2002 WL 32298363 (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.

 

November 8, 2002.

 

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

 

Reply 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

 

INTRODUCTION ... 1

 

CONCLUSION ... 12

 

CERTIFICATE OF COMPLIANCE

 

CERTIFICATE OF SERVICE

 

TABLE OF AUTHORITIES

 

Cases:

 

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ... 10

 

City of Houston v. Hill, 482 U.S. 451 (1987) ... 10

 

Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982) ... 7

 

Hill v. Colorado, 530 U.S. 703 (2000) ... 7

 

NEA v. Finley, 524 U.S. 569 (1998) ... 10

 

Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988) ... 7

 

United States v. Battle, D. Oregon, Crim. No.02-399HA (October 2, 2002) ... 5

 

United States v. Goba, W.D.N.Y, Crim No ... (October 21, 2002) ... 6

 

United States v. Harriss, 347 U.S. 612 (1954) ... 3

 

*ii United States v. Koubriti, E.D.Mich., Crim No.01- 80778 (August 28, 2001) ... 6

 

United States v. Lindh, E.D.Va., Crim No. 02-37A (February 5, 2001) ... 5

 

United States v. Lindh, 212 F. Supp.2d 541 (E.D.Va. 2002) ... 5

 

United States v. Stewart, S.D.N.Y., Crim No.02-395 ... 6

 

United States v. Ujamma, W.D. Wash., Crim No. ... (August 28, 2002) ... 6

 

Constitution:

 

United States Constitution, First Amendment ... 5, 7, 10

 

Statutes:

 

Antiterrorism Act of 1996:

 

18 U.S.C. § 2339A ... 6, 7, 8, 9

 

18 U.S.C. § 2339A(a) ... 9

 

18 U.S.C. § 2339A(b) ... 1

 

18 U.S.C. § 2339B ... 1, 2, 5, 8, 9

 

Miscellaneous:

 

U.S. Attorney's Manual, § 9-91.100 (2001) ... 4, 8

 

Webster's Ninth New Collegiate Dictionary 1251 (1989) ... 8

 

*1 INTRODUCTION

 

The Government's cross-appeal here challenges the district court's ruling striking down two key aspects of the Antiterrorism Act of 1996. The district court's reasoning has potentially devastating consequences because that statute is proving to be one of the most effective means for combating those in the United States who would aid global terrorists.

 

*2 The district court held that the terms "personnel" and "training" in 18 U.S.C. § 2339A(b) are too vague to support a criminal prosecution under 18 U.S.C. § 2339B, and that the plaintiffs are thus free to provide these types of support to the two relevant foreign terrorist organizations.

 

The plaintiffs support this decision, asserting first that this Court should not attempt to give "personnel" a reasonable interpretation, consistent with the usual use of that term and Congress' purpose in enacting Section 2339B. Rather, plaintiffs argue that this Court has no option but to invalidate in its entirety this important tool in fighting terrorist financing.

 

The plaintiffs thus view this Court's proper function not as attempting to preserve Congress' work to the fullest extent possible in order to achieve important goals, but instead as interpreting statutes rigidly, with no effort to preserve even their clearly constitutional applications.

 

The plaintiffs further contend that, because there are some examples of facially innocuous types of training they could provide to Foreign Terrorist Organizations, "training" is also too vague a term, and this Court also must strike it down in its entirety. Accordingly, the plaintiffs urge this Court to ignore Congress' recognition that even facially innocuous training could facilitate terrorist activity, and to invalidate *3 this part of the Antiterrorism Act because of the odd types of assistance they may wish to render Foreign Terrorist Organizations.

 

As we argued in our opening brief in this appeal, plaintiffs' startlingly negative approach to statutory construction and constitutional analysis is inconsistent with Supreme Court precedent, and should be rejected. The difference in positions between us and the plaintiffs regarding the appropriate judicial function in a case like this one is so basic and stark that there is little to be added to our opening brief. However, we briefly respond here to the points plaintiffs have raised.

 

A. Our opening brief in this appeal demonstrated first that this panel is not bound by the ruling by the prior panel of this Court on the issue of the validity of "personnel" and "training." That panel made clear that it was applying a special deferential standard of review to the original district court ruling in the preliminary injunction appeal context. 205 F.3d at 1138. Significantly, plaintiffs agree in their Cross-Appellee brief (at 3-4) that this previous ruling by the Court on this issue is not binding on this panel.

 

B. With regard to "personnel," we showed in our opening brief (at 52) that the Court has a duty to give an Act of Congress a reasonable construction in order to make the statute constitutionally definite. See United States v. Harriss, 347 U.S. 612, 618 (1954). Consequently, we urged the Court to adopt the meaning of providing *4 "personnel" set out in the United States Attorney's Manual, which 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 taking orders from the entity * * *." U.S. Attorney's Manual, § 9-91.100 (2001). We explained (at 53) that this interpretation flows directly from the dictionary definition of that term.

 

The plaintiffs argue instead that "personnel" cannot be given such a definition; they say (Br. at 27) that otherwise the Court would be "rewriting" the statute. But, the Court would be doing no such thing simply by giving "personnel" the meaning it carries in the dictionary. Rather, the Court would merely be giving content to the word Congress chose to use based on both ordinary usage and on the obligation to construe a statute as constitutional if that is possible.

 

The plaintiffs further assert (Br. at 27-28) that the definition set out in the U.S. Attorney's Manual is at odds with the rationale for the Antiterrorism Act's prohibition on the provision of material support to Foreign Terrorist Organizations - that all support for the designated organizations must be prohibited because any support for a terrorist entity frees resources that can then be used for terrorist purposes.

 

This argument is incorrect even though independent advocacy in support of a Foreign Terrorist Organization might in some circumstances assist the group in the sense of enabling it to divert resources to violent acts. But however that may be, *5 Congress can scarcely be faulted for seeking to combat terrorist activity in a way that does not impinge upon the core First Amendment freedom of a United States resident to express his own views independently upon matters of public concern. And it is perverse of plaintiffs to suggest that, because a straightforward construction of the prohibition against providing "personnel" to a Foreign Terrorist Organization would not address harm that might result from independent advocacy to the public at large, the provision should be interpreted more broadly and then declared unconstitutional in its entirety.

 

Furthermore, we note that the "personnel" provision of Section 2339B has been, or is being, used in a variety of criminal proceedings in which there can be no reasonable concerns about vagueness. For example, in United States v. Lindh, E.D.Va., Crim No. 02-37A (February 5, 2001), the defendant was charged with providing "personnel" to al Qaeda based on acts of attending its terrorist training camp, swearing allegiance in jihad, and volunteering for military service in its forces. These charges were then upheld against vagueness and overbreadth attacks. See United States v. Lindh, 212 F. Supp.2d 541, 572-74 (E.D.Va. 2002).

 

In addition, in United States v. Battle, D. Oregon, Crim. No.02-399HA (October 2, 2002), defendants are charged with providing "personnel" by conspiring to travel to Taliban-controlled Afghanistan after September 11, 2001, to join al Qaeda *6 forces fighting jihad, and to take up arms against the United States and its allied military forces serving in Afghanistan. And, in United States v. Goba, W.D.N.Y, Crim No __________ )(October 21, 2002), the defendants are charged with providing "personnel" by traveling to Afghanistan to engage in jihad training. In United States v. Stewart, S.D.N.Y., Crim No.02-395, the defendants supplied "personnel" by providing themselves to the Islamic Group by facilitating communication to it by its imprisoned leader). Finally, in United States v. Ujamma, W.D. Wash., Crim No. __________ (August 28, 2002), the defendants are charged with violating the "personnel" provision by conspiring to recruit persons interested in violent jihad and jihad training, and to sponsor partially trained persons for operations coordinated by al Qaeda). [FN1]

 

    FN1. The term "personnel" has also been charged as an item of material support or resources in cases under 18 U.S.C. § 2339A. See United States v. Koubriti, E.D.Mich., Crim No.01- 80778 (August 28, 2001)(conspiring to

 

    recruit and train persons for jihad).

 

Thus, the "personnel" provision is being applied in the criminal context in various circumstances that plainly fall within the statute's terms.

 

The plaintiffs also contend (Br. at 27 n.7) that the Antiterrorism Act's ban on the provision of "personnel" to Foreign Terrorist Organizations is unconstitutional even as applied to some situations in which an individual does submit himself to the organization's direction or control. Plaintiffs assert (without citation to any authority) *7 that activities such as writing, speaking, and distributing literature are protected under the First Amendment even when done under the direction or control of a Foreign Terrorist Organization.

 

However, an individual who has agreed to subordinate his own views to those of a Foreign Terrorist Organization has a substantially reduced First Amendment interest in unrestricted communication of the group's message, as compared to an individual engaged in independent expression of support for the organization's goals or methods. See Palestine Information Office v. Shultz, 853 F.2d 932, 941 (D.C. Cir. 1988) ("No court has ever found in the right to freedom of association a right to represent a foreign entity on American soil").

 

For the various reasons stated in our opening brief, the Antiterrorism Act's "personnel" ban is thus constitutional even as applied to services that involve communication. But even if the statute's application to some such conduct were thought to raise substantial constitutional concerns, that is an insufficient basis for invalidating the "personnel" ban in its entirety. Hill v. Colorado, 530 U.S. 703, 733 (2000). Moreover, as the Supreme Court has made clear, the fact that a "statute may leave room for uncertainty at the periphery" simply does not render it unconstitutionally vague. Federal Election Commission v. National Right to Work Committee, 459 U.S. 197, 211 (1982).

 

*8 The plaintiffs spend a considerable portion of their cross-appellee brief (Br. at 29-31), rebutting an argument we have not made on appeal. They assert that the U.S. Attorney's Manual interpretation of "personnel" is not binding. Although this contention is true, it is irrelevant for the argument we have made: "personnel" can and should be interpreted with reference to standard dictionaries, which demonstrate that this term is properly limited, and therefore constitutional in all of its applications.

 

C. With regard to "training," we also urged in our opening brief (at 57-58) reference to a common dictionary definition, which is embodied in the U.S. Attorney's Manual (§ 9-91.100): "to teach so as to make fit, qualified, or proficient." Webster's Ninth New Collegiate Dictionary 1251 (1989).

 

The plaintiffs respond by conceding (Br. at 33) that some types of training (such as for firearms), would serve a Foreign Terrorist Organization's illegal ends, but then arguing that many other types of training would be relatively innocuous. As we have previously pointed out, however, the United States has unfortunately learned in recent years through terrible tragedies that apparently innocent training - such as how to fly an airplane, or how to drive a truck, or how to pilot a small motorcraft - can facilitate deadly terrorist acts, such as destroying buildings and damaging ships.

 

The plaintiffs further respond (Br. at 33) that including training within Section 2339B is unnecessary in any event because any training given for the purpose of *9 furthering terrorist activity is already proscribed by 18 U.S.C. § 2339A. This argument is seriously mistaken because Section 2339B covers a range of activities that are reasonably forbidden, but are not covered by Section 2339A.

 

For example, Section 2339B includes the very types of training mentioned above - seemingly innocuous training that is typically used for perfectly lawful purposes. Thus, a person could train a Tamil Tiger operative on how to fly an airplane, fully and openly intending that this training be used by the pilot solely in order to transport Tamil Tiger leaders to peace conferences. But, obviously, the Tamil Tiger operative can use that same training in order to destroy buildings in Sri Lanka or elsewhere.

 

Moreover, Section 2339A prohibits giving training "knowing or intending" that it is "to be used in preparation for, or in carrying out" terrorist actions. 18 U.S.C. § 2339A(a). An individual could provide even firearms or martial arts training to a Tamil Tiger operative, believing fully and intending that these skills be used only for self-defense or protection of the safety of Tamil Tigers leaders. But, again, the Tamil Tiger trainee could then misuse that very training in order to murder Sri Lankan officials. Section 2339B would therefore prohibit this training, while Section 2339A would not.

 

Simply put, plaintiffs choose to ignore our point that training foreign terrorists, just like giving them money, is dangerous quite apart from the specific intent of the *10 donor. And, plaintiffs' basic assumption underlying their argument is that they have a fundamental constitutional right to train members of a Foreign Terrorist Organization in virtually any kind of skill, as long as plaintiffs themselves do not intend for such training to lead to an illegal act. But for the reasons argued in our opening brief, there is no such constitutional right.

 

D. The plaintiffs alternatively toss in (Br. at 34) a final cursory argument that the terms "personnel" and "training" are unconstitutionally overbroad. This point adds little or no support for plaintiffs' claim. As we pointed out in our opening brief, 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)). Moreover, "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).

 

Here, the bans on "personnel" and "training" for Foreign Terrorist Organizations have plainly legitimate sweeps because they prevent persons from providing themselves or others to work under the direction or control of such entities, and they prevent training that, while seemingly innocuous, is actually something that the entity *11 can put to a nefarious use, or which enables an entity to accomplish tasks in an easier way and thus have more time and resources for terrorism. Under this rigorous standard, the district court did not, and could not, conclude that the "personnel" and "training" provisions are substantially overbroad.

 

*12 CONCLUSION

 

For the foregoing reasons and those stated in our opening brief, 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.