conduct” that “can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity.” That is precisely the case here -- these statutes’ prohibition on material support to specified groups is explicitly “justified by reference to the relationship of that ... conduct to other concededly criminal activity,” namely the group’s “terrorist activity.”

There are many more precisely calibrated ways to stem the flow of funds for terrorist activity. Congress can and has made it a crime to provide material support to a wide range of terrorist crimes. 18 U.S.C. §2339A(a) (criminalizing aid to a long list of specific terrorist acts). Conspiracy and “aiding and abetting” statutes allow Congress to penalize not only those who actually commit acts of violence, but also those who engage in overt acts in furtherance of such conduct.(8) Money laundering statutes, recently strengthened by the USA PATRIOT Act, expressly prohibit the transmission of money or funds with the intent of promoting terrorist activity. 18 U.S.C. §1956.(9) And the Racketeering Influenced and Corrupt Organizations Act, or RICO, permits the government to target ostensibly legitimate activities when they are a front for illegal conduct.(10) Thus, the constitutional prohibition on guilt by association does not leave the government without resources for targeting the financing of terrorism. It simply requires them to target terrorism rather than association.

The government has argued that broadly criminalizing support even of groups’ otherwise lawful activities is necessary because money is fungible, and therefore any support, even to legitimate activities, frees up resources that can be used to support a group’s illegal activities. That argument fails for three reasons. First, as a matter of logic it proves too much, for it would render nugatory the First Amendment’s ban on guilt by association. That principle holds that the fact that a group engages in illegal activities -- even illegal activities that threaten national security -- does not permit the government to prohibit association with the group’s legal activities. Yet on the government’s view, because all support of a group frees up resources that could be used for illegal activities, all support to any group that engages in illegal activities could be criminalized. On this theory, the fact that the Democratic and Republican Parties violate campaign finance laws would authorize a prohibition on all support of those parties. The United States made just such a broad “freeing up” argument to the Supreme Court in United States v.Scales as a reason for rejecting the specific intent test, without success.(11) It should be similarly rejected here.

Second, neither these statutes nor the Executive’s enforcement of them is consistent with the freeing-up theory. The criminal material support statute itself permits unlimited donations of “medicine and religious articles” to terrorist groups. 18 U.S.C. § 2339A(b). Yet donations of medicine and religious articles are just as capable of freeing up resources as the prohibited donations. The government has granted licenses to attorneys providing valuable services to “terrorist organizations.” Moreover, the government has taken the position in litigation that the provision of services to a terrorist organization need not be prosecuted unless they are provided under the group’s direction and control. But as the Ninth Circuit noted, whether or not services are provided under a group’s direction and control, they have the same freeing-up effects.

III. 18 U.S.C. §2339B Violates Due Process and the First Amendment Because it Criminalizes a Broad Range of Pure Speech and Other Innocent Activity

Criminal statutes that threaten to chill speech and associational rights are subject to the most stringent vagueness scrutiny. See, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 871-72 (1997); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Section 2339B’s prohibitions on the provision of “personnel,” “training,” and “expert advice or assistance” to designated organizations have the apparent effect of criminalizing virtually all human activity on behalf of such organizations, including a substantial amount of core political speech and advocacy entitled to First Amendment protection. Thus, in cases I have handled with the Center for Constitutional Rights, two unanimous panels of the Ninth Circuit have declared the ban on providing “personnel” and “training” unconstitutionally vague, and a district court has similarly declared the Patriot Act’s ban on providing “expert advice or assistance” unconstitutionally vague. Humanitarian Law Project v. Ashcroft, 352 F.3d 382 (9th Cir. 2003); Humanitarian Law Project v. Reno, 205 F.3d 1130 (ith Cir. 2000), cert. denied, 532 U.S. 904 (2001); Humanitarian Law Project v. Ashcroft, No. CV-03-6107 , 2004 U.S. Dist. LEXIS 926 (C.D. Cal. Jan. 22, 2004); see also United States v. Sattar, 272 F. Supp.2d 348, 360 (S.D.N.Y. 2003) (also declaring ban on providing “personnel” unconstitutionally vague).

A. Personnel

The prohibition on providing “personnel” is virtually unlimited, and conceivably covers any personal services whatsoever, including a large number of core political activities. For example, it threatens to criminalize the Humanitarian Law Project (“HLP”) and Judge Ralph Fertig for advocating on the PKK’s behalf before the United Nations Commission on Human Rights and the United States Congress, for writing and distributing publications supportive of the PKK, and for working with PKK members at peace conferences and other meetings to further peace and justice for the Kurds.

The government has argued that “personnel” might be narrowly construed to be limited to “employees or others working under the direction or control of a specific entity.” It has adopted that interpretation in its United States Attorneys’ Manual, although that Manual is not binding on any U.S. Attorney, and creates no legally enforceable rights in criminal defendants. The courts have rejected that interpretation as unsupported by the statutory language. 205 F.3d at 1137-38.

In any event, the government’s interpretation of the term “personnel” as work performed “under the direction or control of a specific entity” would not save the statute. Activities such as writing, speaking, and distributing literature are still protected under the First Amendment even when done under the direction or control of another entity. The constitutional limits on libel actions, for example, apply equally to the reporter who writes an allegedly libelous story for her newspaper, and to the newspaper that publishes it. And as a matter of American constitutional law, the First Amendment constraints apply equally to a journalist employed here on behalf of Newsweek and one employed by the Economist.

Moreover, the “construction” offered contradicts the asserted rationale for the statute -- that all support must be prohibited because any support may free up resources for terrorist activity. Action independently taken on a group’s behalf but not under its control would have the same freeing up effects as action taken under its direction. As Judge Alex Kozinski explained for the Ninth Circuit,

Someone who advocates the cause of the PKK could be seen as supplying them with personnel; it even fits within the government’s rubric of freeing up resources, since having an independent advocate frees up members to engage in terrorist activities instead of advocacy. But advocacy is pure speech protected by the First Amendment.

205 F.3d at 1137.

B. Training

The prohibition on providing “training” is also unconstitutionally vague. This ban would appear to encompass literally any kind of teaching at all, no matter what the subject, from human rights to yoga. The government has argued that because some forms of “training” -- such as “training of foreign terrorists on how to use weapons, build bombs, evade surveillance, or launder funds” (Pet. Rhg. In Humanitarian Law Project at 15) -- could be constitutionally proscribed, the statute’s unlimited prohibition on all “training” is not vague. This is a non sequitur. The fact that the government could more clearly define the prohibited activities, as Judge Kozinski suggested, simply illustrates that national security does not require a overbroad ban. The fact that training in bomb-building is not protected by the First Amendment does not justify the criminalization of training in human rights advocacy, peacemaking, kindergarten teaching, health services, or daycare provision. Moreover, the panel’s invalidation of the bans on providing “training” and “personnel” does not bar the government from prosecuting the kind of training and personnel that is of justifiable concern. Any training or personal services offered to further terrorist activity is a crime under 18 U.S.C. §2339A, a provision not challenged here

C. Expert Advice or Assistance

The ban on providing “expert advice or assistance,” added by the Patriot Act, is unconstitutional for the same reasons that the bans on “personnel” and “training” are unconstitutional. It is virtually a synonym for “training,” and certainly no less vague, as a federal district court has held. It conceivably applies to legal advice, economic advice, advice on human rights advocacy and peacemaking, and medical advice. As a result, it criminalizes a wide range of clearly protected speech. As with “training,” Congress could prohibit “expert advice or assistance” in furtherance of specific terrorist activity, but it cannot broadly prohibit expert advice having no connection to terrorism whatsoever.

The vagueness and overbreadth of the prohibition on “expert advice and assistance” appear to stem in part from Congress’s failure to consider the consequences of applying this prohibition to 18 U.S.C. § 2339B, the “material support” statute at issue in this case. While sections § 2339A(a) and § 2339B(a) share the definition of material support in 18 U.S.C. § 2339A(b), Congress did not consider that interaction when adding the prohibition on “expert advice and assistance” in the USA PATRIOT Act. The legislative history of the USA PATRIOT Act, and its predecessor resolutions, suggests that Congress thought it was barring the provision of “expert advice and assistance” only to specified terrorist activities, as proscribed by § 2339A, and not to designated terrorist organizations, without regard to connection to terrorist activity, as is proscribed by the much broader § 2339B.

The House Committee on the Judiciary reported that, “The definition of providing material support to terrorists in title 18 is expanded to include providing ‘expert advice or assistance.’ This will only be a crime if it is provided ‘knowing or intending that [the expert advice or assistance] be used in preparation for, or in carrying out,’ any ‘Federal terrorism offense.’” H.R. Rep. No. 107-236(I) at 71 (2001) (emphasis added, quoting the text of the prohibition in § 2339A). Similarly, the Section-by-Section Analysis of the USA PATRIOT Act presented to the Senate stated that the amendment to the definition of material support would “prohibit[] providing terrorists with ‘expert advice or assistance,’ such as flight training, knowing or intending that it will be used to prepare for or carry out an act of terrorism.” 147 Cong. Rec. S10990-02, *S11013 (2001) (emphasis added). Congress apparently mistakenly thought that the prohibition on “expert advice and assistance” would incorporate the scienter requirement found in § 2339A, which requires intent to further specified terrorist activity. But as written, the prohibition also encompasses any “expert advice and assistance” provided to a designated group, which is punishable under § 2339B without regard to any connection between the advice or assistance and any terrorist activity of the recipient group.

Indeed, because the “expert advice or assistance” ban criminalizes pure speech, it also violates the First Amendment right of free speech. It criminalizes speech simply because it is offered to a group that has been proscribed by the Secretary of State. The statute requires no showing that the speech is connected to lawless or violent activity at all. As such, it violates the Supreme Court’s ruling in Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969). In Brandenburg, the Court held that the government may not penalize advocacy unless it meets the high bar of proving that it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U.S. at 447-48. The USA PATRIOT Act prohibition contains no Brandenburg limitation, but penalizes all “expert advice and assistance,” without regard to whether it has anything to do with lawless activity, much less whether it is intended and likely to produce imminent illegal conduct. Accordingly, under Brandenburg and McCoy, this statute cannot constitutionally be applied to plaintiffs’ intended support, and plaintiffs are entitled to an injunction to protect their First Amendment rights.

IV. The Material Support Statutes Violate the First Amendment and the Due Process Clause Because they Afford the Executive Unfettered Discretion in Proscribing Political Groups, Without a Meaningful Opportunity to Challenge the Designation

In addition to raising serious First and Fifth Amendment concerns because of their vagueness, overbreadth, and criminalization of pure speech and association, the material support statutes also raise significant constitutional issues because of the virtually unchecked discretion that they afford to executive officials to license First Amendment activity, and because of the failure to provide meaningful opportunities to challenge the designation of proscribed groups and individuals.

18 U.S.C. §2339B and 8 U.S.C. §1189 allow the Secretary of State to proscribe support of virtually any foreign organization that has engaged in or threatened to engage in an act of violence. The Secretary must find that the group’s activities threaten our national defense, foreign policy, or economic interests, but that determination is not subject to judicial review. . People’s Mojahedin Org. of Iran v. U.S. Sec. of State, 182 F.3d 17, 23 (D.C. Cir. 1999), cert. denied, 529 U.S. 1104 (2000). Thus, the critical determining factor in who gets designated is left entirely to executive discretion.

The only judicial check on the process arises if a designated group challenges its designation in the D.C. Circuit within 30 days of its publication in the Federal Register. The review process does not permit the group to submit evidence to the court, but rests solely on the administrative record. The government may submit its evidence in camera and ex parte, denying the designated group any opportunity to challenge the evidence upon which the designation was based. Not surprisingly, few designation challenges have been filed, and in no case has the D.C. Circuit ruled that the designation was unfounded.

The person who is prosecuted for providing material support to a designated group has no right to challenge the propriety of the designation. Thus, if the Secretary of State were to improperly designate a foreign group that had never engaged in terrorism, but the designated group failed to file a challenge within the requisite 30 days, a criminal defendant subsequently charged with having provided that group with assistance could not defend by maintaining that the group never engaged in terrorism. This prohibition raises serious due process and First Amendment concerns, as a criminal defendant prosecuted for an act of association certainly should have the right to make the case that his activity was constitutionally protected. McKinney v. Alabama, 424 U.S. 669 (1976). Yet the statute precludes just such a defense.

The two other designation schemes – under IEEPA and the Immigration and Nationality Act – also provide inadequate review. Under IEEPA, a group whose assets have been frozen may challenge the designation and freezing order in court, but the courts have not permitted the entity to provide additional evidence in court, and the government may defend its designation using secret evidence submitted ex parte and in camera. Holy Land Foundation v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). Most significantly, because there is no substantive definition of “specially designated terrorist” or “specially designated global terrorist,” there is literally no substantive standard to assess the government’s designation against. Thus, if the government were to label Amnesty International a “specially designated terrorist,” there would be no basis for a court to challenge that finding; without a legal definition of the term, a court cannot assess whether the facts asserted meet the characteristics of a “specially designated terrorist.”

The immigration statute provides no explicit procedure whatsoever for challenging the designation of a group as a terrorist organization under 8 U.S.C. §1182(a)(3)(B)(vi).

Thus, these statutes essentially empower executive branch officials to license core First Amendment activity – speech and association – by exercising virtually unfettered discretion in proscribing political groups, subject to minimal or no judicial review. They hinge substantial penalties – deportation, fines, criminal sentences – on any support provided to such groups, even if the support is indisputably shown to have discouraged rather than encouraged terrorist activity on the part of the recipient.

Conclusion

Cutting off financial support to terrorist activity is undoubtedly an important objective. But the material support statutes adopt constitutionally objectionable means in seeking to further that goal. They impose guilt by association, vaguely proscribe a wide range of pure speech and innocent associational activity, and grant executive officials unchecked licensing power over support to political groups. In short, in our zeal to further a legitimate goal, we have resurrected the unwise and unconstitutional tactics of the McCarthy era, giving government officials broad discretion to punish individuals not for their own culpable conduct, but for their speech and association.