A National Security Case Worth the Supreme Court's Attention

Back in April, I blogged over at PrawfsBlawg about the Ninth Circuit's troubling decision in United States v. Afshari, in which the court found no problem sustaining criminal convictions for contributing to designated Foreign Terrorist Organizations notwithstanding the fact that the D.C. Circuit had struck down the designations that formed the basis for the convictions on constitutional grounds.

As Judge Kozinski wrote in his dissent from the denial of rehearing en banc (which is worth reading in its entirety):

Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney. The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process.

To me, this strikes me as a case extremely deserving of the Supreme Court's attention (as I suggested back in April), and perhaps the most important national security issue before the Court this Term. [The cert. petition is available here, and the government's recently filed opposition to cert. is available here.] If we are going to embark on such an active program of prosecuting individuals who donate to organizatons designated as "Foreign Terrorist Organizations" by the State Department, the First Amendment demands that those designations be above constitutional reproach. Or, as Judge Kozinski put it,

[T]he 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.

Comments

[Larry Rosenthal]

Judge Kozinski's First Amendment analysis strikes me as a rather facile. He characterizes the designation as a prior restraint, but as I understand the case law, a prior restraint is a system in which the government reviews the content of speech to determine if it is to be permitted. The designation process does not involve review of the content of anyone's speech, and that fact seems to distinguish the cases on which the petitioners rely. At most, a prohibition on any form of "material aid" to a "foreign terrrorist organization" seems to me to involve an incidental restriction on speech that should be evaluated under the rather forgiving O'Brien test. That said, the fact that the petitioners never had notice and opportunity for hearing prior to the designation may be problematic, or maybe not given the broad powers that the executive, acting with congressional authorization, enjoys over foreign affairs, but Judge Kozinski's rhetoric seems to me to be considerably overstated.

Larry Rosenthal
Chapman University School of Law

[Steve Vladeck]

Larry -- I'll have to think a bit more about the prior restraint analysis... But it does strike me that Judge Kozinski is on to something vis-a-vis the original panel applying a determination that the D.C. Circuit itself held unconstitutional. Here, the government is prosecuting individuals for giving money to a charity the designation of which as a "Foreign Terrorist Organization" was struck down on constitutional grounds. If that is the law, then what is to stop the Secretary of State from designating charities with whose policies the present Administration disagrees as FTOs merely to stifle contributions thereto? Under the panel's opinion, even if such designations are unconstitutional, they cannot be collaterally attacked by criminal defendants. That, to me, is Judge Kozinski's central concern, and I think it is a convincing one. In our criminal tradition, we do not punish guilt by association...

-steve

[James Joyner]

Isn't this the court that ruled that it is not a violation of the 1st Amendment to restrict donations American citizens can give to American political candidates? Surely, if restricting free speech is permissible for the mere purpose of limiting the appearance of conflict of interest in our politics (an idea with which I, by the way, disagree strongly) surely it can be done for the purposes of stopping terrorists? Indeed, there is zero requirement to show that candidate X is a corrupt SOB before limiting the money given to him.

[Larry Rosenthal]

Steve: The constitutional violation, however, consisted of inadequate notice and hearing, and there was a remand to the agency to permit redesignation of the organization as a foreign terrorist organization utilizing proper procedures. Following the remand, there was a redesignation, and it was upheld on review. Thus, the designation was substantively proper, and was eventually upheld. Moreover, the indictment alleges that at the time the aid was provided, the designation was in effect, and when it was provided, the petitioners knew that they were aiding a designated foreign terrorist organization. So, as the case came to the Ninth Circuit, the petitioners knew that they were provided illegal aid to a designated terrorist organization, and rather than litigating to obtain injunctive relief against enforcement of the prohibition, they simply violated it. I really don't see what the constitutional problem is. The aid was provided to an organization that was properly designated as a foreign terrorist organization, and it was provided at a time when the petitioners knew that the designation was in effect. Under O'Brien, it seems to me that the government can forbid financial aid to organizations engaged in what amounts to acts of war against the United States and its allies, as long as the designations are substantively correct.

By the way, to me, the closer and more troubling case is the pending indictment in United States v. Iqbal, also blogged at this site, in which the statute was used to charge the operators of a satellite television system with aiding Hezbollah, a designated foreign terrorist organization, by granting its television station access to a satellite television system operating in the New York area. In that case, the "aid" consists of enabling Hezbollah to communicate its message to U.S. viewers. It is less clear to me that this sort of "aid" can be considered a content-neutral prohibition under O'Brien.

Larry