Humanitarian Law Project v. Reno

1998 WL 34089591 (9th Cir.)

United States Court of Appeals, Ninth Circuit.

HUMANITARIAN LAW PROJECT; Ralph Fertig; Ilankai Thamil Sangam; Tamils of Northern California; Tamil Welfare and Human Rights Committee; Federation of Tamil Sangams of North America; World Tamil Coordinating Committee; and Nagalingam Jeyalingam, Plaintiffs-Appellants,

Janet RENO, as Attorney General of the United States; United States Department of Justice; Madeleine Albright, as United States Secretary of State; and United States Department of State, Defendants-Appellees.

No. 98-56062.

October 13, 1998.

On Appeal from the United States District Court for the Central District of California the Honorable Audrey B. Collins, Judge Presiding

Appellants' Reply Brief and Brief of Cross-Appellees

[FN*]David Cole, c/o Georgetown University Law Center, 600 New Jersey Ave., NW, Washington, DC 20001, (202) 662-9078.

[FN*]Nancy Chang, Center for Constitutional Rights, 666 Broadway, 7th floor, New York, NY 10012.

Paul Hoffman, Carol A. Sobel, c/o Bostwick and Hoffman, 100 Wilshire, Suite 1000, Santa Monica, CA 90401, (310) 260-9585.

Visuvananthan Rukrakumaran, 875 Avenue of the Americas, New York, NY 10001, (212) 290-2925, Counsel for Appellants.

FN* Counsel of Record

*i TABLE OF CONTENTS

INTRODUCTION ... 1

ARGUMENT ... 6

I. BARRING TRAVEL TO OR TRADE WITH A FOREIGN NATION DOES NOT RAISE THE SAME FIRST AMENDMENT CONCERN THAT TARGETING ASSOCIATION WITH DESIGNATED POLITICAL ORGANIZATIONS DOES ... 6

II. AEDPA IS NOT SUBJECT TO INTERMEDIATE O'BRIEN SCRUTINY BECAUSE IT IS RELATED TO THE SUPPRESSION OF POLITICAL ASSOCIATION ... 10

III. THE FACT THAT MONEY IS FUNGIBLE DOES NOT JUSTIFY IMPOSING GUILT BY ASSOCIATION ... 17

IV THE FOREIGN AFFAIRS SETTING DOES NOT JUSTIFY VAGUE AND OVERBROAD LICENSING OF FIRST AMENDMENT ACTIVITY ... 20

V. AEDPA'S PROHIBITION ON THE PROVISION OF "TRAINING" AND "PERSONNEL" IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD ... 23

A. The District Court Properly Concluded That The Terms "Training" And "Personnel" Are Impermissibly Vague ... 25

B. The Terms "Training" and "Personnel" Are Unconstitutionally Overbroad ... 35

CONCLUSION ... 36

CERTIFICATE OF COMPLIANCE ... 37

*ii TABLE OF AUTHORITIES

American-Arab Anti-Discrimination Committee v. Reno (ADC I) 70 F.3d 1045 (9th Cir. 1995), later proceeding, 119 F.3d 1367 (9th Cir. 1967) (ADC II), cert granted, 118 S.Ct. 2059 (1998) ... 1,2,3,15,16

Aptheker v. Secretary of State 378 U.S. 500 (1964) ... 7,8

Baggett v. Bullitt 377 U.S. 360 (1964) ... 26

Board of Airport Commissioners v. Jews for Jesus, Inc. 482 U.S. 569 (1987) ... 35

Broadrick v. Oklahoma 413 U.S. 601 (1973) ... 35

Buckley v. Valeo 424 U.S. 1 (1976) ... 12, 13

Bullfrog Films, Inc. v. Wick 847 F.2d 502 (9th Cir. 1988) ... 15,21

Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg & Constr. Trades Council 485 U.S. 568 (1988) ... 27

Fleuti v. Rosenberg 302 F.2d 652 (9th Cir. 1962), vacated on other grounds, 374 U.S. 449 (1963) ... 29,30

Foti v. City of Menlo Park 146 F.3d 629 (9th Cir. 1998) ... 24

Freedom to Travel Campaign v. Newcomb 82 F.3d 1431 (9th Cir. 1996) ... 6,7,8

Grayned v. City of Rockford 408 U.S. 104 (1972) ... 24,25,29

Healy v. James 408 U.S. 169 (1972) ... 13,21

*iii Hooper v. California 155 U.S. 648 (1895) ... 27

Houston v. Hill 482 U.S. 451 (1987) ... 35

In re Asbestos Litigation 46 F.3d 1284 (3d Cir. 1994) ... 14

Information Providers Coalition v. FCC 928 F.2d 866 (9th Cir. 1991) ... 25

Kent v. Dulles 357 U.S. 116 (1958) ... 7

Kolender v. Lawson 461 U.S. 352 (1983) ... 23,26,33

Lanzetta v. New Jersey 306 U.s. 451 (1939) ... 26

Massieu v. INS 915 F. Supp. 681 (D.N.J. 1996, rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996) ... 22

Moore Ice Cream Co. v. Rose 289 U.S. 373 (1933) ... 27

NAACP v. Button 371 U.S. 415 (1963) ... 26

NAACP v. Claiborne Hardware 458 U.S. 886 (1982) ... 13,33

Nova Records, Inc. v. Sendak 706 F.2d 782 (7th Cir. 1983) ... 33

Palestine Information Office v. Schultz 853 F.2d 932 (D.C. Cir. 1988) ... 9,10

Regan v. Wald 468 U.S. 222 (1984) ... 7,8

*iv Reno v. American Civil Liberties Union 117 S.Ct. 2329 (1997) ... 25

Scales v. United States 367 U.S. 203 (1961) ... 18

Smith v. Goguen 415 U.S. 566 (1974) ... 23

Teague v. Regional Commissioner 404 F.2d 441 (2d Cir. 1968), cert denied, 394 U.S. 977 (1969) ... 8

Texas v. Johnson 491 U.S. 397 (1989) ... 10,12

United States v. Corrow 119 F.3d 796 (10th Cir. 1997) ... 34

United States v. Eichman 496 U.S. 310 (1990) ... 12

United States v. Harriss 347 U.S. 612 (1954) ... 26

United States v. Locke 471 U.S. 84 (1985) ... 27

United States v. Maroun 739 F. Supp. 684 (D. Mass. 1990) ... 30

United States v. O'Brien 391 U.S. 367 (1968) ... 10

United States v. Robe?? 389 U.S. 258 (1967) ... 13,21

Veterans and Reservists for Peace in Vietnam v. Regional Commissioner 459 F.2d 676 (3d Cir.), cert denied, 404 U.S. 933 (1972) ... 8

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489 (1982) ... 25

*v Walsh v. Brady 927 F.2d 1229 (D.C. Cir. 1991) ... 8

Zemel v. Rusk 381 U.S. 1 (1965) ... 7

STATUTES

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) ... passim

8 U.S.C. §1189(a)(8) ... 2,22

8 U.S.C. §1189(b) ... 22

18 U.S.C. §2339A(b) ... 24,28

18 U.S.C. § 2339B(a) ... 24,28,34

SECONDARY SOURCES

H.R. Report No. 104•383, 1996 U.S.C.C.A.N. 944 (1995) ... 28

American Heritage Dictionary of the American Language (3d ed. 1996) ... 31

Amsterdam, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960) ... 34

1 W. LaFave & A. Scott, Jr., Substantive Criminal Law (1986) ... 34

*1 INTRODUCTION

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives a government official unprecedented power to criminalize political associational activity with designated groups of her choosing. The Secretary of State need only find that a foreign group has engaged in some use of force and that its activities threaten the United States' "economic interests," and U.S. citizens are then criminally prohibited from supporting the group. AEDPA does not require any showing of specific intent to further illegal ends. Indeed, its criminal sanction -- up to 10 years in prison -- applies even where an individual conclusively proves that the support was intended and in fact was used solely for lawful activities.

The reason that no other law on the books today gives a government official such power to blacklist association with political organizations is simple: It has long been established that supporting a political organization is a protected associational act, and that association with a group cannot be penalized absent specific intent to further the group's illegal ends. It is equally well established that a statute like AEDPA that authorizes government officials to license First Amendment activity requires clear standards and the opportunity for prompt and meaningful judicial *2 review. Yet AEDPA, as the government concedes, was enacted for the very purpose of penalizing associational support without a showing of specific intent. Gov. Br. at 8. [FN1] And an individual facing criminal prosecution under AEDPA is barred from challenging the Secretary's designation of the group as a "foreign terrorist organization." 8 U.S.C. §1189(a)(8).

FN1. References to the government's "Brief for the Appellees/Cross-Appellees" will be designated "Gov. Br." References to plaintiffs-appellants' opening brief will be designated "HLP Br."

In our opening brief, we showed that these provisions of AEDPA are invalid under a long line of Supreme Court decisions protecting monetary contributions as a right of expression and association, and holding that association cannot be penalized absent individualized specific intent to further illegal ends. HLP Br. At 19-26. In addition, we showed that that result is mandated by this Court's recent decisions in American-Arab Anti-Discrimination Committee v. Reno, 70 F.3d 1045 (9th Cir. 1995) (ADC I), later proceeding, 119 F.3d 1367 (9th Cir. 1997) (ADC II), cert. granted, 118 S. Ct. 2059 (1998), both of which held that providing material support to a foreign terrorist organization is protected by the First Amendment absent specific intent to further the group's illegal ends. HLP Br. at 27-28. AEDPA makes a crime of the very activity this Court has held to be protected First Amendment *3 activity. Significantly, while the district court went to great lengths to distinguish ADC, the government does not defend the district court's distinctions, and instead concedes that ADC "casts a pall over the validity of the Antiterrorism Act in this Circuit." Gov. Br. at 43.

The government's defense of the statute can be reduced to four propositions: (1) because the government may regulate travel and trade with designated foreign countries without contravening the First Amendment, it may also criminalize material support to foreign political organizations; (2) the statute penalizes conduct, not association, and therefore need only satisfy the intermediate United States v. O'Brien standard of review; (3) because money is fungible and Congress has stated that any support for a foreign terrorist organization frees up resources for terrorist activities, it is necessary to ban all material support for such organizations; and (4) the statute's broad delegation of unreviewable licensing authority, which defendants do not dispute would be unconstitutional with respect to domestic political association, is permissible because AEDPA involves foreign affairs.

None of these propositions withstands scrutiny. First, barring trade with a foreign nation is materially different from prohibiting support of a political group. The former act does not target political speech or association as such, but the latter does. The Supreme Court has recognized precisely the distinction that the *4 government seeks to elide, upholding a ban on travel to Cuba while striking down bans on travel by Communist Party members. See Point I, infra.

Second, the intermediate scrutiny applied in O'Brien is inapplicable because that standard only applies to statutes unrelated to the suppression of speech or association. Thus, a law that proscribes travel to Cuba or destruction of draft cards is subject to intermediate scrutiny because, while it may have some incidental effect on speech, it is not targeted at speech or association as such. AEDPA, however, does not generally criminalize material support, but only when done in association with select political groups. As such, it directly targets political association in a content-based way, and must satisfy strict scrutiny. See Point II, infra.

Third, the government's "freeing up" argument both proves too much and is undermined by the very terms of AEDPA. If the fact that support of lawful activities frees up other resources for unlawful activities were sufficient to justify guilt by association, there would be nothing left of the First Amendment right. And in any event, the government's claim that it is "necessary" to stop all support to such groups is belied by the statute itself, which allows unlimited donations of medicine and religious articles, even though such donations would have the same "freeing up" effect as the lawful support plaintiffs seek to provide. See Point III, infra.

*5 Fourth, the government does not dispute that a statute giving a government official unreviewable power to selectively criminalize support of domestic political organizations would violate the First Amendment. Yet it cites no authority for its claim that the foreign affairs setting permits what would indisputably be unconstitutional in the domestic setting. The Supreme Court has rejected that proposition, applying the same First Amendment standards to regulation of association with foreign-dominated and domestic groups. See Point IV, infra.

In addition, the government cross-appeals the district court's preliminary injunction against enforcement of two terms in the challenged act, those that prohibit the provision of "training" or "personnel" to designated groups. The district court's decision that plaintiffs are likely to succeed on their claim that these terms are unconstitutionally vague is plainly correct, and may also be affirmed on the related ground that the terms are substantially overbroad. "Training" could encompass everything from advice on how to present a human rights claim to the sponsorship of a symposium on the rights of minority populations. And "personnel" could include literally any personal service undertaken in support of the group, from distributing its literature to writing an op-ed on its behalf. These terms are so vague that ordinary citizens can only guess as to what the terms mean, and so broad that they criminalize wholly innocent and core political activity. See Point V, infra.

*6 ARGUMENT

I. BARRING TRAVEL TO OR TRADE WITH A FOREIGN NATION DOES NOT RAISE THE SAME FIRST AMENDMENT CONCERN THAT TARGETING ASSOCIATION WITH DESIGNATED POLITICAL ORGANIZATIONS DOES

The government's principal argument in defense of the statute turns on a syllogism. It argues that: the government can bar trade with a foreign nation; a foreign nation is a "foreign entity"; a foreign political organization is also a "foreign entity"; and therefore, the government may bar support for a foreign political organization. Gov. Br. at 25-26, 32-36. The argument's critical premise -- highlighted by the government's use of the term "foreign entity" -- is that there is no meaningful First Amendment distinction between official action predicated on nationhood, and official action predicated on a citizen's political associations. This premise is demonstrably false.

The First Amendment protects the right to political association, but does not protect the right to trade with or travel to a foreign nation. Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1441 (9th Cir. 1996) ("no First Amendment rights are implicated" by travel, even to gather information). Thus, a restriction on travel to Cuba is not targeted at First Amendment activity. It may have an incidental effect on First Amendment activity, if, for example, someone seeks to travel to Cuba *7 for newsgathering or other First Amendment purposes. But all sorts of laws not directed at First Amendment activity have such an incidental effect. For example, a law against vandalism of public property has the incidental effect of prohibiting political graffiti on a public building, but is not targeted at speech as such.

The Supreme Court and the lower courts have consistently recognized the distinction the government seeks to elide through the use of the term "foreign entities." The courts have upheld laws barring trade with or travel to a foreign nation, even where persons seek to engage in those activities for First Amendment purposes. See, e.g., Regan v. Wald, 468 U.S. 222 (1984); Zemel v. Rusk, 381 U.S. 1 (1965); Freedom to Travel Campaign, 82 F.3d at 1441. But the Supreme Court has also consistently struck down laws that target association with foreign political organizations. Thus, in Regan v. Wald, the Court expressly distinguished two prior decisions, Aptheker v. Secretary of State, 378 U.S. 500 (1964), and Kent v. Dulles, 357 U.S. 116 (1958), in which it had invalidated decisions to deny passports to members of the Communist Party.

As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passports on the basis of political ... affiliation, but simply imposed a general ban on travel to Cuba." Regan, 468 U.S. at 241. In Regan and Zemel and the appellate court decisions that have followed them, the *8 challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because they were "across-the-board restriction[s]" not targeted at association with a political group. 468 U.S. at 241. [FN2] By contrast, AEDPA does not impose any across-the-board restriction, but selectively criminalizes "material support" only when done in association with particular political groups.

FN2. In Freedom to Travel Campaign, 82 F.3d at 1441, plaintiffs challenged across-the-board restrictions on travel to Cuba. This Court

simply held that the restrictions were valid under Zemel, and distinguishable from those invalidated under Aptheker and Kent. Walsh v. Brady, 927 F.2d 1229, 1234-35 (D.C. Cir. 1991), also involved restrictions on travel to Cuba, and similarly found the restrictions valid under Zemel, because they imposed a general ban on travel payments, and were not directed at the "exercise of First Amendment rights." In Veterans and Reservists for Peace in Vietnam v. Regional Commissioner, 459 F.2d 676, 681 (3d Cir.), cert. denied, 404 U.S. 933 (1972), the court upheld analogous restrictions on transactions with Vietnam on the ground that they did not "directly regulate[] speech or expression arguably protected by the First Amendment," but imposed a general ban on all transactions. Finally, Teague v. Regional Commissioner, 404 F.2d 441, 445 (2d Cir. 1968), cert. denied, 394 U.S. 977 (1969), upheld foreign asset control regulations as applied to publications from North Vietnam and China on the ground that the restrictions applied across-the-board, and therefore "[t]he restriction of first amendment freedoms is only incidental to the proper general purpose of the regulations: restricting the dollar flow to hostile nations." And the court stressed that "there is no censorship of selected materials; all publications from the specified nations are treated alike." Id. By contrast, AEDPA does not generally prohibit material support, but selectively punishes it only when done in association with certain

political groups.

*9 All of the cases the government relies upon involve laws targeted at nations, not political associations. The government is of course correct to point out that those cases did not require showings of specific intent, Gov. Br. at 35, but the government misunderstands the reason why this is so: the laws challenged simply were not targeted at political association as such. Notwithstanding the government's attempt to sweep political organizations under the category of "foreign entities," foreign nations have a status quite distinct from political associations. As a nation, our government routinely engages in nation-to-nation diplomacy, and must often take action specific to certain nations that limits what U.S. citizens may do. Targeting a nation does not target political association as such. But the same is not true of targeting political organizations. Because our Constitution protects the right of political association, the government is limited in what it can do to individuals based on their associational acts. In particular, it may not criminalize association with a group absent specific intent to further the group's illegal ends. [FN3]

FN3. The only case that even apparently conflates the nation/political organization distinction is Palestine Information Office v. Shultz, 853

F.2d 932 (D.C. Cir. 1988), which upheld the State Department's closing of the Palestine Liberation Organization's foreign mission. But in fact this case also respects the distinction, as it upheld the decision only because it did not target associational support of the PLO. The law challenged, the Foreign Missions Act, governed nation-to-nation diplomacy. While the PLO was not a nation as such, the State Department's actions against it were pursuant to its authority to act toward nations; it simply refused to recognize its mission, just as it sometimes does with nations. 853 F.2d at 936. The court upheld this decision only upon finding that it did not restrict in any way the rights of citizens to "advocat[e] the Palestinian cause" or to associate with the PLO or others; it merely closed the mission qua mission. 853 F.2d at 939-41. AEDPA, by contrast criminalizes any associational support of the designated political groups.

*10 II. AEDPA IS NOT SUBJECT TO INTERMEDIATE O'BRIEN SCRUTINY, BECAUSE IT IS RELATED TO THE SUPPRESSION OF POLITICAL ASSOCIATION

The government's argument that AEDPA should be subject only to the intermediate scrutiny reserved for laws of general applicability that incidentally burden First Amendment rights fails for the same reason that its analogy to laws barring travel to foreign nations fails. It seeks to apply the standard for laws not targeted at speech or association to a law directly targeted at association. The intermediate standard of review set forth in United States v. O'Brien, 391 U.S. 367 (1968), applies only to laws of general applicability not targeted at speech or association, such as a law barring travel to Cuba or destruction of draft cards. Thus, in order for O'Brien to apply, the law in question must be "unrelated to the suppression of expression," or in this case, association. Texas v. Johnson, 491 U.S. 397, 407-10 (1989).

*11 Intermediate scrutiny would be appropriate, for example, if AEDPA barred all export of nuclear materials, and plaintiffs claimed that they sought to export such materials to a particular organization as an act of political association. In that case, the law would be generally applicable to all nuclear exports, and its incidental effect on those who seek to export as an act of political association would trigger only O'Brien review. AEDPA, however, generally permits the provision of material support, and prohibits it only when done in association with designated political organizations.

Under AEDPA, for example, citizens may provide any material support whatsoever, including "currency or other financial securities, financial services, ... training [and]... personnel," to the Irish Republican Army, but citizens who provide the same support to the PKK or LTTE, even for wholly lawful ends, are subject to criminal prosecution. Plaintiffs in this case would be permitted to do everything that they are now barred from doing if they supported an undesignated organization, even one that has engaged in terrorism. Thus, the law does not criminalize any material support except by virtue of its association with specified political groups. As a result, AEDPA is directly "related to the suppression of association," indeed is triggered only by association, and is therefore subject to strict scrutiny.

*12 The government argues, however, that AEDPA is unrelated to the suppression of expression and association because persons remain free to engage in other types of speech and association: they may "speak and advocate as they wish," and they may associate with foreign terrorist organizations as long as they do not provide any material support in doing so. Gov. Br. 46-47. This misperceives the "unrelated to the suppression of expression" inquiry. On this theory, no law would be "related to the suppression of expression" or association unless it absolutely penalized all speech and association. If the government is right, the flagburning statutes invalidated in Texas v. Johnson, 491 U.S. 397, and United States v. Eichman, 496 U.S. 310 (1990), under strict scrutiny would have been subject to intermediate O'Brien scrutiny because citizens remained free to express opposition to U.S. policies in any number of ways other than flagburning. Yet the Supreme Court rejected application of O'Brien in both cases, finding that the laws were in fact "related to the suppression of expression." Similarly, on this view, the campaign spending limits in Buckley v. Valeo, 424 U.S. 1 (1976), should have been subjected to intermediate O'Brien scrutiny, since individuals remained free under the law "to speak and advocate as they wish[ed]" and to associate with political candidates, as long as they did not violate the monetary limits. Again, however, the *13 Court rejected the O'Brien test because the law was "related to the suppression of expression." 424 U.S. at 16.

The proper inquiry is not whether the law prohibits all or only some speech or association, but rather whether the law is directed at conduct irrespective of its expressive or associational character, or whether the law is directed at conduct because of its expressive or associational character. Here, AEDPA's criminal prohibitions are triggered only when certain acts are conducted in association with specific political groups. As such, it is directly targeted at association and must satisfy traditional strict scrutiny.

Traditional strict scrutiny in this setting leads to one result: the only narrowly tailored way to penalize support of groups engaged in illegal conduct is to penalize solely those who specifically intend to further the group's illegal ends. Penalizing association without evidence of such specific intent punishes wholly innocent associations. Thus, as illustrated in our opening brief, the Court has consistently held that absent specific intent, political association may not be burdened, even in non-criminal ways. HLP Br. at 22-25 (discussing, among others, Healy v. James, 408 U.S. 169 (1972), NAACP v. Claiborne Hardware, 458 U.S. 886 (1982), and United States v. Robel, 389 U.S. 258 (1967)).

*14 The government's attempt to distinguish these cases on the ground that they involved association rather than material support fails. First, as illustrated above, AEDPA does not target material support per se, but only when done in association with certain political groups. Second, the government offers no response to the legion of Supreme Court and Ninth Circuit decisions holding that raising and providing material support for a political organization is at the core of political association. HLP Br. at 19-20 and n.6. [FN4] Similarly, the government offers no response to our argument that if the distinction it seeks to draw between association and material support were correct, the thousands of charitable donors to the NAACP could have been held responsible for illegal conduct in the NAACP-led boycott absent proof of specific intent, even though the Supreme Court held that the NAACP's leaders could not be held responsible. HLP Br. at 24.

FN4. Indeed, were this Court to hold that the specific intent standard does not apply to associational support, but only to association in the abstract, it would be in direct conflict with the Third Circuit's decision in In re Asbestos Litig., 46 F.3d 1284, 1290 (3d Cir. 1994), which applied the specific intent principle to monetary contributions to a trade association.

The government also argues that there may be a distinction between association with domestic organizations and with foreign organizations, Gov. Br. at 37-38, but that argument cannot explain the many cases applying this principle *15 without reservation to the Communist Party, a foreign-dominated organization. The plaintiffs' activities in this case, like those that were the subject of the Communist Party cases, are inextricably both domestic and foreign; plaintiffs associate here for the purpose of associating with and supporting foreign organizations whose causes they support. The Supreme Court has never suggested that the fact that an association has a foreign element diminishes its First Amendment support, and this Court has consistently held to the contrary. Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988); ADC I, 70 F.3d at 1063; ADC II, 119 F.3d at 1376.

Significantly, the government concedes, as it must, that this Court's prior decisions in ADC I and ADC II "cast[] a pall over the validity of the Antiterrorism Act in this Circuit." Gov. Br. 43. The government does not even attempt to defend the district court's argument that ADC is distinguishable. The best the government can muster is to state, without offering any reason, that the case "should be limited to the specific fact; of that litigation and not applied here." Id. at 44. But without a rationale for distinguishing it, ADC must be followed. As we showed in our opening brief, the Ninth Circuit held in ADC I and ADC II that the government's motive for targeting plaintiffs for deportation violated the First Amendment because it was predicated on association with and support of a foreign terrorist organization, *16 without any evidence of specific intent to further illegal ends. 70 F.3d at 1063; 119 F.3d at 1376. As the government's silence concedes, those decisions control here.

The government is left to argue that ADC II may have no precedential value if the government prevails in the Supreme Court, Gov. Br. at 42-43, presumably because if the Court rules for the government and vacates ADC II on jurisdictional grounds, that decision will no longer have precedential value. But as we argued in our opening brief, even such a result would leave the 1995 ADC I decision standing. The government replies that it has "argued to the Supreme Court that there never was jurisdiction over the merits." Gov. Br. at 43. But whatever the government has argued, the only decision that the Supreme Court has agreed to review is ADC II. And in granting review, the Supreme Court itself rewrote the question presented to limit it to whether jurisdiction exists "in light of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996." Reno v. American-Arab Anti-Discrimination Comm., 118 S. Ct. 2059 (1998). The 1996 statute obviously has no bearing on whether jurisdiction existed in 1995. Moreover, the government never appealed the 1995 ADC I decision. Thus, ADC I will continue to have precedential effect no matter what the Supreme Court does vis-a-vis ADC II. [FN5]

FN5. Even where a decision is vacated, its holdings on other grounds are persuasive authority if the Supreme Court has not addressed that issue. United States v. Clark, 617 F.2d 180, 184 n.4 (9th Cir. 1980). And where a case is reversed rather than vacated, its holdings on issues not reached by the Supreme Court continue to be binding. Ballard v. Savage, 65 F.3d 1495, 1500 (9th Cir. 1995) (court "properly relies" on test from case reversed on other grounds by Supreme Court because Supreme Court did not specifically reject the test). Thus, it is not even clear that a government victory in the Supreme Court will undermine ADC II's discussion of the merits, much less ADC I.

*17 III. THE FACT THAT MONEY IS FUNGIBLE DOES NOT JUSTIFY IMPOSING GUILT BY ASSOCIATION

The government agues that because money is fungible, it is necessary to criminalize all material support to terrorist organizations, even support intended and used for wholly innocent and nonviolent activities. In its view, the fungibility of support has two consequences: (1) money given for a lawful purpose may be misused for an unlawful purpose; and (2) money given and used for a lawful purpose will free up other resources that can be used for unlawful purposes.

Plaintiffs do not dispute that financial and material support may have such effects, although they dispute that it will always have such effects. It is far from clear, for example, how a training session in human rights advocacy or a box of childrens' books for an orphanage could be misused for terrorist ends. It is also not clear that such donations will in fact free up resources for terrorist ends; that depends on whether the organization would have expended its "terrorist" resources *18 on human rights advocacy or childrens' books in the absence of the donation. But plaintiffs concede that as a conceptual matter, support given to any group may free up resources that the group might use for other ends.

The problem with this argument as a justification for AEDPA is two-fold. First, it would eliminate the prohibition on guilt by association. On this view, it would be permissible to ban anyone from providing anything of value to any organization that might engage in an illegal activity at some point. The state could make it a crime to deliver newspapers to known gang members, to pay dues to the Communist Party, or to provide a donation to the Democratic Party, on the ground that each of these organizations has engaged and may engage in the future in illegal ends. As the Supreme Court has said, however, such a broad-brush approach would criminalize wholly innocent associational activity, and thus is impermissible. Scales v. United States, 367 U.S. 203, 229 (1961) ("If there were a [] blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression and association would be injured.").

Second, the government's argument is belied by AEDPA itself, which expressly permits the unlimited provision of material support, in the form of medicine and religious articles, to designated terrorist organizations. If, as the government and its amicus repeatedly assert, "any" provision of material support to *19 such groups has the potential to free up resources for terrorist activities, these forms of material support would equally be prohibited. Yet individuals and groups may freely donate millions of dollars worth of medicine, a resource easily resold, and in any event needed by many organizations, especially those involved in military conflict. Thus, the government's argument that it is necessary to bar all material support cannot be squared with the statute itself, which does not ban all material support. [FN6]

FN6. The government replies that the existence of some exceptions in the Cuba travel embargo did not invalidate other prohibitions on travel, Gov. Br. at 47 n. 11, but that is because the government did not justify that law on the ground that it was necessary to cut off all support to Cuba. Rather, the justification for the embargo was to impose economic sanctions

on that nation, and sanctions need not be all or nothing. Taking the government at its word in this case, however, a prohibition on material support must be all or nothing to defeat the problem of fungibility. Notably, however, AEDPA does not bar all material support, suggesting that the fungibility argument is a pretext for efforts to discourage political association with disfavored groups.

The government and its amicus also make various allegations regarding the misuse of charitable donations by certain groups in the past. Significantly, the district court made no finding to that effect, for it is essentially irrelevant to the inquiry. [FN7] Plaintiffs do not dispute that where support intended for terrorist activity is *20 provided under the cover of charitable donations, it may be criminalized, just as RICO criminalizes the use of otherwise legitimate businesses to launder criminal funds. But that is not at issue, because the government concedes that AEDPA is not such a statute. AEDPA criminalizes material support even where it is undisputed that it was intended and in fact used only for wholly nonviolent and lawful purposes. Just as the state could not ban all political campaign contributions or expenditures by arguing that in some instances they are misused to bribe candidates, so the government may not justify AEDPA's criminalization of wholly legitimate material support by positing that material support of entirely lawful and nonviolent activities may be misused.

FN7. Plaintiffs stated below that because the government's claims about the LTTE and the PKK are legally irrelevant, they saw no need to respond to them, but that if the court deemed them material, plaintiffs would be prepared to dispute them. The district court evidently agreed with plaintiffs that they are immaterial, as it made no findings in this regard. Notably, the government fails to identify a source for any of its assertions, which are at best multiple hearsay.

IV. THE FOREIGN AFFAIRS SETTING DOES NOT JUSTIFY VAGUE AND OVERBROAD LICENSING OF FIRST AMENDMENT ACTIVITY

The government does not dispute the contention advanced in our opening brief that licensing a government official to blacklist political organizations and criminalize support of their lawful activities would violate the First Amendment. HLP Br. at 40-41. It argues, however, that what would be plainly unconstitutional *21 in a domestic setting is constitutional because it affects foreign affairs, and cites cases noting that broad delegations may be permissible in foreign affairs. Gov. Br. at 56-57. But none of the cases it cites involves the direct regulation of speech or association. By contrast, the Communist Party cases involved direct regulation of association, yet notwithstanding claims of national security, the Court applied the same stringent standard of scrutiny that it applied to cases involving association with wholly domestic organizations. Compare Healy v. James, 408 U.S. 169 (association with Students for a Democratic Society) with United States v. Robel, 389 U.S. 258 (association with Communist Party). As this Court has held, "there is no 'sliding scale' of First Amendment protection under which the degree of scrutiny fluctuates in accordance with the degree to which the regulation touches on foreign affairs." Bullfrog Films, Inc., 847 F.2d at 512.

There may well be situations in which the First Amendment must bow to significant national security concerns. Strict scrutiny will uphold, for example, laws narrowly tailored and necessary to respond to a specific and demonstrated threat. But AEDPA is not such a law. It allows the Secretary of State to designate any foreign group that has engaged in or threatened an unlawful use of a firearm, and whose activities threaten even the "economic interests" of the United States. Even if national security were a legitimate justification for some narrow constraints on *22 speech, that justification cannot sustain a law that broadly permits the criminalization of wholly innocent support of wholly lawful activities, upon a finding that some of the group's other activities threaten only our "economic interests." If economic ends or vaguely worded (and, the government concedes, unreviewable, Gov. Br. at 56) "foreign relations" authorized the selective penalization of political speech or association, there would be little left of the First Amendment. [FN8]

FN8. The Secretary's designation is unreviewable in two senses. First, as the district court acknowledged and the government concedes, a court is not likely to be able to second-guess the Secretary of State on what threatens the United States' "national defense, foreign relations, or economic interests." ER 151; Gov. Br. at 56; HLP Br. at 40 n. 16. Second, the individual prosecuted for providing material support is absolutely precluded from challenging the designation. 8 U.S.C. §1189(a)(8). Only the group designated can bring a challenge, and only within 30 days of the designation. Most groups have not and will not bring such challenges because the review procedure is for all practical purposes a charade. The government may present secret evidence, the designated organization may not present any evidence, and the designation standard the Secretary employs is non-justiciable. 8 U.S.C. §1189(b).

The government also argues that because one is subject to criminal sanctions only after a foreign organization's designation is published in the Federal Register, the public has sufficient notice of the prohibited conduct, thereby distinguishing this statute from the "foreign relations" statute held unconstitutionally vague in Massieu v. INS, 915 F. Supp. 681, 698-703 (D.N.J. 1996), rev'd on other grounds, 91 F.3d 416 (3d Cir. 1996). Gov. Br. at 58. But it offers no response to the point that the *23 Federal Register notice does nothing to address the unfettered discretion that AEDPA affords the Secretary in her designations. A similar domestic ordinance certainly would not be upheld against a vagueness challenge merely because it required the Mayor to publish a list of disfavored groups. Moreover, the government's argument fails to address the fact that "the more important aspect of vagueness doctrine 'is not actual notice, but the other principal element of the doctrine -- the requirement that a legislature establish minimal guidelines to govern law enforcement."' Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). The publication requirement in no way addresses "the more important"problem of delegating such open-ended and unreviewable power to license association to a government official.

V. AEDPA'S PROHIBITION ON THE PROVISION OF "TRAINING" AND "PERSONNEL" IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD

The district court correctly concluded that plaintiffs are likely to succeed on their claim that AEDPA's prohibitions on the provision of "training" and "personnel" are unconstitutionally vague because they are "not 'sufficiently clear so as to allow persons of "ordinary intelligence a reasonable opportunity to know what *24 is prohibited.""' [FN9] ER 157 (quoting Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) and Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). See also ER 157-160 and 179-85. The terms "training" and "personnel" are so open-ended that they might reasonably encompass virtually any human resources offered to a designated organization, from the distribution of literature to the writing of a letter to a member of Congress to training in human rights advocacy or peacemaking. For related reasons, those provisions are also substantially overbroad, for whatever they mean, they evidently proscribe a substantial amount of wholly innocent protected First Amendment activity. On either basis, the district court's preliminary injunction against enforcing the prohibitions on "training" or "personnel" should be affirmed. ER 186.

FN9. AEDPA criminalizes the provision of "material support or resources" to a designated foreign terrorist organization under 18 U.S.C. § 2339B(a). The term "material support or resources" is defined in another AEDPA provision, 18 U.S.C. § 2339A(b), 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 religious materials." (Emphasis added.)

*25 A. The District Court Properly Concluded That The Terms "Training" And "Personnel" Are Impermissibly Vague

The vagueness doctrine serves three important values:

... First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked."

Grayned, 408 U.S. at 108-109 (footnotes and internal citations omitted).

The degree of precision and clarity required by the vagueness doctrine increases with the gravity of the penalty imposed and the importance of the rights at stake. E.g., Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982); Information Providers' Coalition v. FCC, 928 F.2d 866, 874 (9th Cir. 1991). AEDPA must be subjected to the most stringent vagueness scrutiny both because it imposes criminal sanctions and because it threatens to chill speech and associational rights. *26Reno v. American Civil Liberties Union, 117 S. Ct. 2329, 2344-2345 (1997); Baggett v. Bullitt, 377 U.S. 360, 372 (1964); NAACP v. Button, 371 U.S. 415, 432-33 (1963); Kolender v. Lawson, 461 U.S. at 357; United States v. Harriss, 347 U.S. 612, 617-18 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

The prohibition on "personnel" could conceivably cover any provision of personal services, including a large number of core political activities. For example, the Humanitarian Law Project ("HLP") and Judge Ralph Fertig seek to continue advocating on the PKK's behalf before such bodies as the United Nations Commission on Human Rights and the United States Congress. In addition, the HLP and Judge Fertig wish to continue writing and distributing publications supportive of the PKK and working with PKK members at peace conferences and other meetings towards the cause of peace and justice for the Kurds. Similarly, the World Tamil Coordinating Committee wishes to continue distributing LTTE literature and informational material and advocating on behalf of the LTTE in support of human rights for the Sri Lankan Tamils. ER 158-59; 182-83.

The government does not dispute that the above-described activities are protected by the First Amendment, but offers two narrowing constructions of the term "personnel" in an attempt to avoid criminalizing this clearly protected conduct. First, it argues that the term be confined to situations where "employees or others *27 are working under the direction or control of a specific entity." Gov. Br. at 61. However, the government fails to provide any support for such a construction. The asserted rationale for the statute -- that all support must be prohibited because any support may free up resources for terrorist activity -- is flatly inconsistent with limiting "personnel" to actions taken "under the direction or control" of a terrorist group, because action taken on a group's behalf but not under its control would have the same freeing up effects. More problematic still, the statute contains no evidence to support the government's modification. Courts may not rewrite statutes in an attempt to save them. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (stating that not every construction, but only "'every reasonable construction must be resorted to, in order to save a statute from unconstitutionality."') (quoting Hooper v. California, 155 U.S. 648, 657 (1895); U.S. v. Locke, 471 U.S. 84, 96 (1985) ("We cannot press statutory construction 'to the point of disingenuous evasion' even to avoid a constitutional question.") (quoting Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933)). Finally, interpreting the statute to limit "personnel" to work done under the "direction or control" of a foreign organization would not save the statute, for such activity as writing, speaking, and distributing literature are still protected by the First Amendment even when done under the direction or control of another.

*28 Second, the government argues, relying on a passage unearthed from an obscure House Report, that the activities of "think[ing], speak[ing], or opin [ing] in concert with, or on behalf of," a designated organization should not be construed as the provision of "personnel." [FN10] Gov. Br. at 61 (quoting H.R. Report No. 104-383, 1996 U.S.C.C.A.N. 944, (1995), at 44). The government does not clarify whether this means that such activities, even when done "under the direction or control" of a foreign terrorist organization, are not covered, only further muddying the waters. Again, this argument is flatly inconsistent with the government's insistence in the rest of its brief that all material support must be banned, for these activities would have the same "freeing up" effects.

FN10. H.R. Rep. No. 104-383 was issued by the House Judiciary Committee on December 5, 1995, and accompanied House bill, H.R. 1710, entitled the Comprehensive Antiterrorism Act of 1995. Notably, neither this report nor this are referenced in the legislative history notes for 18 U.S.C. §§ 2339A(b) and 2339B(a), either in the U.S. Code Service or the U.S. Code

Annotated. Thus, it would take a great deal of resourcefulness to uncover this report and then locate the passage in the report upon which government relies.

More importantly, the government neglects to disclose that the House Report it quotes from did not accompany AEDPA, but is an earlier report attached to a bill that was never enacted. The House Conference Report that actually accompanied AEDPA, H.R. Rep. No. 104-518 (1996), does not contain the language the *29 government cites, and merely lists the other report as one of five "related reports," without specifying what relevance, if any, the related reports have. Thus, the report upon which the government relies is a dubious and at best secondary source of AEDPA's legislative history.

Even assuming arguendo that a House Report that is but one in a laundry list of reports "related" to the report that accompanied AEDPA merits treatment as AEDPA's legislative history, the government's reliance on the report as a basis for narrowing the term "personnel" must fail for a more fundamental reason. The vagueness doctrine looks to "the person of ordinary intelligence" in determining whether a law provides "a reasonable opportunity to know what is prohibited." Grayned, 408 U.S. 108. In keeping with this consideration, legislative history is not permitted to serve as a basis for clarifying an otherwise unclear statutory provision. As this Court explained in Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962), vacated on other grounds, 374 U.S. 449 (1963):

The doctrine of void-for-vagueness is premised in part on the fiction that all persons in fact know the contents of statutes. But this fiction does not extend to the point of assuming that all persons in fact know the relatively inaccessible legislative history of statutes. Thus it is uniformly held that in applying the doctrine, a federal statute must be judged on its face. (Citations omitted.)

Once it is ascertained that the language of the statute is sufficiently definite to satisfy due process standards, the legislative *30 history may become relevant. But the function of such history is not to provide support for an otherwise deficient law; rather it is to assist the court in best effectuating the legislative intent by possible construction and limitation of the statutory language. Hence, if the challenged class of offenses seems plainly within the terms of the statute, legislative history may be consulted to verify this conclusion. (Citation omitted.)

Fleuti, 302 F.2d at 655 n.5 (citations omitted). See also U.S. v. Maroun, 739 F. Supp. 684, 690 n. 12 (D. Mass. 1990) (citing Fleuti for the proposition that "[e]vidence of legislative intent is inappropriate ... in a vagueness inquiry").

Thus, the government's effort to narrow the term "personnel" on the basis of a legislative report must be rejected. Because AEDPA itself imposes no limitations on the term, and its asserted purpose is flatly inconsistent with such a limitation, its vagaries cannot be cured by resort to legislative history. Persons "of ordinary intelligence" cannot be expected to ferret out a statute's legislative history, much less predict whether such history will result in the narrowing of an otherwise vague term. This tenet applies with all the more force to secondary sources of legislative history, such as the obscure House Report upon which the government relies.

The term "training" is also unconstitutionally vague. The government offers no narrowing construction whatsoever of this term, and does not dispute that all of the training that the HLP and Judge Fertig seek to provide to the PKK would be criminalized, even though it is intended to encourage and enable the PKK to pursue *31 its grievances peacefully, through internationally recognized political and legal channels. In particular, the HLP and Judge Fertig wish to continue training PKK members so that the PKK can seek redress of its political and human rights claims under international law and humanitarian law, and advocate for its objectives at peace conferences and before such bodies as the United Nations Commission on Human Rights and the United States Congress.

These activities clearly constitute core political speech fully protected by the First Amendment. Yet, because the scope of the term "training" is so expansive and far-reaching, these activities would appear to fall within AEDPA's proscription. The verb "to train" is defined as "[t]o coach or accustom to a mode of behavior or performance" and "[t]o make proficient with specialized instruction and practice." [FN11] The American Heritage Dictionary of the American Language 1899 (3d ed. 1996). The government suggests that the term is "best understood to forbid the impartation of skills to a foreign terrorist organization." Gov. Br. at 63. But this formulation does not narrow the term at all.

FN11. "Training" is defined as "[t]he process or routine of one who trains." The American Heritage Dictionary of the American Language 1899 (3d ed. 1996).

Instead, the government argues that all such "training" should be constitutionally forbidden because it may free up other resources that can be put to *32 "nefarious uses." [FN12] Gov. Br. at 63-64. However, the government fails to reconcile this argument with the assurance it offered earlier, based on language contained in a House Judiciary Committee Report, that the term "personnel" must be narrowly construed to exclude the activities of "think[ing], speak[ing], or opin[ing] in concert with, or on behalf of," a designated organization. If all training frees up resources, then so too would all speaking or opining on behalf of an organization. The inconsistent positions taken by the government on the issue of whether AEDPA's proscription against the provision of material support applies to core political speech, depending on whether the support takes the form of "training" or the form of "personnel," only underscores the opacity of the terms.

FN12. Plaintiffs address the government's "freeing up" argument in Point III, supra, and in our opening brief. HLP Br. at 35-37. As applied to training a designated organization to pursue its grievances peacefully through internationally recognized legal and political channels, it makes even less sense. Such training is likely to result in an increase in the use of lawful means of dispute resolution and a concomitant decrease in the use of violence.

In a remarkable understatement, the government argues that "[e]ven if we can hypothesize some examples of training that would raise substantial First Amendment concerns, that is not a ground for invalidating this portion of the statute facially." Gov. Br. at 64. But this is not a case in which there is a "single impermissible application," id.; virtually every example of training one can imagine raises such *33 concerns, apart from those rare trainings specifically intended to further a group's illegal ends. And as the government concedes, AEDPA was enacted precisely to criminalize support that is not specifically intended to further illegal ends. Gov. Br. at 8. The training activities in which plaintiffs seek to engage are core acts of political expression, which "ha[ve] always rested on the highest rung of the hierarchy of First Amendment values." Claiborne Hardware, 458 U.S. at 913. Where, as here, a statute's terms reach a substantial amount of constitutionally protected conduct, it may be invalidated on either vagueness or overbreadth grounds, "even when it could conceivably have had some valid application." Kolender v. Lawson, 461 U.S. at 358 n.8.

The government further argues that AEDPA's scienter requirement mitigates against the vagueness of its terms. Gov. Br. at 60. However, "a scienter requirement cannot eliminate vagueness ... if it is satisfied by an 'intent' to do something that is in itself ambiguous." Nova Records, Inc., v. Sendak, 706 F.2d 782, 789 (7th Cir. 1983). In order for a scienter requirement to mitigate a statute's vagueness,

the "scienter" ... must be some other kind of scienter than that traditionally known to the common law -- the knowing performance of an act with intent to bring about that thing, whatever it is, which the statute proscribes, knowledge of the fact that it is so proscribed being immaterial.... Such scienter would clarify nothing; a clarificatory *34 "scienter" must envisage not only a knowing what is done but a knowing that what is done is unlawful or, at the very least, so "wrong" that it is probably unlawful.

Anthony Amsterdam, The Void for Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 86 n.98 (1960) (citation omitted). See also United States v. Corrow, 119 F.3d 796, 804 n. 11 (10th Cir. 1997) (quoting 1 W. LaFave & A. Scott, Jr., Substantive Criminal Law § 2.3, at 131 (1986) in support of its holding that a scienter requirement alone will not rescue an otherwise vague statute because "'it is possible willfully to bring about certain results and yet be without fair warning that such conduct is proscribed"').

Although 18 U.S.C. § 2339B(a) limits criminal sanctions to the "knowing" provision of material support to a designated organization, this scienter requirement fails to clarify in any way what conduct is proscribed by the terms "training" and "personnel." As the district court aptly observed, while "[i]t is undisputed that the Plaintiffs have and seek to continue to 'knowingly' provide training and personnel," AEDPA "does not ... appear to allow persons of ordinary intelligence to determine what type of training or provision of personnel is prohibited." ER 160; 184.

*35 B. The Terms "Training" and "Personnel" Are Unconstitutionally Overbroad

The district court's preliminary injunction may also be affirmed on the related ground that the prohibitions on "training" and "personnel" are unconstitutionally overbroad. Houston v. Hill, 482 U.S. 451 (1987); Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Broadrick v. Oklahoma, 413 U.S. 601 (1973). As illustrated above, and made concrete by the facts of this case, these terms criminalize a wide range of activity that is indisputably protected by the First Amendment, from training in human rights advocacy to advocacy and distribution of literature. In fact, virtually all the activities proscribed by these terms are protected by the First Amendment, because the only training and personnel that would not be protected would be that which was specifically intended to further the group's illegal activities. Accordingly, these terms are not only unconstitutionally vague, but also substantially overbroad.

*36 CONCLUSION

For the foregoing reasons, the decision of the district court should be reversed in part and affirmed in part, and the case should be remanded with instructions to issue a preliminary injunction barring enforcement of AEDPA against plaintiffs and their members.