2002 WL 32298361 (9th Cir.)

 

For opinion see 393 F.3d 902, 382 F.3d 1154, 352 F.3d 382

 

United States Court of Appeals, Ninth Circuit.

 

HUMANITARIAN LAW PROJECT, Et Al., Plaintiffs/Appellants/Cross-Appellees,

v.

John ASHCROFT, as Attorney General of the United States, Et Al.,

 

Defendants/Appellees/Cross-Appellants.

 

Nos. 02-55082, 02-55083.

 

August 5, 2002.

 

On Appeal from the United States District Court for the Central District of California

 

Brief for the Appellees/Cross-Appellants

 

Robert D. McCallum, Jr, Assistant Attorney General, Debra W. Yang, United States Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, Douglas Letter, Yoel Tobin, Attorneys, U.S. Department of Justice, Room 9106, 601 D Street, N.W., Washington, D.C. 20530-0001, (202) 514- 3602

 

*i TABLE OF CONTENTS

 

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ... 1

 

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ... 2

 

STATEMENT OF THE CASE ... 2

 

A. Nature Of The Case ... 2

 

B. The Antiterrorism Act ... 5

 

C. Statement Of The Facts ... 9

 

1. The Designations by the Secretary of State under the Antiterrorism Act ... 9

 

2. The Terrorist Activities of the Tamil Tigers ... 10

 

3. The Terrorist Activities of the Kurdistan Workers' Party ... 11

 

4. This Litigation ... 12

 

5. This Court's Prior Decision ... 18

 

6. The District Court's Final Decision ... 21

 

STATUTES INVOLVED ... 23

 

STANDARD OF REVIEW ... 23

 

SUMMARY OF ARGUMENT ... 24

 

*ii ARGUMENT ... 30

 

I. The First Amendment Does Not Prohibit Congress From Barring Contributions Of Money, Weapons, Explosives, And Other Material Support To Entities Designated By The Secretary Of State As Foreign Terrorist Organizations ... 30

 

II. The Prohibitions In The Antiterrorism Act Against Providing "Personnel" And "Training" To Foreign Terrorist Organizations Are Not Unconstitutionally Vague ... 50

 

CONCLUSION ... 61

 

CERTIFICATE OF COMPLIANCE

 

STATEMENT OF RELATED CASES

 

CERTIFICATE OF SERVICE

 

*iii TABLE OF AUTHORITIES

 

Cases:

 

Anaheim v. Duncan, 658 F.2d 1326 (9th Cir. 1981) ... 33

 

Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir. 2002) ... 37- 38, 40, 42, 47

 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ... 60

 

Buckley v. Valeo, 424 U.S. 1 (1976) ... 45

 

Capital Cities/ABC, Inc. v. Brady, 740 F. Supp. 1007 (S.D.N.Y. 1990) ... 44

 

City of Houston v. Hill, 482 U.S. 451 (1987) ... 60

 

Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996) ... 46

 

Dames & Moore v. Regan, 453 U.S. 654 (1981) ... 49

 

DKT Memorial Fund, Ltd. v. Agency for International Development, 887 F.2d 275 (D.C. Cir. 1989) ... 50

 

District No. 1, Pacific Coast District Marine Engineer's Beneficial Association v. Maritime Administration, 215 F.3d 37 (D.C. Cir. 2000) ... 50

 

Elfbrandt v. Russell, 384 U.S. 11 (1966) ... 40

 

Farrakan v. Reagan, 669 F. Supp. 506 (D.D.C. 1987), aff'd without opin., 851 F.2d 1500 (D.C. Cir. 1988) ... 37, 42, 46

 

Freedom To Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) ... 36, 49, 50

 

*iv Golden State Transit Corp v. Los Angeles, 754 F.2d 830 (9th Cir. 1985), reversed on other grounds, 475 U.S. 608 (1986) ... 33

 

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 51, 52

 

Hilao v Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ... 32

 

Hill v. Colorado, 530 U.S. 703 (2000) ... 57, 59

 

Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert denied, 532 U.S. 904 (2001) ... passim

 

Kleindienst v. Mandel, 408 U.S. 753 (1972) ... 37

 

Kolender v. Lawson, 461 U.S. 352 (1983) ... 52

 

Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir. 1995) ... 32

 

McCoy v Stewart, 282 F.3d 626 (9th Cir. 2002) ... 34

 

NAACP v Claiborne Hardware Co., 458 U.S. 886 (1982) ... 39-40

 

NEA v. Finley, 524 U.S. 569 (1998) ... 60

 

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) ... 45

 

Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988) ... 43, 49, 56

 

People's Mojahedin Organization of Iran v. Secretary of State, 182 F.3d 17 (D.C. Cir. 1999), cert. denied, 529 U.S. 1104 (2000) ... 9

 

Pit River Home and Agricultural Co-op Association v. United States, 30 F.3d 1088 (9th Cir. 1994) ... 33

 

*v Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) ... 33-34

 

Posters N' Things, Ltd. v. United States, 511 U.S. 513 (1994) ... 51, 52

 

Regan v. Wald, 468 U.S. 222 (1984) ... 35-36, 41

 

Scales v. United States, 367 U.S. 203 (1961) ... 40

 

Schwartzmiller v. Gardner, 752 F.2d 1341 (9th Cir. 1984) ... 52

 

Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977 (1969) ... 44

 

Turner Broadcasting System Inc. v. FCC, 521 U.S. 622 (1994) ... 41, 47

 

United States v. Arch Trading Co., 987 F.2d 1087 (4th Cir. 1993) ... 48

 

United States v. Gray, 967 F.2d 9322 (9th Cir. 1992) ... 32

 

United States v. Harriss, 347 U.S. 612 (1954) ... 52, 57, 59

 

United States v. Lindh, ... F. Supp. 2d ..., 2002 WL 1489373 (E.D.Va. 2002) ... 38, 54, 56

 

United States v. O'Brien, 391 U.S. 367 (1968) ... 19, 41

 

United States v Rahmant, ... F. Supp. 2d ..., 2002 WL 1393611 (C.D. Cal. 2002) ... 35

 

United States v. Robel, 389 U.S. 258 (1967) ... 40

 

United States v. Santa Maria, 15 F.3d 879 (9th Cir. 1994) ... 55

 

United States v. Santos-Pinon, 146 F.3d 734 (9th Cir. 1998) ... 55

 

*vi Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3d Cir.), cert. denied, 409 U.S. 933 (1972) ... 37

 

Walsh v Brady, 927 F.2d 1229 (D.C. Cir. 1991) ... 37, 43, 46

 

Ward v. Rock Against Racism, 491 U.S. 781 (1989) ... 47

 

Zemel v. Rusk, 381 U.S. 1 (1965) ... 36, 49

 

Constitution:

 

United States Constitution:

 

First Amendment ... passim

 

Fifth Amendment ... 1, 3, 27, 36

 

Statutes:

 

8 U.S.C. § 1182 ... 7

 

8 U.S.C. § 1182(a)(3)(B) ... 6

 

8 U.S.C. § 1182(a)(3)(B)(ii) ... 48

 

8 U.S.C. § 1182(a)(3)(B)(iii) ... 48

 

8 U.S.C. § 1189(a)(1) ... 6, 48

 

8 U.S.C. § 1189(a)(1)(C) ... 46

 

8 U.S.C. § 1189(a)(4) ... 6

 

8 U.S.C. § 1189(b) ... 6-7, 48

 

8 U.S.C. § 1189(c)(2) ... 48

 

18 U.S.C. § 2333 ... 37

 

18 U.S.C. § 2339A(b) ... 7, 43, 53

 

*vii 18 U.S.C. § 2339B ... 38, 59

 

18 U.S.C. § 2339B(a)(1) ... 7, 52, 53

 

18 U.S.C. § 2339B(a)(2) ... 7

 

18 U.S.C. § 2339B(g)(4) ... 7

 

22 U.S.C. § 2656f(d)(2) ... 48

 

28 U.S.C. § 1291 ... 2

 

International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq) ... 39, 48

 

Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No. 104- 132, 110 Stat. 1214-1319) ... 2

 

Section 301(a)(1), 110 Stat. 1247 ... 6

 

Section 301(a)(7), 110 Stat. 1247 ... 5, 14

 

Section 302 ... 6

 

USA PATRIOT Act of 2001 (Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001) ... 6, 7, 48

 

Regulations:

 

62 Fed. Reg. 52,650-51 (Oct. 8, 1997) ... 9

 

64 Fed. Reg. 55112 (1999) ... 10

 

66 Fed. Reg. 51089 (2001) ... 10

 

Executive Orders:

 

Executive Order No. 12947 (60 Fed. Reg. 5079 (1995)) ... 39

 

Executive Order No. 13224 (66 Fed. Reg. 49079 (2001)) ... 39

 

*viii Legislative Materials:

 

141 Cong. Rec. S7661 (daily ed. June 5, 1995) ... 14

 

142 Cong. Rec. S3380 (daily ed. April 16, 1996) ... 14

 

H.R. Rep. No. 104-383 (1995) ... 5, 6, 8, 14, 55

 

Miscellaneous:

 

Webster's Ninth New Collegiate Dictionary (1989) ... 53, 57

 

United States Attorneys' Manual, §9-91.100 (2001) ... 22, 54, 57

 

*1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

 

The issue posed by the appeal of the plaintiffs/appellants is:

 

Whether Congress may, consistently with the First and Fifth Amendments, prohibit persons from providing money, weapons, explosives, or other material support to foreign organizations determined by the Secretary of State to be engaged in terrorist activity.

 

*2 The issue posed by the Government's cross-appeal is:

 

Whether the district court correctly struck down on its face, as unconstitutionally vague, a federal statute banning the knowing provision of, among other things, "personnel" or "training" to foreign organizations determined by the Secretary of State to be engaged in terrorist activities.

 

STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION

 

The Government agrees with the statement regarding jurisdiction in the appellants' opening brief. This Court has jurisdiction over the Government's cross appeal pursuant to 28 U.S.C. § 1291. The district court entered the order under appeal on October 4, 2001, and amended its judgment on November 7, 2001 The Government filed a timely notice of appeal on December 28, 2001.

 

STATEMENT OF THE CASE

 

A. Nature Of The Case

 

This is an action brought in the United States District Court for the Central District of California by various individuals and organizations challenging the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 (Public Law No. 104-132, 110 Stat. 1214-1319) ("the Antiterrorism Act").

 

*3 Plaintiffs are two United States citizens and six organizations. One citizen (Nagalingam Jeyalingam) and five of the organizations wish to provide cash and various other types of support to the Liberation Tigers of Tamil Eelam ("LTTE" or "Tamil Tigers"), which, as described below, is a foreign entity that commits numerous terrorist acts in Sri Lanka, with resulting immense loss of civilian life. The other citizen plaintiff (Ralph Fertig) and the remaining plaintiff organization (the Humanitarian Law Project) wish to provide cash and other support to the Kurdistan Workers' Party ("PKK"), a foreign entity that carries out deadly terrorist acts in Turkey and elsewhere.

 

These plaintiffs sued the Secretary of State and the United States Department of State, as well as the Attorney General and the United States Department of Justice, claiming that the Antiterrorism Act violates the First and Fifth Amendments.

 

The relevant provisions of the Antiterrorism Act authorize the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, to designate foreign terrorist organizations that threaten U.S. nationals or the national security of the United States. The Antiterrorism Act makes it a criminal offense to provide material support to such terrorist organizations knowingly. Plaintiffs assert that these provisions are invalid because the Constitution gives them a right to knowingly provide funds and other material support to foreign terrorist organizations unless the Government can prove that they are providing this aid with a specific intent *4 to further the illegal aims of the terrorist organizations. Plaintiffs sought a nationwide injunction against the statute, and a preliminary injunction.

 

The district court generally denied a preliminary injunction (see 9 F. Supp.2d 1176, 1205 (C.D. Ca. 1998)), and plaintiffs appealed that denial to this Court. However, the court did preliminarily enjoin two provisions of the statute as unconstitutionally vague - those concerning provision of "training" and "personnel"' to foreign terrorist groups. The Government cross-appealed from that limited injunction.

 

On appeal, this Court affirmed the district court's decision. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001). In particular, this Court held that the Antiterrorism Act is constitutional, with the possible exception of the terms "personnel" and "training." With respect to these terms, the Court determined that the district court had not abused its discretion in issuing a limited preliminary injunction against enforcement. See id at 1138.

 

This case then resumed in the district court. That court again largely denied plaintiffs' constitutional claims. However, the district court issued a limited final injunction against the "personnel" and "training" provisions of the Antiterrorism Act as to the plaintiffs and the two terrorist organizations involved.

 

Plaintiffs have now appealed again, as has the Government.

 

*5 B. The Antiterrorism Act

 

In 1996, following continued terrorist actions throughout the world, including many directed at United States interests, Congress and the President acted to "strictly prohibit terrorist fundraising in the United States," and to make clear that this country is not to "be used as a staging ground for those who seek to commit acts of terrorism against persons in other countries." H.R. Rep. No. 104-383, at 43 (1995). [FN1]

 

    FN1. This report pertained to a bill that was a predecessor of the Antiterrorism Act.

 

The Antiterrorism Act was enacted out of concern that "[s]everal terrorist groups have established footholds within ethnic or resident alien communities in the United States," and "[m]any of these organizations operate under the cloak of a humanitarian or charitable exercise * * * and thus operate largely without fear of recrimination." Ibid After extensive hearings, Congress determined that "[t]here is no other mechanism, other than an outright prohibition on contributions, to effectively prevent such organizations from using funds raised in the United States to further their terrorist activities abroad." Id.

 

Significantly for this case, Congress found that "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Section 301(a)(7), 110 Stat. 1247. *6 Congress saw a prohibition on material support for terrorist organizations as "absolutely necessary to achieve the government's compelling interest in protecting the nation's safety from the very real and growing terrorist threat." H. R. Rep. No. 104-383, at 45. See also § 301(a)(1), 110 Stat. 1247.

 

Accordingly, Section 302 of the Antiterrorism Act authorized the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate an organization as a "foreign terrorist organization" if the Secretary finds that: "(A) the organization is a foreign organization; (B) the organization engages in terrorist activity (as defined in section 1182(a)(3)(B) of this title); and (C) the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1). [FN2] Designations under the Antiterrorism Act last for two years, and they may then be renewed. 8 U.S.C. § 1189(a)(4).

 

    FN2. The criteria for designation were amended by the USA Patriot Act of 2001 (Pub. Law No. 107-56, 115 Stat. 272 (2001)), but not in ways that have an impact on this case.

 

Organizations designated by the Secretary of State may seek judicial review under the Antiterrorism Act, but such review must be filed in the District of Columbia Circuit within 30 days after publication of the designation in the Federal Register. *78 U.S.C. § 1189(b). On judicial review, a designation will be set aside if it is arbitrary or capricious, or otherwise contrary to law. Ibid

 

Designation of a group as a "foreign terrorist organization" has three legal consequences. First, U.S. financial institutions possessing or controlling any funds in which a designated foreign terrorist organization or its agent has an interest are required to block all financial transactions involving those funds. 18 U.S.C § 2339B(a)(2). Second, representatives and members of designated organizations are inadmissible to this country under the Immigration and Nationality Act. and are ineligible for visas. 8 U.S.C. § 1182. Third, it is illegal for persons within the United States or subject to its jurisdiction to "knowingly" provide "material support or resources" to any designated foreign terrorist organization. 18 U.S.C. § 2339B(a)(1).

 

The statute currently defines "material support or resources" as "currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials." 18 U.S.C. §§ 2339A(b); 2339B(g)(4). [FN3]

 

    FN3. The text reflects the definition as amended by the USA PATRIOT Act of 2001 (Pub. L. No. 107-56, 115 Stat. 272, 377 (Oct. 26, 2001)). The amendment added "expert advice or assistance," and substituted "monetary instruments or financial securities" for "other financial securities."

 

*8 Before passing the Antiterrorism Act, Congress examined the very First Amendment issues raised by the plaintiffs here concerning a ban on material support, noting that many terrorist organizations "operate under the cloak of a humanitarian or charitable exercise * * *." H.R. Rep. No. 104-383, at 43. The House of Representatives report explained that "[t]he First Amendment protects one's right to associate with groups that are involved in both legal and illegal activities." Ibid. However, that report emphasized that the contemplated ban on material support "does not attempt to restrict a person's right to join an organization. Rather, the restriction only affects one's contribution of financial or material resources to a foreign organization that has been designated as a threat to the national security of the United States." Id. at 44.

 

This legislative report concluded:

 

The prohibition is on the act of donation. There is no proscription on one's right to think, speak, or opine in concert with, or on behalf of, such an organization. The basic protection of free association afforded individuals under the First Amendment remains in place. The First Amendment's protection of the right of association does not carry with it the 'right' to finance terrorist, criminal activities.

 

Ibid.

 

*9 The House report reiterated this point after discussing applicable Supreme Court case law:

 

The ban does not restrict an organization's or an individual's ability to freely express a particular ideology or political philosophy. Those inside the United States will continue to be free to advocate, think, and profess the attitudes and philosophies of the foreign organizations. They are simply not allowed to send material support or resources to those groups, or their subsidiary groups, overseas.

 

Id. at 45.

 

C. Statement Of The Facts

 

1. The Designations by the Secretary of State under the Antiterrorism Act

 

In October 1997, pursuant to the Antiterrorism Act, the Secretary of State designated 30 organizations as "foreign terrorist organizations." Among these entities were the Kurdistan Workers' Party (also known as the Partiya Karkeran Kurdistan, or PKK), and the Liberation Tigers of Tamil Eelam (also known as the LTTE or Tamil Tigers). 62 Fed. Reg. 52,650-51 (Oct. 8, 1997). The Tamil Tigers then sought review of this designation through an action in the D.C. Circuit, as provided for in the Antiterrorism Act; the PKK did not seek judicial review of the designation. The designations of the Tamil Tigers and another organization that had sought review were then upheld by the D.C. Circuit. People's Mojahedin Organization of Iran v. Secretary of State, 182 F.3d 17 (D.C. Cir. 1999), cert denied, 529 U.S. 1104 (2000)

 

*10 The Secretary of State renewed the designations of the Tamil Tigers and the PKK in both 1999 and 2001. See 64 Fed. Reg. 55112 (1999); 66 Fed. Reg 51089 (2001).

 

2. The Terrorist Activities of the Tamil Tigers

 

The record here contains the Declaration of Kenneth R. McKune, who was at the time the Associate Director of the State Department Counter Terrorism Office, serving as the principal advisor to the Secretary of State on substantive matters relating to the assessment of foreign terrorist threats and developments worldwide. SER 4. [FN4] In that role, McKune received reports and analysis from U.S. intelligence and law enforcement agencies, and various foreign sources and embassies. SER 5. Based upon the information available to him, Associate Director McKune described for the district court the nature of the Tamil Tigers and the PKK, and their operations in general. SER 5.

 

    FN4. Citations to "SER ___" refer to pages in the Supplemental Excerpts of Record filed by the Government with this brief.

 

The Tamil Tigers were founded in 1976, for the purpose of creating an independent Tamil state in Sri Lanka. SER 7. The organization has used suicide bombings and political assassinations to prosecute its campaign for independence, and *11 in the process killed hundreds of civilians in the 1990s. SER 7-10 (summarizing a portion of the terrorist attacks committed by the Tamil Tigers).

 

For example, in January 1996, the Tamil Tigers carried out the most deadly terrorist incident in the world for that year, exploding a truck bomb at the Central Bank in the capital of Sri Lanka, killing 100 people and injuring more than 1,400. SER 8 Then, in October 1997, one hundred people, including seven U.S. citizens, were injured when the Tamil Tigers detonated another truck bomb near the World Trade Center in central Colombo. SER 8. In March 1998, a Tamil Tiger suicide bomber exploded a car bomb in Maradana, Sri Lanka, killing 37 people. SER 7.

 

Throughout the 1990s, the Tamil Tigers attacked Sri Lankan government officials, killing in various incidents the President of Sri Lanka, the Security Minister and the Deputy Defense Minister. SER 8-9. And, in June 1995. the organization exploded a bomb on a ship chartered by the International Committee of the Red Cross. SER 8.

 

3. The Terrorist Activities of the Kurdistan Workers' Party

 

The PKK was founded in 1974, for the purpose of establishing an independent Kurdish state in southeastern Turkey. SER 5. Since its inception, the organization has waged a violent terrorist insurgency in Turkey, claiming over 22,000 lives since 1984 SER 5.

 

*12 In the 1990s, the PKK moved beyond rural-based insurgent activities and embraced urban terrorism; it thus conducted terrorist attacks on Turkish diplomatic and commercial facilities in West European cities, and, in an announced attempt to damage Turkey's tourist industry, bombed tourist sites and hotels, and kidnaped foreign tourists. SER 5-7 (summarizing a portion of the terrorist attacks committed by the PKK).

 

For instance, in September 1996, PKK members hijacked a local bus in Turkey and kidnaped two passengers, one of whom was a U.S. citizen. SER 6. Earlier, the PKK claimed responsibility for a series of bombings in downtown Istanbul, killing two people and wounding at least ten others, including a U.S citizen. SER 6. In November 1993, the PKK firebombed five sites in London, England. SER 7. And, in October 1993, this organization kidnaped tourists from the United States and New Zealand, and held them hostage. SER 6-7. These activities are in addition to a series of bombings in Turkey that killed or injured many Turkish police officers and civilians. SER 6.

 

4. This Litigation

 

Plaintiffs filed this suit in March 1998, and sought a nationwide injunction against enforcement of the relevant portions of the Antiterrorism Act. They allege that they wish to provide money and other types of material support to both the Tamil *13 Tigers and the PKK for humanitarian and political activities. ER 9-14. [FN5] Plaintiffs assert that, since the Secretary of State designated these organizations under the statute in October 1997, they have been chilled from providing such support for fear of criminal investigation, prosecution, and conviction. Plaintiffs also described how they have been involved previously in supporting the non-violent activities of the Tamil Tigers and the PKK, such as their political work, and wish to continue doing so. ER 9-14.

 

    FN5. "ER _____" citations refer to the Excerpts of Record filed with appellants' opening brief

 

Plaintiffs sought a sweeping injunction to preclude enforcement of the statute against providers of material support to any designated foreign terrorist organizations (which would include, for example, al Qaeda or Hamas), unless the Government can prove that the provider of such support specifically intended to further unlawful terrorist activities.

 

In response on behalf of the Government, we cited to the Congressional statutory findings, legislative debates, and the expert opinion of Associate Coordinator McKune concerning the nature of foreign terrorist organizations and the use to which they put money and other material support.

 

*14 As noted earlier, in the Antiterrorism Act itself, Congress found that "foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Section 301(a)(7). We also pointed out to the district court that Congress "recognize[d] the fungibility of financial resources and other types of material support." H.R. Rep. 104-383, at 81. "Allowing an individual to supply funds, goods, or services to an organization * * * helps defray the cost to the terrorist organization of running the ostensibly legitimate activities. This in turn frees an equal sum that can then be spent on terrorist activities." Ibid.

 

In the debate on the Antiterrorism Act, Members of Congress explained these conclusions: "Most important is the provision in this bill that will cut off the ability of terrorist groups such as Hamas to raise huge sums in the United States for supposedly 'humanitarian' purposes, where in reality a large part of those funds go toward conducting terrorist activities." 142 Cong. Rec. S3380 (daily ed. April 16, 1996) (Sen. Snowe). Accord 141 Cong. Rec. S7661 (daily ed. June 5, 1995) (Sen. Feinstein) ("I simply do not accept that so-called humanitarian works by terrorist groups can be kept separate from their other operations. I think the money will ultimately go to bombs and bullets, rather than babies, or, because money is fungible. free up other funds to be used on terrorist activities").

 

*15 The record here reveals that the experience and analysis of United States agencies charged with combating terrorism support these congressional conclusions. Acting Director McKune explained: "Given the purposes, organizational structure, and clandestine nature of foreign terrorist organizations, it is highly likely that any material support to these organizations will ultimately inure to the benefit of their criminal, terrorist functions - regardless of whether such support was ostensibly intended to support non-violent, non-terrorist activities." SER 7.

 

Funds raised for charitable purposes have in the past been redirected by terrorist groups to purchase arms and explosives. SER 8. For example, the Tamil Tigers have used funds collected in London to acquire weapons and explosives. SER 11. Indeed, leaders of Tamil Tiger fundraising efforts have themselves publicly admitted that they are not so "naive" as to assume that the funds they gather will be used only for the "humanitarian" purposes advertised by the organization. SER 8. Simply put, terrorist organizations do not maintain organizational structures or "firewalls" to prevent resources donated for humanitarian purposes from being used to commit or support terrorist acts. SER 9.

 

The evidence shows also that terrorist organizations can utilize "charitable" 01 "political" activities as a cover, and thereby undermine the investigatory efforts of law enforcement personnel in the United States and abroad. SER 10- 13. Charitable or *16 political activities located within the organizational structure of a foreign terrorist group provide effective concealment for the movement and preparations of terrorists, and assist in laundering funds for terrorist activity. Because money is fungible and terrorist groups do not maintain open books, it is exceedingly difficult for law enforcement agencies to distinguish between funds used to support exclusively non-violent humanitarian activities and those utilized for terrorist activities. SER 8-11. Foreign terrorist organizations can and do employ myriad ways to disguise the origin and transfer of money. SER 9.

 

Furthermore, some foreign terrorist organizations use social and political components to recruit personnel to carry out terrorist operations, and to provide support to terrorists and their families in aid of such operations. SER 9.

 

The record here shows that the PKK itself has not respected the line between humanitarian and violent activities. In January 1997, the United Nations High Commissioner for Refugees was forced to close a Kurdish refugee camp in northern Iraq because the camp had fallen under the control of the PKK, which failed to respect its neutral and humanitarian nature. SER 9-12.

 

Moreover, even if funds or goods raised for charitable purposes are in fact so used, the addition of such items to the coffers of terrorist groups frees funds raised from other sources for use in facilitating terrorist acts. Thus, humanitarian support, *17 however well-intentioned, increases the resources that a terrorist organization can devote to terrorist ends. SER 10.

 

Finally, Associate Director McKune explained that the United States has an interest in defeating terrorism, going beyond straight national security and law enforcement interests; "foreign policy imperatives also strongly support the prohibition on material support to designated terrorist organizations. A number of designated terrorist organizations have attacked moderate governments with which the United States has vigorously endeavored to maintain close and friendly relations. Terrorist attacks on such governments threaten their social, economic and political stability, cause enormous human suffering, and endanger Americans visiting or residing overseas." SER 11. Additionally, foreign terrorist organizations such as the PKK attack our NATO allies, thereby implicating important and sensitive multilateral security arrangements. SER 11.

 

*18 5. This Court's Prior Decision

 

In June 1998, the district court primarily denied the preliminary injunction sought by the plaintiffs, but granted it in part as to two aspects of the Antiterrorism Act. 9 F Supp.2d 1176, 1205.

 

Both sides appealed to this Court, which affirmed the district court's order. In its ruling, this Court rejected the constitutional arguments now being made again by the plaintiffs. The Court recognized that, although there is a constitutionally protected right of association, the Antiterrorism Act "does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. * * * What [the statute] prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions. Nor, of course, is there a right to provide resources with which terrorists can buy weapons and explosives." 205 F.3d at 1133. (This Court's opinion is also reprinted in the Excerpts of Record (at 32-49)).

 

This Court went on to reject plaintiffs' argument that the Antiterrorism Act is unconstitutional insofar as it proscribes the giving of material support even if the donor does not have the specific intent to aid in the organization's unlawful purposes. The Court explained that plaintiffs are left free to advocate the goals of the Tamil Tigers *19 and the PKK, but that such activity is quite distinct from making donations of material support, which is protected only in certain contexts. Id at 1134.

 

The Court explained that, although "the First Amendment protects the expressive component of seeking and donating funds, expressive conduct receives significantly less protection than pure speech." Id. at 1134-35. "Contrary to plaintiffs' argument, the material support restriction here does not warrant strict scrutiny because it is not aimed at interfering with the expressive component of their conduct but at stopping aid to terrorist groups." Id. at 1135.

 

Accordingly, this Court found that an intermediate level of First Amendment scrutiny applies to this case, and that the Antiterrorism Act meets the four criteria employed in that doctrine (see United States v. O'Brien, 391 U.S. 367 (1968)). The Court found first that the Federal Government "clearly has the power to enact laws restricting the dealings of United States citizens with foreign entities. * * * Second, the government has a legitimate interest in preventing the spread of international terrorism, and there is no doubt that that interest is substantial." Id. at 1135.

 

Next, this Court found that the Government's interest here is "unrelated to suppressing free expression because it restricts the actions of those who wish to give material support to the groups, not the expression of those who advocate or believe the ideas that the groups support." Ibid.

 

*20 Finally, this Court looked to the issue of whether the Antiterrorism Act is sufficiently tailored to its purpose of preventing the United States from being used as a base for terrorist fundraising. The Court explained that "[b]ecause the judgment of how best to achieve that end is strongly bound up with foreign policy considerations, we must allow the political branches wide latitude in selecting the means to bring about the desired goal." Id at 1136. The Court noted Congress' statutory finding that any contribution to a foreign terrorist organization facilitates its criminal conduct, and that contributions to such entities, even if intended for peaceful purposes can aid terrorism in various ways. The Court therefore determined that the statute is properly tailored. Ibid.

 

The Court next rejected plaintiffs' argument that the Antiterrorism Act is invalid because the Secretary of State exercises discretion in designating foreign terrorist organizations under the statutory scheme. The Court found this argument misconceived because the statute does not regulate speech, it contains sufficient intelligible guiding principles for the Secretary to follow, and designated groups may seek judicial review. Id. at 1136-37.

 

However, this Court affirmed the district court's grant of a limited preliminary injunction against the Antiterrorism Act in two respects. The Court ruled that the trial court's decision on this issue must be viewed under a "deferential standard of review" *21 applicable in an interlocutory appeal of a preliminary injunction, and that the district court "did not abuse its discretion in issuing its limited preliminary injunction." Id at 1138.

 

The district court had decided that the terms "personnel" and "training," which are part of the definition of "material support," are unconstitutionally vague. That court thought that a broad reading of these terms could include some of the types of activities in which plaintiffs had previously engaged, which are protected by the First Amendment, such as writing and distributing publications supportive of these organizations and working with group members at peace conferences. 9 F. Supp.2d at 1203-04, 1214.

 

6. The District Court's Final Decision

 

After this Court ruled on the preliminary injunction issues, the case reactivated in district court. In October 2001, that court issued its final decision, largely denying, but partially granting, a permanent injunction. This is the ruling now on appeal (although, at the request of the Government, the district court narrowed the scope of its injunction in November 2001 (ER 4-5)).

 

The trial court first addressed the fact that the Government had, in June 2001. amended the United States Attorneys' Manual ("USAM" or "Manual") in order to *22 state more formally the Government's position regarding the scope of the terms "personnel" and "training" in the Antiterrorism Act, (See USAM, § 9- 91.100 (2001).)

 

The court noted (ER 11) that the Manual defines "personnel" as individuals who "work under the foreign entity's direction or control," such as "those acting as full-time or part-time employees or otherwise takings orders from the entity * * *." The Manual explains that "[i]ndividuals who act independently of the designated foreign terrorist organization to advance its goals and objectives are not working under its direction or control * * *." ER 11.

 

In addition, the district court quoted the Manual as providing that "training" is defined to cover "knowingly provid[ing] instruction to the organization designed to impart one or more specific skills," rather than "general knowledge (e g., one can receive training in how to drive a car, but a lecture on the history of the automobile would not normally be thought of as 'training')." ER 11-12.

 

The district court ruled that this change in the U.S. Attorneys' Manual did not moot this case because that document is non-binding and unenforceable, and can be amended. ER 27. Thus, the district court reached the merits on this issue. It found that, since the Manual definitions are not binding on U.S. Attorneys, "the statutory language remains impermissibly vague" for the reasons given in the court's prior order on the preliminary injunction. ER 30.

 

*23 The district court then rejected plaintiffs' other, broader constitutional claims based on the reasoning in its prior opinion. ER 30.

 

Thus, the district court entered a final judgment in favor of the Government, except for a permanent injunction enjoining prosecution of the plaintiffs and their members for violating the prohibition on supplying "personnel" and "training" to the Tamil Tigers or the PKK. ER 5-7.

 

STATUTES INVOLVED

 

The pertinent provisions of the Antiterrorism Act are reprinted in an addendum to plaintiffs' opening appellate brief.

 

STANDARD OF REVIEW

 

As discussed below, we believe that this Court's prior published decision on the legal issues raised by plaintiffs' appeal constitutes law of the case, and is binding law of this Circuit. Thus, while these purely legal, constitutional issues would normally be decided by this Court de novo, they have already been definitively ruled on by this Court in a way that binds this panel.

 

By contrast, this Court's prior opinion addressing the legal issues raised in our cross-appeal makes clear that the Court was not issuing a final determination on those issues, but was merely examining them in the context of deciding if the district court *24 had abused its discretion in granting a partial preliminary injunction. Thus, these legal, constitutional issues are before this Court for de novo consideration.

 

SUMMARY OF ARGUMENT

 

I. The plaintiffs here contend that they have a constitutionally protected First Amendment right to associate with foreign organizations that carry out deadly terrorist attacks, by donating to such organizations cash and other forms of material support. Plaintiffs assert that this right exists unless the Government can prove that they have a specific bad intent, i.e that they have the specific intent to further the illicit aims of the foreign terrorist organizations. In our argument below, we show that the district court correctly rejected this contention, and indeed that this Court has already ruled definitively on this claim and found it wanting.

 

Plaintiffs' argument cannot be squared with precedent from the Supreme Court and this Court, as well as several other Circuits, denying constitutional claims in highly analogous circumstances. This precedent rejects constitutional attacks against restrictions that the Executive has imposed on various occasions against dealings with specified overseas entities for foreign policy and national security reasons. This Court and others have upheld numerous such orders, despite claims that they violate First and Fifth Amendment rights of U.S. citizens to engage in dealings with foreign entities, and none of these instances has required any examination of the intent of the individual *25 or group involved; the dealings were barred without any regard for the motive of the U.S. persons at issue.

 

If the Executive can constitutionally bar any dealings with specified foreign entities, then Congress and the President surely can validly through the Antiterrorism Act prohibit U.S. persons from providing money and other material support to foreign terrorist organizations, regardless of the intent of the donor.

 

Plaintiffs have tried to sidestep this problem with their argument by claiming that the Antiterrorism Act is a direct restriction on their protected First Amendment rights But this argument is wrong, as this Court has already determined. Through this statute, Congress has prohibited the act of providing material support to a terrorist organization. Contrary to plaintiffs' argument, the statute focuses on conduct, not mere speech or association.

 

As the district court and this Court have recognized, plaintiffs remain free to espouse whatever views they wish about the Tamil Tigers and the PKK, and issues involving these organizations. And, they remain free to associate with these organizations - they can meet with their members and advocate their causes. What plaintiffs cannot do is provide material support to the organizations.

 

As described above, the reasons for this restriction are obvious. Money is fungible and can be used easily by terrorist organizations for many purposes, both *26 legitimate and nefarious. Terrorist organizations do not keep neat books with separate accounts for humanitarian and terrorist activities, and they certainly do not open those books for inspection. Therefore, even if the Tamil Tigers and the PKK assure plaintiffs that they will use particular funds only for humanitarian purposes, it is difficult or impossible to verify that such promises have been kept, or to enforce them.

 

Moreover, even if there were a way to assure that funds or other material support would be used by terrorist groups only for humanitarian purposes, such support still aids these groups in carrying out their terrorist activities. This material support means that these groups have more funds or resources to use on terrorism because the support donated by plaintiffs frees those funds or resources. In addition, support even for humanitarian activities aids terrorist groups because it gives them an air of legitimacy and assists in their ability to raise more funds.

 

Consequently, under the applicable analysis here, the Antiterrorism Act is valid. In substantial part (concerning donating items such as weapons and explosives), the statute does not involve First Amendment issues at all. For the remainder, the statute is an incidental restriction on First Amendment rights that accomplishes an important and legitimate governmental interest (denying foreign terrorist organizations the material support they need to conduct terrorist activity), in a manner unrelated to the *27 suppression of free expression, and does so in a way appropriately tailored to further its purpose.

 

Plaintiffs also argue that the Antiterrorism Act is invalid under the First and Fifth Amendments because it gives too much discretion to the Secretary of State in designating foreign terrorist organizations. As the district court and this Court have held, this argument is misconceived.

 

The statute limits the Secretary's authority because he can designate organizations only if they are foreign and carry out terrorist acts that threaten the security of U.S. nationals or the national security of the United States. In the realm of the foreign relations of the United States, such a delegation is plainly valid. In addition, plaintiffs' argument on this point is based too on the mistaken claim that the Antiterrorism Act directly regulates First Amendment rights. As explained earlier, the statute prohibits harmful conduct - the act of providing material support to foreign terrorist organizations.

 

II. In the second part of our argument, we address our own cross-appeal of the district court's injunction against two aspects of the Antiterrorism Act that proscribe the provision of "personnel" and "training" to designated foreign terrorist organizations. The district court found these two provisions too vague to survive First Amendment inquiry.

 

*28 Initially, we note that the language in this Court's prior opinion on these issues was clearly not meant to constitute law of the case - the Court made clear that its affirmance was based on the deferential standard of review applicable to interlocutory appeals of preliminary injunctions.

 

We are appealing the district court's final ruling because there is considerable activity validly restricted by the terms "personnel" and "training." For example, there can be no reasonable argument that the First Amendment protects providing training for terrorists in how to use weapons or explosives, or providing personnel to guard them. Moreover, the tragic events that occurred after this Court's prior opinion make clear that training that can seem perfectly innocent - such as training for flying aircraft - might be a critical part of a horrible terrorist act.

 

The injunction against the prohibition on "personnel" for terrorist organizations is mistaken because the common usage of that term and the legislative intent of Congress make clear that it applies to employees or others working under the direction or control of a specific entity. As noted, the Government has formally adopted that definition in the U.S. Attorney's Manual.

 

As so construed, there can be no reasonable doubt about the validity of the ban on "personnel," or concerns about its vagueness. The First Amendment provides little or no protection to an individual who knowingly places himself or others under the *29 direction or control of a foreign entity that carries out deadly terrorist acts. The Antiterrorism Act thus provides sufficiently clear guidelines as to the prohibited conduct, and the plaintiffs cannot demonstrate coverage of a substantial amount of constitutionally protected conduct. In such circumstances, the ban on providing "personnel" is not unconstitutionally vague.

 

Similarly, the statutory use of the term "training" survives constitutional scrutiny. That term is readily intelligible, and is commonly understood to cover imparting a skill, rather than just general knowledge. Assisting foreign terrorists in obtaining proficiency is not First Amendment protected activity since it helps terrorist organizations to carry out their goals, which include terrorism.

 

Simply because plaintiffs or the district court can propose a few odd types of training for foreign terrorist entities - such as helping them make better presentations to international bodies - does not make the "training" prohibition constitutionally vulnerable. The general class of offenses to which the statute is directed is plainly within its terms, and the "training" ban should not be struck down as vague simply because marginal cases can be imagined.

 

*30 ARGUMENT

 

I. The First Amendment Does Not Prohibit Congress From Barring Contributions Of Money, Weapons, Explosives, And Other Material Support To Entities Designated By The Secretary Of State As Foreign Terrorist Organizations.

 

A. We start by focusing precisely on what plaintiffs contend is protected by the First Amendment because their claims are plainly at odds with substantial precedent from the Supreme Court and this Court.

 

Plaintiffs seek an injunction against enforcement of the Antiterrorism Act insofar as it prohibits the act of providing material support knowingly to foreign terrorist organizations designated by the Secretary of State, unless the Government can prove that the contributor specifically intends to further the illicit aims of the group. Plaintiffs thus claim a First Amendment right to provide cash and other material support to foreign terrorist organizations, regardless of the uses to which that money and support will actually be put.

 

Plainly, some parts of the Antiterrorism Act in no way implicate the First Amendment. There is no First Amendment right to provide weapons, lethal substances, false documentation or identification, or explosives to a foreign terrorist organization, and plaintiffs allege no desire to do so. Thus, there is no reasonable argument that the part of the statute banning these items should be enjoined.

 

*31 As to the other parts of the Antiterrorism Act, however, plaintiffs' position is that they have a First Amendment right to donate cash and other material support to foreign terrorist organizations unless the Government can somehow discover and prove a bad intent. Plaintiffs urge this Court to adopt this view of the First Amendment even though, as pointed out above, money is fungible and terrorist groups neither maintain nor record any separation between their humanitarian and their terrorist activities. Furthermore, plaintiffs point to no practical mechanism by which a donor could enforce a promise that cash given to a foreign terrorist group will not be spent on a truck bomb.

 

Moreover, in many instances it will be impossible to draw clear lines between humanitarian and terrorist purposes. For instance, "humanitarian" aid could include financial assistance to the family of a suicide bomber. Moreover, any addition of funds to the coffers of terrorist groups frees other resources for terrorism.

 

Finally, plaintiffs assert this expansive First Amendment right of association even if the designated foreign terrorist group they are aiding has actually used its resources to kill or kidnap United States citizens, blow up our embassies, or develop weapons of mass destruction. Indeed, under plaintiffs' version of the First Amendment, the Constitution would protect "humanitarian" or "political" contributions even to al Qaeda.

 

*32 B. As noted above, this Court has already rejected plaintiffs' argument in its prior opinion in this case. Plaintiffs argue (Br. at 12) that, because this decision involved review of the denial of a preliminary injunction, it does not constitute law of this case and the Circuit. In addition, plaintiffs claim that this Court has issued intervening decisions that conflict with its previous ruling here. Both of these contentions are incorrect.

 

This Court's prior ruling on these constitutional issues was purely legal, and there is no indication in the relevant part of the opinion that the Court viewed its discussion on those issues as anything less than final. "Under law of the case doctrine, * * * one panel of an appellate court will not reconsider matters resolved in a prior appeal to another panel in the same case." Leslie Salt Co. v. United States, 55. F.3d 1388, 1392 (9th Cir. 1995). Further, no three-judge panel may reconsider a rule of law embodied in a prior published opinion; that can only be done by the Court sitting en banc. United States v. Gray, 967 F.2d 9322, 327 (9th Cir. 1992). And, this Court has held that a prior published decision in a case is controlling law of the Circuit and the law of the case, even when the prior ruling came on review of a preliminary injunction. See Hilao v Estate of Marcos, 103 F.3d 767, 771, 772 (9th Cir. 1996).

 

The Court has nevertheless established exceptions to the law-of-the-case doctrine when evidence in subsequent proceedings is substantially different, new *33 controlling authority is applicable to the issues, or the prior decision is "clearly erroneous and would work a manifest injustice." Pit River Home and Agricultural Co-op Assn. v. United States, 30 F.3d 1088, 1096- 97 (9th Cir. 1994).

 

As plaintiffs point out in their brief (at 12), this Court has said in earlier opinions that "[a]s a general rule," a prior decision on a preliminary injunction is not law of the case. See Golden State Transit Corp v. Los Angeles, 754 F.2d 830, 832 n.3 (9th Cir. 1985), reversed on other grounds, 475 U.S. 608 (1986). However, in Golden State, 754 F.2d at 832 n.3, the Court made clear that one of the exceptions to the law-of-the-case doctrine applied there because of contrary controlling authority. And, in Anaheim v Duncan, 658 F.2d 1326, 1328 (9th Cir. 1981), the parties presented additional evidence in the trial court after the preliminary injunction ruling, thus overcoming the law-of-the-case principle.

 

None of the exceptions to the law of the case doctrine is applicable here. The district court expressly noted that, on the relevant issues, the parties had presented no new evidence or arguments after the preliminary injunction rulings. ER 30. And, contrary to plaintiffs' contention (Br. at 18-19), there is no new controlling authority from this Circuit on point.

 

Plaintiffs point first to Planned Parenthood of the Columbia/Willamette, Inc v American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc). *34 However, that case involved liability for political speech - "wanted" posters and lists of persons and facilities that perform abortions - that assertedly was neither an incitement to imminent lawless action nor a true threat, and the Court's extended First Amendment analysis addressed the question of when speech is a "true threat" Id at 1070-82. The Planned Parenthood case plainly had nothing to do with the activity of providing material support to foreign entities engaging in deadly terrorism.

 

Plaintiffs secondly rely on McCoy v. Stewart, 282 F.3d 626 (9th Cir 2002), which involved whether a person could be criminally prosecuted for discussing the organization of his former street gang with members of a new gang. The Court examined whether McCoy's speech "was mere abstract advocacy of violence and lawlessness" (id at 631), which is protected by the Constitution, or, instead, unprotected incitement. Because McCoy had engaged only in protected speech with gang members, the Court found that his criminal conviction "strays dangerously close to a finding of guilt by association." Id. at 633. Once again, this case had nothing to do with providing material support to a foreign terrorist organization.

 

Not surprisingly, therefore, there is no reference in either decision relied upon by plaintiffs to this Court's prior decision in this case. Plaintiffs' claim of contrary *35 controlling authority is thus mistaken. [FN6] Consequently, this Court's prior published decision rejecting the constitutional claims that plaintiffs reassert on appeal should be taken as binding law of this Circuit and law of this case, and therefore controlling here on these issues.

 

    FN6. We note that a district court has dismissed a criminal indictment under the Antiterrorism Act on the ground that the statutory designation scheme violates on its face the due process rights of foreign organizations designated by the Secretary as terrorist. See United States v.

 

    Rahmani, _____ F. Supp.2d _____, 2002 WL 1393611 (C.D. Cal. 2002). We believe this decision is erroneous, and the Government has filed a notice of appeal from that ruling to this Court.

 

C. In any event, plaintiffs' constitutional arguments are precluded by several decisions by the Supreme Court, this Court, and other Circuits. The Supreme Court and this Court have on several occasions upheld the authority of the Government to place restrictions or outright bans on dealings with foreign entities that have acted against United States interests.

 

In Regan v. Wald, 468 U.S. 222, 242 (1984), the Supreme Court upheld a Presidential prohibition on any dealings with Cuba. The plaintiffs there contended that this restriction violated their Fifth Amendment right to travel. The Supreme Court rejected that claim, explaining: "Matters relating to the conduct of foreign relations * * * are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference" (id. at 242). The Court further *36 reasoned that "the President's decision to curtail the flow of hard currency to Cuba" was permissible because money "could then be used in support of Cuban adventurism" (id. at 243). It is impossible to square plaintiffs' argument here with this language in Regan.

 

Regan was not the first time the Supreme Court had taken this approach Earlier, in Zemel v Rusk, 381 U.S. 1 (1965), the Court recognized a Fifth Amendment right to travel, but nevertheless upheld the refusal by the Secretary of State to validate a U.S. citizen's passport for a journey to Cuba. Although in Zemel the Court noted the argument that the travel ban violated the plaintiff's First Amendment rights. Chief Justice Warren explained that the Government's validation denial was best seen as "an inhibition of action" (id. at 16). The Court observed that the plaintiff was "not being forced to choose between membership in an organization and freedom to travel" (ibid.).

 

This Court and the D.C. Circuit have likewise rejected arguments that restrictions on dealings with Cuba - designed to deprive the Castro regime of funds - violate First Amendment rights. See Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996) (upholding Cuban travel ban against First and Fifth Amendment attack: "The purpose of the travel ban is the same now as it has been since the ban was imposed almost 35 years ago - to restrict the flow of hard currency *37 into Cuba"); Walsh v. Brady, 927 F.2d 1229, 1234-35 (D.C. Cir. 1991) (rejecting First Amendment challenge to prohibition against payments to Cuba). And, in Farrakan v. Reagan, 669 F. Supp. 506, 512 (D.D.C. 1987), aff'd without opin, 851 F.2d 1500 (D.C. Cir. 1988), the court rejected a First Amendment claim by an organization wishing to transfer funds to Libya, in violation of economic sanctions regulations. Accord Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3d Cir.) (upholding Trading with the Enemy Act and Foreign Assets Control Regulations against First Amendment attack), cert. denied, 409 U.S. 933 (1972). [FN7]

 

    FN7. See also Kleindienst v Mandel, 408 U.S. 753 (1972) (based on facially legitimate foreign affairs considerations, Supreme Court upholds denial of visa to foreign professor despite First Amendment claims by U.S. citizens that they wished to associate with him in this country).

 

Moreover, two recent decisions by other courts heavily rely upon this Court's prior opinion in this case in rejecting similar First Amendment arguments.

 

In Boim v Quranic Literacy Institute, 291 F.3d 1000, 1025-27 (7th Cir. 2002), the Seventh Circuit quoted often from this Court's decision in rejecting a constitutional attack very similar to that made by the plaintiffs. Various entities that allegedly provided monetary support to Hamas, a designated foreign terrorist organization, argued that the First Amendment precluded civil tort liability under 18 U.S.C. § 2333 *38 for "humanitarian" contributions made in violation of 18 U.S.C. § 2339B. The Seventh Circuit disagreed, applying this Court's distinction between mere association and providing material support. See, e.g., 291 F.3d at 1026 ("Conduct giving rise to liability under Section 2339B, of course, does not implicate associational or speech rights. * * * There is no constitutional right to provide weapons and explosives to terrorists, nor is there any right to provide the resources with which the terrorists can purchase weapons or explosives"), id. at 1027 ("terrorist organizations use funds for illegal activities regardless of the intent of the donor, and Congress thus was compelled to attach liability to all donations to [foreign terrorist organizations]").

 

And, in United States v. Lindh, 212 F. Supp.2d 541, 2002 WL 1489373, at ** 19, 20 (E.D.Va. 2002), the court relied upon this Court's prior decision here in denying a motion to dismiss John Walker Lindh's indictment. Lindh argued that he had a First Amendment right to associate with the Taliban and al Qaeda. However, the court explained that "[t]he First Amendment's guarantee of associational freedom is no license to supply terrorist organizations with resources or material support in any form, including services as a combatant. Those who choose to furnish such material support to terrorists cannot hide or shield their conduct behind the First Amendment." Id. at *19.

 

*39 These decisions all uphold restrictions or bans on dealings with foreign entities without even a hint of plaintiffs' proposed specific intent requirement. Moreover, we note that there are many federal foreign sanctions programs now in effect that plaintiffs' broad theory also would invalidate. For example, on the basis of statutory authority in the International Emergency Economic Powers Act (50 U.S.C. § 1701 et seq), the President has imposed bans on financial dealings with several foreign nations (such as Libya and Iraq) for sponsoring terrorism or for other reasons. Under this statute, the President also has authority to impose bans on dealings with foreign governments or groups, which he has done. See Executive Order No. 12947 (60 Fed. Reg. 5079)(1995) (imposing ban on support to various organizations engaging in violence that undermines the Middle East peace process); Executive Order No. 13224 (66 Fed. Reg. 49079 (2001)) (imposing ban on financial dealings with a wide range of organizations linked to international terrorism).

 

Thus, this Court should reject, once again, plaintiffs' sweeping and unprecedented approach to the First Amendment.

 

D. Plaintiffs' reliance in their brief (at 13, 17-18) on NAACP v Claiborne Hardware Co, 458 U.S. 886 (1982), is misplaced. In that case, damages were assessed against organizers and supporters of a racial boycott of certain businesses in Mississippi; some aspects of the boycott were legal, but others were not because *40 they were enforced through violence and threats of violence. The Supreme Court overturned the damage awards because none of the defendants had been linked sufficiently to the violence.

 

The case at bar case is manifestly different. In NAACP, the Court focused on "association alone" and speech in support of the boycott. See id. at 920, 926, 930. As this Court previously held (205 F.3d at 1133), this case does not involve association or speech alone, but rather providing actual material support to a foreign terrorist group Accord Boim, 291 F.3d at 1026.

 

Nevertheless, plaintiffs argue(Br. at 16, 19-20, 32) that this Court's prior ruling is contrary to various Supreme Court decisions involving the Communist Party. None of the cases on which plaintiffs rely involved a ruling on whether the First Amendment protects a right to provide cash and other material support to a foreign terrorist organization knowingly. For example, United States v. Robel, 389 U.S. 258 (1967), involved a statutory prohibition on members of the Communist Party working in defense facilities. Scales v. United States, 367 U.S. 203 (1961), concerned a criminal prosecution for membership in the Communist Party. And Elfbrandt v. Russell, 384 U.S. 11 (1966), involved the validity of a loyalty oath for state employees.

 

*41 These cases are not remotely analogous to the knowing provision of material support to foreign terrorist organizations, In that setting, the applicable law is set forth in Regan v Wald, and the other cases we have discussed above.

 

E. As the district court and this Court previously determined (205 F.3d at 1135-36), the proper First Amendment analysis is that drawn from United States v O'Brien, 391 U.S. 367, 376-77 (1968). There, the Supreme Court established a four-part test to judge First Amendment claims against governmental actions that restrict speech along with activity. That test examines whether the action undertaken by the Government is within its constitutional authority, whether it furthers an important or substantial governmental interest, whether it is unrelated to the suppression of free expression, and whether it burdens substantially more speech than is necessary to further the Government's interest. See Turner Broadcasting System Inc. v. FCC, 521 U.S. 622, 662 (1994); O'Brien, 391 U.S. at 377. These standards are met in this case, as this Court has already concluded (205 F.3d at 1135-36).

 

First, the Government is obviously acting within its constitutional authority in seeking to undermine the ability of foreign terrorist groups to obtain material support. Second, striking at the ability of foreign entities to carry out terrorism is manifestly an important governmental interest. See Humanitarian Law Project, 205 F.3d at 1135.

 

*42 Third, the Antiterrorism Act is unrelated to the suppression of free expression Congress has not restricted in any way the ability of plaintiffs to speak and advocate as they wish. And, plaintiffs can even continue to associate with the foreign terrorist organizations at issue. What is forbidden is only the conduct of providing material support to these organizations.

 

Finally, the resulting incidental restrictions here on speech and association do not burden substantially more speech than is necessary to further the Government's legitimate interest in fighting terrorism. See 205 F.3d at 1136. Given that money is fungible, that terrorist organizations do not maintain open books with clearly divided accounts for different functions, and that material support for terrorist organizations means that those groups can utilize more resources for terrorism, the bar against provision of material support is necessary if the Antiterrorism Act is to have an impact. See Boim, 291 F.3d at 1027; Farrakhan, 669 F. Supp. at 512 ("In the face of the national security interests lying behind the [Libyan] sanction regulations, we conclude that there is no alternative that would allow organizations to speak through contributions while still allowing the government to effectuate its legitimate and compelling interests in national security"). [FN8]

 

    FN8. Plaintiffs question (Br. 28) whether the Antiterrorism Act actually furthers its purposes successfully because it permits donations of "medicine or religious articles." See 18 U.S.C. § 2339A(b). However, the D.C. Circuit made clear in Walsh v. Brady, 927 F.2d at 1235, that an embargo on trade is not constitutionally vulnerable simply because it allows some exceptions.

 

*43 This case therefore parallels Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988), which rejected First Amendment challenges to a State Department order requiring closure of the Palestine Information Office in Washington, D.C. That order was premised on the Secretary of State's determination that the office in question was being operated as an agent of the Palestine Liberation Organization, and on foreign policy initiatives designed to force the PLO to change its militant strategies. The U.S. citizen head of the office contended that the closure order violated his rights of free speech and association.

 

The D.C. Circuit applied the O'Brien test because it concluded that the Government's order was directed not at speech or association, but at the conduct of speaking in the capacity of a foreign mission of the PLO. 853 F.2d at 939. The court emphasized that the head of the closed office remained free to associate with whomever he wished and to speak as he wanted, as long as he did not do so as an agent of the PLO. The Government's foreign policy concerns and the incidental nature of the burden on the plaintiff's speech and associations convinced the D.C. Circuit that the Secretary's action was constitutional. Id. at 939-42.

 

*44 The Second Circuit faced analogous circumstances in Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977 (1969). There, the plaintiffs raised First Amendment challenges to licensing requirements to obtain publications originating in countries such as North Vietnam and China. The licenses also required that payment for such publications could be made only to blocked bank accounts. The Second Circuit applied O'Brien, and upheld the restrictions in light of their "proper, important, and substantial general purpose" to stop the dollar flow to then-hostile nations. 404 F.2d at 445-46. Accord Capital Cities/ABC, Inc v. Brady, 740 F. Supp. 1007, 1012-13 (S.D.N.Y. 1990) (rejecting First Amendment claim regarding restrictions on trade with Cuba).

 

In sum, the Antiterrorism Act is plainly constitutional under O'Brien. It addresses the conduct of providing material support to foreign terrorist organizations and burdens speech and associational rights only incidentally. The Government has a compelling interest in halting the conduct at issue because it provides material support to foreign terrorist organizations that threaten United States nationals or the national security of the United States. And, the Antiterrorism Act burdens only conduct necessary to achieving its compelling objectives.

 

F. Plaintiffs counter (Br. 21-23) that the O'Brien test is inapplicable here because that analysis is limned to "content neutral" actions. They urge that the *45 Antiterrorism Act should be judged under the same standard that the Supreme Court has applied in cases such as Buckley v. Valeo, 424 U.S. 1 (1976), and Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), which involved limits on donations to domestic political campaigns. That argument is wrong for several reasons.

 

As the Court explained in Shrink Missouri, the First Amendment "has its fullest and most urgent application precisely to the conduct of campaigns for political office." 528 U.S. at 386. The Antiterrorism Act prohibition applies to the conduct of providing material support to terrorist organizations, and it is directed at the non-communicative harm caused by such conduct. And while the financial records of domestic political parties or candidates can be examined to ensure that donated funds are not spent illegally, the Antiterrorism Act reflects Congress' recognition - fully supported by the record in this case - that the receipts and disbursements of foreign terrorist organizations cannot be so monitored.

 

Furthermore, the Antiterrorism Act is content-neutral because it prohibits the provision of material support to designated foreign terrorist organizations for any reason: the statute applies not only to donations that are intended as gestures of support for the organization's aims and methods, but also to business dealings and other transactions that do not involve any form of expressive conduct or symbolic speech.

 

*46 The fact that the Secretary is required to determine whether the terrorist activity of a particular organization "threatens the security of United States nationals or the national security of the United States" (8 U.S.C. § 1189(a)(1)(C)) also raises no meaningful First Amendment concerns. In conducting United States foreign policy, the Executive Branch necessarily draws distinctions between foreign States and has frequently imposed prohibitions on dealings with selected regimes. The Executive's decision to permit financial dealings with nations whose policies and actions it regards as consistent with United States interests, while forbidding contacts with Cuba, North Korea, Libya, and Iraq, cannot plausibly be claimed to violate the First Amendment. See Walsh v Brady, 927 F.2d at 1234-35 (utilizing an O'Brien analysis to reject a First Amendment attack against the prohibition on payments to Cuba); Farrakan, 669 F. Supp. at 512. The political branches are similarly free, as a constitutional matter, to distinguish among violent, foreign, non-governmental organizations based on the impact of their activities on United States interests.

 

Moreover, "[t]he 'principal inquiry' in determining whether a regulation is content-neutral or content-based is 'whether the government has adopted the regulation * * * because of agreement or disagreement with the message it conveys. Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir. 1996) (quoting in part *47Turner Broadcasting System, Inc v FCC, 512 U.S. 622, 642 (1994)). Accord Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

 

In this instance, the legislative record - discussed above (at 8-9) - establishes that Congress had no intent to punish any particular message or to reward a different message. Rather, Congress acted in order to interdict the flow of material support for international terrorism.

 

In sum, the district court and this Court in its prior decision correctly applied intermediate scrutiny here, and rejected plaintiffs' broad First Amendment claims. And, even if a stricter level of scrutiny were appropriate, for the reasons stated by the district court (9 F. Supp.2d at 1197 n.20), the Antiterrorism Act would still be valid. See Boim, 291 F.3d at 1027.

 

G. Plaintiffs also contend (Br. 30-34) that the Antiterrorism Act violates the First and Fifth Amendments because it supposedly gives the Secretary "unfettered" discretion to designate an organization as "terrorist" and thereby trigger the statute's prohibitions. The district court and this Court (205 F.3d at 1137) correctly rejected this argument.

 

The Secretary does not have unfettered discretion. As explained above, Congress authorized the Secretary to designate an organization as a "foreign terrorist organization" if and only if: (1) "the organization is a foreign organization"; (2) "the *48 organization engages in terrorist activity"; and (3) "the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1)(2000). [FN9] Congress additionally set forth detailed definitions of the terms "terrorist activity" and "engage in terrorist activity.' 8 U.S.C. §§ 1182(a)(3)(B)(ii) and (iii). The term "national security" is also statutory defined to mean the "national defense, foreign relations, or economic interests of the United States." 8 U.S.C. § 1189(c)(2). The Antiterrorism Act also provides for judicial review of the Secretary's designation. 8 U.S.C. § 1189(b).

 

    FN9. After the PKK and LTTE were redesignated in 2001, Congress expanded the statutory criteria for designation to encompass a foreign organization that engages in "terrorism" (as defined in 22 U.S.C. § 2656f(d)(2)), or retains the capability and intent to engage in terrorist activity or terrorism, so long as the organization's terrorist activity or terrorism threatens U.S. national security or the security of U.S. nationals. See USA PATRIOT Act (Pub. L. No. 107-56, 115 Stat. 272, 349) (amending 8 U.S.C. § 1189(a)(1)). Although the statutory changes are not relevant to this case, the point made in the text applies to the amended statute as well; the Secretary simply does not have unfettered discretion to designate.

 

We note that similar delegations, notably under the International Emergency Economic Powers Act (50 U.S.C. § 1701, et seq.), which authorizes the President to institute an embargo in peacetime to deal with threats to "the national security, foreign policy or economy of the United States," have been upheld. See United States v. Arch Trading Co., 987 F.2d 1087, 1092 (4th Cir. 1993). And this Court has upheld *49 the delegation of authority to the President to impose the Cuban embargo if it is "in the national interest of the United States." Freedom To Travel Campaign, 82 F.3d at 1437.

 

The heart of plaintiffs' argument nevertheless seems to be that the Antiterrorism Act is constitutionally deficient because, they say, it allows the Secretary to enforce the prohibition on material support selectively against targeted groups.

 

However, as the cases discussed above show, no principle of constitutional law forbids the Executive from determining whether a foreign group's terrorist activities threaten national security interests. Because the Secretary acts under the Antiterrorism Act with express authority from Congress, he "acts at the apex of [his] power"" Palestine Information Office, 853 F.2d at 937. "In such a case the executive action would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Dames & Moore v. Regan, 453 U.S. 654, 668 (1981).

 

In this regard, "Congress - in giving the Executive authority over matters of foreign affairs - must of necessity paint with a brush broader than it customarily wields in domestic areas." Zemel v Rusk, 381 U.S. at 17. As this Court has explained, "[t]he level of deference is so much greater [in the area of foreign affairs] that a delegation [which is] improper domestically may be valid in the foreign area." *50 Freedom to Travel Campaign, 82 F.3d at 1438. See also District No. 1, Pacific Coast District Marine Engineer's Beneficial Assn. v Maritime Administration, 215 F.3d 37, 42 (D.C. Cir. 2000) (determinations regarding foreign policy and the national interest are proper subjects for the Executive, and "are not subjects fit for judicial involvement").

 

Plaintiffs would have this Court brush aside this precedent and effectively enjoin the Secretary from exercising foreign policy discretion under the Antiterrorism Act But, the Secretary necessarily must be permitted the latitude to take into account many policy factors when exercising his authority under the Antiterrorism Act. See DKT Memorial Fund, Ltd. v. Agency for International Development, 887 F.2d 275, 289-90 (D.C. Cir. 1989) ("To hold that the United States government cannot make viewpoint-based choices in foreign affairs would be unthinkable").

 

Thus, this Court previously and the district court now applied the correct analysis, and properly rejected plaintiffs' broad constitutional attacks on the Antiterrorism Act.

 

II. The Prohibitions In The Antiterrorism Act Against Providing "Personnel" And "Training" To Foreign Terrorist Organizations Are Not Unconstitutionally Vague.

 

Although the district court primarily denied the injunction sought by plaintiffs, it did enjoin two aspects of the statute, those prohibiting the provision of "personnel" *51 or "training" to designated foreign terrorist organizations. The court reasoned that these two terms are unconstitutionally vague. ER 29-30.

 

As explained earlier, in the preliminary injunction appeal, this Court affirmed the prior injunction regarding these two provisions. On these points, however, the Court applied a "deferential standard of review" because of the interlocutory nature of the appeal. 205 F.3d at 1138. Thus, the Court's opinion on these issues is neither law of the case nor controlling Circuit precedent on the legal issues involved. As we now show, the Antiterrorism Act's prohibitions on providing "personnel" and "training" are facially constitutional and should not be enjoined.

 

A. As a basic principle of due process, criminal prohibitions must give a person of ordinary intelligence "fair warning" as to the range of conduct that is prohibited, and must establish adequate guidance to govern the exercise of discretion by Executive officials in order to avoid arbitrary or discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). To satisfy this requirement the Government need not define an offense with "mathematical certainty" (id. at 110), but must only provide "relatively clear guidelines as to prohibited conduct." Posters N'Things, Ltd. v. United States, 511 U.S. 513, 525 (1994).

 

And, because some exercise of enforcement discretion is inevitable (Grayned, 408 U.S. at 114). Congress need only "establish minimal guidelines to govern law *52 enforcement." Kolender v. Lawson, 461 U.S. 352, 358 (1983). To succeed on a claim that a challenged provision is unconstitutionally vague on its face, a plaintiff must "at least demonstrate[] implication of 'a substantial amount of constitutionally protected conduct."' Schwartzmiller v. Gardner, 752 F.2d 1341, 1348 (9th Cir. 1984).

 

Although greater statutory precision is required when the Government imposes criminal sanctions or when the statute "abut[s] upon sensitive areas of basic First Amendment freedoms" (Grayned, 408 U.S. at 109), even in those contexts "due process does not require impossible standards of clarity." Kolender, 461 U.S. at 361. Moreover, where, as here, the statute includes a scienter requirement ("whoever * * * knowingly provides material support or resources," 18 U.S.C. 2339B(a)(1)), vagueness concerns may be mitigated, "especially with respect to the adequacy of notice * * * that [the] conduct is proscribed." Posters N' Things. Ltd, 511 U.S. at 526.

 

In addition, and of considerable importance here, if a class of offenses can be made constitutionally definite by a reasonable construction of the statute, the courts are under a "duty to give the statute that construction." United States v Harriss, 347 U.S. 612, 618 (1954). Such a construction is possible here.

 

*53 B.1. The district court struck down the prohibition against providing "personnel" to foreign terrorist organizations, in its entirety, because the Court concluded that this provision could be applied to speech supporting such organizations, and would be unconstitutional as so applied. 9 F. Supp.2d at 1203-04. The court erred in straining to construe the "personnel" provision to create arguably unconstitutional applications, and then using the existence of those applications to invalidate the provision in its entirety.

 

The Antiterrorism Act's ban on the provision of "personnel" to designated foreign terrorist organizations is clearly aimed at denying such organizations the human resources necessary to carry out their objectives. The term "personnel" generally describes employees or others working under the direction or control of a specific entity. See Webster's Ninth New Collegiate Dictionary 878 (1989) ("a body of persons usu. employed (as in a factory, office, or organization)").

 

Moreover, the Antiterrorism Act prohibits giving "personnel" "to" designated foreign terrorist organizations. See 18 U.S.C. §§ 2339A(b) and 2339B(a)(1) (emphasis added). That proscription is not naturally understood to apply to independent actions, such as writing letters on one's own to support or further the aims of an organization. Rather, it covers situations in which individuals have submitted themselves to the *54 direction or control of a foreign terrorist organization; independent advocacy of a designated organization's interests or agenda is outside the coverage of the statute.

 

As discussed earlier (at 22), this is the construction formally given to the term "personnel" in the U.S. Attorneys' Manual. United States Attorneys' Manual, §9-91.100. Although the district court was correct in noting that this interpretation is nor, legally binding, it does, at a minimum, reasonably construe the applicable statutory language. Recently, moreover, one court has adopted that construction as correct. See Lindh, 2002 WL 1489373, at *20 (adopting this definition of "personnel"; "[s]imply put, the term 'personnel' does not extend to independent actors").

 

2. So construed, the term "personnel" gives constitutionally adequate notice to the public of what is prohibited, and does not implicate a substantial amount of constitutionally protected activity. See Lindh, 2002 WL 1489373, at *20-*22 (rejecting vagueness and overbreadth challenges to the term "personnel"). Rather, the primary effect of such a ban is to prevent the provision of mercenaries, terrorists, and many other actors whose activities do not even arguably implicate the First Amendment. Any independent speech in favor or on behalf of a foreign terrorist organization would not be prohibited by the statute.

 

In its prior opinion, this Court did not indicate that the term "personnel" would be impermissibly vague, or that it would impinge unduly on constitutionally protected *55 activities, if the statutory ban were limited to persons acting under the direction or control of foreign terrorist organizations. Rather, this Court refused to accept that limiting construction because it reviewed the district court's entry of a preliminary injunction under a deferential standard of review, and because it regarded that construction as effectively rewriting the statute. See 205 F.3d at 1137-38.

 

In fact, however, the limiting construction in the U.S. Attorney's Manual is wholly reasonable, accords with Congressional intent, [FN10] and should therefore be adopted - particularly if the alternative is facial invalidation of the "personnel" prohibition. See United States v. Santos-Pinon, 146 F.3d 734, 736 (9th Cir. 1998); United States v. Santa Maria, 15 F.3d 879, 881 (9th Cir. 1994) (statutes must be construed to be constitutional, if possible). Moreover, the concerns expressed by this Court about the statute's potential effect on independent advocacy (205 F.3d at 1137) are obviated by our limiting construction, which clearly and definitively excludes independent advocacy from the scope of the criminal prohibition.

 

    FN10. As the legislative history confirms, "[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. 383, at 44.

 

It is true that the construction set forth above and adopted in Lindh would criminalize working as a spokesman for a designated group, as well as other speech *56 that takes place under the group's direction or control. But such speech is either entitled to no First Amendment protection at all (e.g., writing ransom demands or threatening the lives of civilians), or at most receives only limited First Amendment protection, since the speaker has by definition agreed to subordinate his own views to the control of the foreign entity. See Palestine Information Office, 853 F.2d at 941 ("No court has ever found in the right to freedom of association a right to represent a foreign entity on American soil").

 

Thus, a ban on such speech would be constitutional in this context, given the weighty national security and foreign policy interests underlying the statute. See id at 941-942 ("[e]ven if the appellants did have some minimal free association right that was infringed upon by the order, this court would be compelled to consider the strong interest of the government in defending the country against foreign encroachments and dangers") (internal quotation marks omitted); Lindh, 2002 WL 1489373, at n.76 (providing human resources to terrorists is as inimical to national security as providing other kinds of resources).

 

But, even assuming that a particular application of the ban to a person speaking under the direction or control of a foreign terrorist organization might raise significant First Amendment questions, that prospect cannot justify invalidation of the term "personnel" in its entirety, including circumstances (such as the provision of *57 mercenaries or suicide bombers) where the statute clearly applies and the conduct at issue is clearly unprotected. See Hill v. Colorado, 530 U.S. 703, 733 (2000) (rejecting facial vagueness attack where statute was surely valid in the vast majority of its intended applications); United States v. Harriss, 347 U.S. at 618.

 

Consequently, as properly construed based on the common usage of its terms, the Antiterrorism Act's prohibition on providing "personnel" to designated foreign terrorist organizations is sufficiently definite to survive plaintiffs' constitutional challenge.

 

C. For similar reasons, the district court also erred when it enjoined enforcement of the ban against providing "training" to designated foreign terrorist organizations.

 

1. The term "training" is readily intelligible to the average person, and the statutory ban does not encompass a substantial amount of protected activity

 

The verb "train" is commonly understood to mean: "to teach so as to make fit, qualified, or proficient." Webster's Ninth New Collegiate Dictionary 1251 (1989). See also United States Attorneys 'Manual, §9-91.100 (quoting this definition). As a general matter, helping foreign terrorists achieve proficiency obviously is not a protected First Amendment activity. Thus, the statutory ban quite properly precludes the training of foreign terrorists on how to use weapons, build bombs, evade *58 surveillance, or launder funds. There is no reasonable argument that most "training" is constitutionally protected.

 

In its prior opinion, this Court discussed two examples of training that might raise First Amendment concerns: instructing a designated terrorist organization on how to petition the United Nations, and teaching international law to such an organization. 205 F.3d at 1138. But neither the possibility of such applications, nor the presence in this particular case of the unusual plaintiff who wishes to "train" a designated foreign terrorist organization in political advocacy and international law, justifies invalidating the "training" provision in its entirety.

 

It is doubtful that the statutory ban on "training" foreign terrorist organizations would be unconstitutional even as applied to the activities identified by this Court. As with the provision of cash or goods, support through "training" even of a foreign terrorist organization's innocent activities may have the effect of making other resources available for violent acts. Moreover, as recent terrorist attacks have shown, even seemingly innocuous training can have disastrous consequences: for example, training in how to fly an airplane, drive a truck, or navigate a boat may enable the trainee to destroy buildings, bomb United States embassies, or steer dinghies into United States destroyers.

 

*59 2. In any event, the Antiterrorism Act's ban on the provision of "training" to designated organizations is surely both clear and constitutional in the vast majority of its intended applications, and that is sufficient to defeat a facial challenge for vagueness. See, e.g., Hill v. Colorado, 530 U.S. at 733; United States v. Harriss, 347 U.S. at 618. Because "the general class of offenses to which the statute is directed is plainly within its terms," the prohibition on training should not "be struck down as vague, even though marginal cases could be put where doubts might arise." Ibid

 

That legal principle is particularly apt here, because the Antiterrorism Act's ban on the provision of training, personnel, and other material support to designated foreign terrorist organizations serves compelling national security and foreign policy interests, and because facial invalidation would preclude prosecution under the training ban in Section 2339B for such activities as training foreign terrorists in how to build bombs, use explosives, or fly aircraft.

 

Moreover, there is no vagueness in the statutory language here; the Antiterrorism Act unequivocally prohibits persons within the United States or subject to its jurisdiction from providing any form of "training" to designated foreign terrorist organizations. This district court seemed to believe that the effective reach of the statute is unclear because some of its applications are arguably unconstitutional. We are aware of no authority, however, suggesting that a statute may be deemed both *60 impermissibly vague and subject to facial invalidation simply because particular applications of the law raise close constitutional questions.

 

Rather, plaintiffs' contention that the "training" ban is invalid in all of its applications because it is invalid in some is properly analyzed as an overbreadth challenge instead of a vagueness challenge. But even in a First Amendment challenge, "[o]nly a statute that is substantially overbroad may be invalidated on its face" (City of Houston v. Hill, 482 U.S. 451, 458 (1987)), and "substantial" overbreadth must be "judged in relation to [a] statute's plainly legitimate sweep," Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973); see also, e.g, NEA v. Finley, 524 U.S. 569, 580 (1998) (facial invalidation "has been employed by the Supreme Court sparingly and only as a last resort") (quoting Broadrick, 413 U.S. at 613). The district court did not, and could not, conclude that the "training" provision is substantially overbroad.

 

The Antiterrorism Act's "training" ban is constitutional in the vast majority of its intended applications, and potential constitutional infirmities in isolated applications of the statute provide no basis for invalidating the provision in its entirety.

 

*61 CONCLUSION

 

For the foregoing reasons, the district court's judgment denying the injunction requested by the plaintiffs should be affirmed. The district court's injunction against enforcement of the terms "personnel" and "training" in the Antiterrorism Act should be vacated, and the case should be remanded to the district court with instructions to enter judgment for defendants.