1998 WL 34089816 (9th Cir.)
For opinion see 205 F.3d 1130
United States Court of Appeals, Ninth Circuit.
HUMANITARIAN LAW PROJECT, et al., Plaintiffs/Appellants/Cross-Appellees,
Janet RENO, as Attorney General of the United States, et al.,
November 4, 1998.
On Appeal from the United States District Court for the Central District of California
Reply Brief for the Cross-Appellants
Frank W. Hunger, Assistant Attorney General, Nora Manella, United States Attorney, Douglas Letter (202) 514-3602, Yoel Tobin, Attorneys, Department of Justice, Room 9106, 601 D Street, N.W., Washington, D.C. 20530- 0001.
*i TABLE OF CONTENTS
CONCLUSION ... 10
CERTIFICATE OF COMPLIANCE ... 11
CERTIFICATE OF SERVICE ... 12
TABLE OF AUTHORITIES
Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973) ... 2
Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988) ... 6
United States Constitution, First Amendment ... 2, 5
18 U.S.C. ¤ 2339A(b) ... 1, 4
18 U.S.C. ¤ 2339B ... 7, 9
18 U.S.C. ¤ 2339B(a)(1) ... 4
18 U.S.C. ¤ 2239B(g)(4) ... 1
H.R. Rep. No. 104-383, at 44 (1995) ... 4
*1 The issues on the Government's cross-appeal of the district court's preliminary injunction against two aspects of the Antiterrorism Act -- the provisions prohibiting persons within the United States from providing material support to foreign terrorist organizations through "personnel" and "training" (see 18 U.S.C. ¤¤ 2339A(b); 2339B(g)(4)) -- reduce to a basic disagreement in approaches between the Government and plaintiffs. We believe that the statutory terms in question can be given appropriate limiting constructions, and that this Court should exercise here its responsibility to save an Act of Congress wherever possible. Plaintiffs take the *2 opposite approach, and ask the Court to strike down the enacted language even though it covers a great deal of nefarious conduct that can validly be proscribed by Congress (such as a prohibition on providing to members of a foreign terrorist organization training in the use of explosives and weapons).
Given the importance of the public interest at stake here -- preventing foreign terrorist organizations from using the United States as a support base -- we urge the Court to adopt our approach. Moreover, in weighing the validity of the statute, it is important to remember that, as we showed in our opening brief (at 4-9), Congress was well aware of the First Amendment concerns raised by the Antiterrorism Act, and seriously considered them. The Supreme Court has recognized that, when difficult constitutional issues arise, the courts appropriately look to the conclusions drawn by the political branches. Thus, in the First Amendment context, the Court has instructed that "when we face a complex problem with many hard questions and few easy answers we do well to pay careful attention to how the other branches of Government have addressed the same problem." Columbia Broadcasting System, Inc. v. Democratic National Comm., 412 U.S. 94, 103 (1973).
In this reply brief, we address solely points raised in plaintiffs' brief as cross-appellees on the Government's limited cross-appeal.
*3 A. In our opening brief (at 59-61), we made the following points:
¥ (1) criminal statutes must give a person fair warning of what is prohibited;
¥ (2) to meet this standard, the Government need not define an offense with mathematical certainty;
¥ (3) the degree of vagueness constitutionally allowed depends upon the nature of the enactment;
¥ (4) a plaintiff challenging a statute on vagueness grounds must show a substantial amount of constitutionally protected conduct covered by the statute;
¥ (5) the courts have a duty to give a statute a reasonable narrowing construction if the statute can thereby be made sufficiently definite.
We then explained that the terms "personnel" and "training" cover areas that can obviously be restricted by the Government, such as providing terrorists to foreign terrorist organizations, or training these entities in the use of explosives and firearms. Many more examples of valid applications of the statutory terms easily come to mind, such as training foreign terrorists in interrogation, physical surveillance, or anti-wiretapping techniques, or providing personnel to serve as *4 guards, couriers, or drivers.
In addition, we argued that particularly the word "personnel" can be given a limiting construction that fits within the purposes of the statute and the word's dictionary definition. We noted especially that Congress had explained that "[t]here is no proscription on one's right to think, speak, or opine in concert with, or on behalf of, [a foreign terrorist] organization." H.R. Rep. No. 104-383, at 44 (1995).
Despite these points, plaintiffs argue that the terms "personnel" and "training" cannot reasonably be limited, that they cannot properly be narrowly understood, and that they are constitutionally overbroad in any event. Plaintiffs accuse us (Cross-Appellees Br. at 28) of trying to hide from the Court the fact that H.R. Rep. No. 104-383 did not accompany the bill that became the Antiterrorism Act, but a different bill. This accusation is puzzling since at the outset of our opening brief (at 5 n.1), we specifically noted that this report related to a predecessor bill to the Antiterrorism Act.
Plaintiffs also say (Cross-Appellees Br. at 27) we have provided no support for our limiting construction of "personnel." However, the statute prohibits giving "personnel" "to" designated foreign terrorist organizations. See 18 U.S.C. ¤¤ 2339A(b) and 2339B(a)(1) (emphasis added). Common sense shows that this *5 proscription connotes something more than mere independent actions, such as writing letters on one's own in favor of an organization. Rather, it covers situations in which personnel have actually been provided to the terrorist organization at issue to serve its needs and purposes.
Nevertheless, plaintiffs assert (Cross-Appellees Br. at 27) that this limiting construction does not allow the Court to save what Congress has enacted because this interpretation would still cover activity such as "writing, speaking, and distributing literature," which is protected by the First Amendment. But at most, this only proves that Congress' broad ban on the provision of personnel incidentally affects some First Amendment activity. This is not a basis for a wholesale facial invalidation of the prohibition on "personnel," including the provision of mercenaries, terrorists, and many other actors whose activities do not even arguably implicate the First Amendment.
Furthermore, it is indisputable that much writing, speaking, and literature distribution that is under the control or direction of a foreign terrorist organization is not protected by the First Amendment (e.g., writing ransom demands or threatening the lives of civilians). And, finally, it is highly unlikely that the First Amendment protects speech taken under the direction or control of a foreign *6 terrorist entity. See Palestine Information Office v. Shultz, 853 F.2d 932, 939 (D.C. Cir. 1988) (upholding State Department order closing PLO office in Washington, D.C., and preventing a U.S. citizen from representing the PLO). Thus, there is no basis for facial invalidation of the term "personnel" or for an injunction in favor of plaintiffs.
In addition, as we showed in our opening brief (at 4-6), Congress reasonably believed that virtually all material support from persons in the United States provided to foreign terrorist organizations must be stopped because these organizations can use this support either directly for terrorist purposes or because helping them in non-terrorist ways allows them to shift more resources to their terrorist activities. And, foreign terrorist organizations often have their terrorist and other functions so closely intermingled that there will often be no such thing as support only for the latter and not the former.
Just as these points hold true for giving cash to foreign terrorist organizations they also apply to support for these entities through training and provision of personnel. If personnel are provided to a terrorist organization to staff their non-terrorist activities, that organization obviously has more people available to use for terrorism. And, if foreign terrorist organization members are trained in various *7 activities, the skills imparted can often be used directly for terrorism, or they allow those organizations to work more efficiently and are thus able to accomplish more; again, this frees the organization to devote more time, people, and resources to terrorism. Consequently, the Antiterrorism Act is not too vague if it legitimately can restrict the ability of U.S. persons to provide aid to terrorist organizations by teaching skills that either can be used directly in terrorism or simply allow those entities to operate more smoothly, and thus to be more versatile and dangerous.
Plaintiffs counter (Cross-Appellees Br. at 31-32) that they should be able to train foreign terrorist organizations to be able better to represent themselves in the international arena. But, as we have argued in opposition to plaintiffs' appeal, there is no constitutional right to engage in the conduct of providing training to a foreign terrorist organization. Indeed, as we pointed out in our opening brief (at 16-19), State Department counter-terrorism experts have found that foreign terrorist organizations utilize non-terrorist activities to attempt to gain a form of legitimacy, which is then used to garner more support that can be used for terrorism. Furthermore, even if the specific training that plaintiffs wish to provide is constitutionally protected, this is no basis for facially invalidating the term "training" so as to preclude prosecution under 18 U.S.C. ¤ 2339B of any type of training that *8 is provided to a foreign terrorist organization.
At bottom, plaintiffs' argument reduces to the assertion that the prohibitions on "personnel" and "training" are substantially vague because all personnel and training are constitutionally protected unless provided with specific intent to further illegal acts. See Cross-Appellees Br. at 32-33. This premise is plainly mistaken. It would constitutionally protect the provision of weapons training for a foreign terrorist organization as long as the donor believed that it was being given for self-defense purposes.
B. Plaintiffs add a final half-page argument at the end of their brief (Cross-Appellees Br. at 35), contending that, alternatively, the district court's injunction can be upheld because the relevant terms of the Antiterrorism Act are overbroad.
This argument appears to add nothing of substance to plaintiffs' case because it again depends upon plaintiffs' assumption that they are correct on the merits of their First Amendment claims. If they are not, then the Antiterrorism Act can be construed in an appropriate way -- with the limiting construction we have proposed -- and is thus not overbroad.
C. We raised an argument in our opening brief (at 64-65) that the injunction entered by the district court is too far reaching because it appears to bar prosecution *9 under 18 U.S.C. ¤ 2339B even if plaintiffs provided the PKK and Tamil Tigers with suicide bombers or explosives training, specifically intending to further the terrorist activities of these organizations. Plaintiffs have not responded to this point, and we thus assume that they agree that the district court's injunction should at a minimum be limited.
Finally, we note that in contrast to the conclusion in their opening brief, plaintiffs correctly appear to acknowledge (Cross-Appellees Br. at 36) that any injunction in this case must at least be limited to plaintiffs and their members.
For the foregoing reasons and those stated in our opening brief, the district court's preliminary injunction against enforcement of the terms "personnel" and "training" in the Antiterrorism Act should be vacated.