The First Amendment and Foreign Criminal Terrorist Organizations

The Ninth Circuit's been busy.

First, Jespersen. Then, the L.A. homeless case. Now, late today [hat tip: HJB] comes the denial of rehearing en banc in United States v. Afshari [original (amended) panel opinion here], along with yet another powerful dissent by what might fairly be seen as an increasingly frustrated Judge Kozinski.

Afshari is about a problem well documented in law & terrorism circles, but little recognized elsewhere: Because Title 18 prohibits the provision of material support to a "foreign terrorist organization" ("FTO"), much turns on the designation of such by the Secretary of State, as set out in 8 U.S.C. [sec.] 1189. In short, giving money to a foreign charity may or may not be a federal offense, depending on whether the charity has been designated an FTO.

The problem, as Judge Kozinski identifies, is that to the extent that the designation process itself raises constitutional concerns, the donation is entitled to First Amendment protection. As he puts it:

The crux of the case—the issue the panel has elided in each iteration of its opinion—is the process by which the designation was made. If the designation process does not comply with constitutional standards, then the designation is invalid and Rahmani’s donations are protected by the First Amendment. In order to determine whether that process was constitutional, we must rely on the guidance of Freedman v. Maryland, 380 U.S. 51 (1965), and McKinney v. Alabama, 424 U.S. 669 (1976).

Moreover, as the dissent highlights, the D.C. Circuit itself held that the Secretary's designation of the relevant organization in Afshari's case was unconstitutional. In Judge Kozinski's words:

The procedural history of this case perfectly illustrates the patent unconstitutionality of the terrorist organization designation process: Rahmani was indicted for sending money to MEK from 1997 to 2001, the very years during which the designation was admittedly unconstitutional. Had the D.C. Circuit followed the letter of the statute, it would have struck down the designation, see 8 U.S.C. § 1189(b)(3)(B), and Rahmani could not have been charged with a crime. The State Department could, of course, have re-designated MEK in 2001 using constitutional procedures, but it could not have retroactively designated it to criminalize Rahmani’s donations. See U.S. Const. art. I, § 9, cl. 3 (Ex Post Facto Clause).

That is, had the D.C. Circuit done what it should have, a new indictment would have violated the Ex Post Facto Clause.

[More below the fold.]

The actual mechanics of Judge Kozinski's analysis are worth reading yourself, and I'd be hard-pressed to quickly summarize them here. But his post-analysis discussion bears quoting in full:

I can understand the panel’s reticence to interfere with matters of national security, but the entire purpose of the terrorist designation process is to determine whether an organization poses a threat to national security. Under the Constitution, the State Department does not have carte blanche to label any organization it chooses a foreign terrorist organization and make a criminal out of anyone who donates money to it. Far too much political activity could be suppressed under such a regime.

In any event, our task in this case was simple. The D.C. Circuit had already done all of the hard work, examining MEK’s designation and finding it to be constitutionally inadequate. All we had to do was take the next logical step and hold that this inadequate designation could not form the basis for a criminal prosecution. The Supreme Court hasn’t hesitated to take a close look at the constitutionality of certain war on terror-related procedures—especially procedures that are still being tested and developed. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 537-38 (2004). We should be no less vigilant.

As the author of the Ninth Circuit's important 2000 decision in Humanitarian Law Project v. Reno, where the court upheld the constitutionality of banning contributions to FTOs, it's difficult to underestimate the significance of Judge Kozinski so forcefully dissenting here, and I think he's absolutely right.

Yes, part of the problem was with the D.C. Circuit's decision to remand a designation it held unconstitutional back to the Secretary, but only part of it. Criminal prosecutions are, and always should be, different. The notion that an individual can be prosecuted for making a contribution to an FTO the designation of which has been held to be unconstitutional (for the relevant time period, anyway) is patently offensive to the First Amendment, irrespective of the constitutional infirmities in the designation itself.

More to the point, the whole reason why the material support/designation framework was upheld in the first place was the assurance that the D.C. Circuit's review of the designations would be meaningful and effective. If it isn't, well... there's a remedy for that, too.