Federal appeals panel finds anti-terrorism law unconstitutionally vague

Wednesday, March 8, 2000

Editor’s note: The Supreme Court on March 5, 2001, refused to hear the government’s and the plaintiffs’ appeals of the 9th Circuit’s ruling. The cases were Humanitarian Law Project v. Ashcroft, 00-910, and Ashcroft v. Humanitarian Law Project, 00-1077.

A federal law prohibiting contributions of material support to certain foreign terrorist organizations is unconstitutionally vague, a federal appeals court panel has ruled.

The Antiterrorism and Effective Death Penalty Act of 1996 contains a provision prohibiting individuals from giving “material support or resources” to organizations deemed by the Secretary of State to be foreign terrorist groups.

Led by the Humanitarian Law Project, six organizations and two individuals challenged the constitutionality of the law in 1998, contending that it violated the First Amendment.

They argued, among other things, that the law infringed on their free-association rights, granted too much discretion to the secretary of state and prohibited their First Amendment right to seek and donate funds.

A federal district court rejected most of the First Amendment claims, but ruled the definition of the term “material support” was vague enough to prevent the government from enforcing the law.

On appeal, a three-judge panel of the 9th U.S. Circuit Court of Appeals agreed in Humanitarian Law Project v. Reno. Just as the lower court had, the appeals court cast aside most of the First Amendment arguments.

The court rejected the free-association claim, finding that the statute does not prohibit membership in a group or support for the political goals of a group. “What [the law] prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions,” the court wrote in its March 3 opinion.

The plaintiffs contended that the law could be interpreted to prohibit the giving of material support to the so-called terrorist groups' nonviolent humanitarian and political activities.

However, the 9th Circuit determined that the First Amendment did not protect the right to give funds to terrorist groups. These “terrorist groups do not maintain open books,” the court wrote. “Therefore, when someone makes a donation to them, there is no way to tell how the donation is used.”

The appeals court distinguished between giving material support to a group and advocating the beliefs and ideas of a group. “Advocacy is far different from making donations of material support,” the court wrote.

The appeals court also dismissed the plaintiffs' argument that the statute had empowered the secretary of state with “unfettered discretion” to determine whether a group is a terrorist organization.

The 9th Circuit pointed out that the secretary of state can only designate a group as a terrorist group if he or she has “reasonable grounds to believe that an organization has engaged in terrorist acts.”

However, the appeals court agreed with the plaintiffs and the lower court that the some of the law's language was too vague.

The law defined “material support” as:

Currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religion.

The court focused on the terms “training” and “personnel,” finding that these terms “blur[red] the line between protected expression and unprotected conduct.”

“Someone who advocates the cause of …[a terrorist organization] … could be seen as supplying them with personnel,” the court wrote.

The appeals court also had trouble with the word “training.” “For example, a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of the term 'training.'”

For these reasons, the court ruled that the lower court did not “abuse its discretion” in issuing a preliminary injunction.

The attorneys who argued the case before the 9th Circuit could not be reached for comment.