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(5) 50 U.S.C. § 781 (West 1991) (repealed 1993).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”).