Footnotes to Testimony of David Cole, May 5, 2004
(1) United States v. Hammoud, C.A. No.
03-4253 (4th Cir. appeal pending 2004).
(2) Matter of Hamide and Shehadeh, Nos.
A 30 660 528, A 19 262 560 (Imm. Ct. Los Angeles, CA, pending 2004).
(3) These terms appear in 18 U.S.C. §2339A(b),
but are incorporated by reference in 18 U.S.C. §2339B(g)(4)
(2002). The USA Patriot Act expanded the definition of “material
support” by adding “expert advice or assistance.” Pub.
L. No. 107-56, §805(a)(2), 115 Sat. 272 (2001).
(4) 18 U.S.C. § 2339A prohibits the
provision of “material support or resources” for the
purpose of furthering specified terrorist activities, but then exempts
the provision of “medicine and religious articles” from
the definition of “material support.” Accordingly, even
if an individual donated medicine for the purpose of furthering
terrorist activity, his action would not be prohibited by the “material
support” provisions, 18 U.S.C. §§ 2339A and 2339B.
(5) 50 U.S.C. § 781 (West 1991) (repealed
1993).
(6) See, e.g., United States v.
Robel, 389 U.S. 258, 262 (1967) (government could not ban Communist
Party members from working in defense facilities absent proof that
they had specific intent to further the Party’s unlawful ends);
Keyishian v. Board of Regents, 385 U.S. 589, 606 (1967) (“[m]ere
knowing membership without a specific intent to further the unlawful
aims of an organization is not a constitutionally adequate basis” for
barring employment in state university system to Communist Party
members); Elfbrandt v. Russell, 384 U.S. 11, 19 (1966) (“a
law which applies to membership without the ‘specific intent’ to
further the illegal aims of the organization infringes unnecessarily
on protected freedoms”); Noto v. United States, 367 U.S. 290,
299-300 (1961) (First Amendment bars punishment of “one in
sympathy with the legitimate aims of [the Communist Party], but not
specifically intending to accomplish them by resort to violence”).
(7) As the Supreme Court has said, “[t]he
right to join together ‘for the advancement of beliefs and
ideas’ . . . is diluted if it does not include the right to
pool money through contributions, for funds are often essential if ‘advocacy’ is
to be truly or optimally ‘effective.’” Buckley
v. Valeo, 424 U.S. 1, 65-66 (1976) (quoting NAACP v. Alabama, 357
U.S. 449, 460 (1958)). Monetary contributions to political organizations
are a protected form of association and expression. Id. at
16-17, 24-25; Roberts v. United States Jaycees, 468 U.S. 609 (1984)
(First Amendment protects nonprofit group’s right to solicit
funds); Citizens Against Rent Control v. Berkeley, 454 U.S. 290,
295-96 (1981) (monetary contributions to a group are a form of “collective
expression” protected by the right of association); Service
Employees Int’l Union v. Fair Political Practices Comm’n,
955 F.2d 1312, 1316 (9th Cir.) (“contributing money is an act
of political association that is protected by the First Amendment”), cert.
denied, 505 U.S. 1230 (1992); In re Asbestos Litig., 46 F.3d
1284, 1290 (3d Cir. 1994) (contributions to political organization
are constitutionally protected absent specific intent to further
the group’s illegal ends).
(8) Sheikh Omar Abdel Rahman, for example,
was convicted of seditious conspiracy for his part in encouraging
a plan to bomb various tunnels and bridges in New York City, even
though he did not undertake any violent act himself. United States
v. Rahman, 189 F.3d 88 (2d Cir. 1999), cert. denied, 528
U.S. 1094 (2000).
(9) The Money Laundering Control Act makes
it a crime, among other things, to transmit funds “with the
intent to promote the carrying on of specified unlawful activity,” including
terrorism. 18 U.S.C. §1956(a)(2)(A). The USA PATRIOT Act added
extensive new money laundering provisions designed to facilitate
the investigation, prevention, and prosecution of money laundering
related to terrorism. USA PATRIOT Act, §§ 301-376.
(10) 18 U.S.C. §§ 1961-68. RICO
prohibits the acquisition or maintenance of any enterprise through
a pattern of racketeering, or with income derived from a pattern
of racketeering. 18 U.S.C. § 1962. A wide range of terrorist
activity and fundraising for terrorist activity is included within
the definition of racketeering activity. See 18 U.S.C. § 1961(1)
and 18 U.S.C. § 2332b(g)(5).
(11) Brief for the United States on Reargument
at 8, Scales v. United States, 367 U.S. 203 (arguing that “specific
intent” showing is unnecessary “on the principle that
knowingly joining an organization with illegal objectives contributes
to the attainment of those objectives because of the support given
by membership itself”).
Other Resources
ACLU
Links
Articles
Tips and Tools for Passing Resolutions
Frequently Asked Questions (FAQs)