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,
v.
Janet
RENO, as Attorney General of the United States, et al.,
Defendants/Appellees/Cross-Appellants.
No.
98-56062.
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
Cases:
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
Constitution:
United
States Constitution, First Amendment ... 2, 5
Statutes:
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
Legislative
Material:
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.
*10
CONCLUSION
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.