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Material Support to Terrorists

United States v. Afshari, No. 02-50355 (9th Cir., Nov. 20, 2004)

    The Mujahedin-e Khalq (“MEK") has participated or incited terrorism against the United States.  MEK was responsible for the American embassy hostage crisis of 1979.  MEK members have also engaged in joint terrorist actions with Saddam Hussein. 
    Yet the defendants here gave the MEK money.  Because money flowing to MEK might be used to kill Americans (and, indeed, money given to MEK was used to support Saddam Hussein), giving money to MEK is a felony. 
    However, before MEK was designed a "foreign terrorist organization," it received several lawyers of due process.  As the panel noted: 
8 U.S.C. § 1189(a)(1) sets out a carefully articulated scheme for designating foreign terrorist organizations. To make the designation, the Secretary has to make specific findings that 'the organization is a foreign organization'; that 'the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title)'; and that 'the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States.' 
    Moreover, "[t]he Secretary also must furnish the congressional leadership advance notification of the designation and the factual basis for it, which Congress can reject,"  id at  § 1189(a)(2)(A)(i), and which is then “published in the Federal Register.”  § 1189(a)(2)(A)(ii).  Then the allegedly foreign terrorist organization gets judicial review.
    The D.C. Circuit has jurisdiction to overturn the Secretary's finding on many grounds, id. at § 1189(b)(3)(A), including that the designation is  “contrary to constitutional right, power, privilege, or immunity.”  Id. at § 1189(b)(3)(B).
    The designation expires in two years (unless Congress overrides it sooner, § 1189(a)(5), (6)), after which the process begins anew.  Id. at § 1189(a)(4)(B).
    Even though the defendants learned “after participating in a conference call with an MEK leader … that the State Department had designated the MEK as a foreign terrorist organization,” they gave MEK hundreds of thousands of dollars.  Accordingly, there were charged under 18 U.S.C. § 2339B(a)(1), which makes it illegal to provide “material support to designated foreign terrorist organizations.”
    The defendants (and the ACLU) were upset because they could not give money to an organization that wanted to kill Americans and thus they brought two challenges against the law.      First, "[t]he defendants’ central argument is that § 2339B denies them their constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization."  Id. at *17103-04.  In other words, they want to relitigate each designation in every federal circuit. 
    Like a person who fails to appear in court for trumped-up charges, a person who disobeys a court order, and a felon who uses a firearm before his predicate conviction is expunged, these supporters of terrorist argue that “due process prohibits a prosecution under § 2339B when the predicate designation was obtained in an unconstitutional manner or is otherwise erroneous.”  Id.
    The panel quickly disposed of this argument.  Supreme Court precedent is clear: If you disagree with a judicial or legislative finding, clear it up before you do something that, but for the predicate finding, would be legal.  That is, if you have a felony, don't purchase a firearm until you successfully strike the felony from your record.  If you disagree with an injunction, don't violate the order: Have a higher court dissolve it.  You can't later say, “Well, the conviction was invalid, or the judge should not have granted the injunction.”  Just as the government followed procedures before designating the MEK a foreign terrorist organization, so too should the defendants have followed procedures before giving MEK money.
    Their second argument was “(1) they have a First Amendment right to contribute to organizations that are not terrorist; (2) the statutory scheme denies them the opportunity to challenge the ‘foreign terrorist organization’ designation; therefore (3) it deprives them of their First Amendment right to make such contributions."  Id. at *17107.
    The panel reached the right result, stating that since Congress can regulate contributions to legitimate candidates for office, so too can it regulate expenditures to agencies designed as terrorist.  Id. at *17108 (“[Since contribution limits are constitutional] [a] fortiori, contribution of money to organizations that engage in terrorism, as well as expressing a political agenda with speech, can be restricted by Congress.”).  See also id. (“It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization.”)
    Here's the guts of the defendant's theory.  If someone is charged under one of BCRA's provisions preventing certain corporate contributions or expenditures, the company can argue that since its a media organization, its exempt.  Thus, the company can litigate it as part of its defense that BCRA doesn't cover it.  Here, the defendant's want to litigate that MTK is not a terrorist organization as part of its defense strategy.
    The Ninth Circuit denied the defendants that opportunity since MTK challenged its being designated as a terrorist organization thrice.  Since "the MEK protected its interests vigorously," the defendant's could not re-open its being designated a terrorist organization.  Id. at *17112.
    Although this decision has received a lot of negative press, it's yet another good one fom the Ninth Circuit.