U.S. Court Rules Against Parts of Anti-Terror Law

The Bush administration’s interpretation of sections of the 1996 federal anti-terrorism law violates the Constitution, the U.S. 9th Circuit Court of Appeals ruled Wednesday.

The 2-1 decision affects portions of the Antiterrorism and Effective Death Penalty Act of 1996 that have been a major tool in the efforts by U.S. Atty. Gen. John Ashcroft to combat terrorism. The Justice Department had no comment on the ruling but is expected to appeal.

The central problem, appeals court judges Harry Pregerson and Sidney Thomas wrote, is that federal prosecutors have interpreted the law to allow a person to be charged with giving aid to a terrorist group even if there is no evidence that the defendant knew about the group’s actions or even that the government had labeled it a terrorist organization.

In addition, the judges said, the provisions of the law barring “material support” to terrorist organizations are too vague and risk imposing liability on “moral innocents.”

To convict a defendant, “the government must prove beyond a reasonable doubt that the accused knew that the organization was designated as a foreign terrorist organization or that the accused knew of the organization’s unlawful activities,” Pregerson wrote.

The case involved individuals and groups who supported two organizations that the U.S. government considers terrorist -- the Kurdistan Workers Party (PKK), which opposes the Turkish government, and the Liberation Tigers of Tamil Eelam (LTTE), which opposes the Sri Lankan government.

Both organizations were designated as terrorist groups by Secretary of State Madeleine Albright in 1997. However, both groups also engage in other advocacy work on behalf of ethnic Kurds and Tamils. The U.S. supporters of the two groups who challenged the law argued that the assistance they provided was for humanitarian purposes.

The 1996 law states that people may be prosecuted if they “knowingly” provide material support to a terrorist group. When the law was being considered in the Senate, Pregerson noted, Sen. Orrin Hatch (R-Utah), chairman of the Senate Judiciary Committee, emphasized that “intent requirement.”

“I am convinced that we have crafted a narrow but effective designation provision ... while safeguarding the freedom to associate, which none of us would willingly give up,” Hatch said.

The Justice Department, however, has interpreted the “knowingly” language in the law to mean a person can be prosecuted so long as he knows the identity of the group to which he has given money. The person need not know about the group’s designation as terrorist or about its violent activities, the government says.

Under that interpretation, Pregerson said, “a person who simply sends a check to a school or orphanage” run by the Tamil Tigers could be convicted “even if that individual is not aware of ... any unlawful activities” by the group.

“Or, according to the government’s interpretation” of the statute, Pregerson said, “a woman who buys cookies from a bake sale outside of her grocery store to support displaced Kurdish refugees to find new homes could be held liable so long as the bake sale had a sign that the sale was sponsored by the PKK.”

The dissenting member of the appeals court panel, Judge Johnnie B. Rawlinson, said that the ruling would allow U.S. supporters of groups designated as terrorist to escape prosecution by pleading ignorance.

“No one disputes that the PKK and the LTTE are terrorist organizations,” Rawlinson wrote. “The record in this case reflects that the PKK’s terrorist activities have resulted in the death of over 22,000 individuals, primarily bombings,” she said, adding that the Tamil Tigers have “a similar history, engaging in bombings, gun battles, assassinations and machete attacks, causing widespread death and destruction.”

“Simply stated,” Rawlinson concluded, “the plaintiffs sought and secured a ruling that so long as they profess an intent to further only the legitimate goals of the terrorist organizations, their material support of these organizations should escape scrutiny or consequence.”

The court majority also said the law’s prohibition against providing “personnel” or “training” to a terrorist group is unconstitutionally vague. Pregerson emphasized that those terms could include constitutionally protected 1st Amendment activity, such as training someone to petition the United Nations or writing literature on the grievances of the Tamils in Sri Lanka.

Wednesday’s decision means that the law “cast an unconstitutionally broad net over innocent persons,” said Washington attorney David Cole of the Center for Constitutional Rights.

“This decision will mitigate the substantial chilling effect that this statute has cast over those who seek to provide humanitarian aid to conflict-ridden areas,” said Cole, a constitutional law professor at Georgetown Law School. The plaintiffs said that they had ceased providing aid to the PKK or the LTTE because they feared prosecution under the law.

The ruling upheld a decision made two years ago by U.S. District Judge Audrey Collins in Los Angeles. The appeals court ruling immediately affects cases in California and eight other Western states. But if it stands it could affect a number of other cases. The law was used, for example, to prosecute Mukhtar al-Bakri, a Yemeni American man who was sentenced to 10 years in prison by a federal judge in Buffalo, N.Y., on Wednesday for providing “material support” to Al Qaeda by providing “personnel.”

Had the court’s ruling been in effect in New York, it probably would have prevented that prosecution, Cole said.

Cole has filed a related case, now pending before a federal trial judge in Los Angeles, challenging similar provisions in the USA Patriot Act. That case is scheduled to be heard later this month.