Humanitarian Law Project v. Ashcroft

2002 WL 32298368 (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,

John ASHCROFT, et al., Defendants-Appellees/Cross-Appellants.

Nos. 02-55082, 02-55083.

October 4, 2002.

On Appeal from the Order Granting in Part and Denying in Part Cross Motions for Summary Judgment Entered by the United States District Court for the Central District of California, Hon. Audrey B. Collins (Dist. Ct. No. CV 98- 1971 ABC Central District of California)

Plaintiffs' Appellants' Reply Brief and Brief of Cross-Appellees

David Cole [FN*], c/o Georgetown University Law Center, 600 New Jersey Avenue NW, Washington, D C 20001, T 202-662-9078, Nancy Chang [FN*], Center for Constitutional Rights, 666 Broadway, 7th Floot, New York, New York 10012, T 212 614-6420, F 212 614-6464, Carol A Sobel, Law Office of Carol A. Sobel, 429 Santa Monica Boulevard. Ste. 550, Santa Monica, California 90401, T 310 393-3055, Paul L Hoffman (SBN 71244), Schonbrun, De Simone, Seplow Harris & Hoffman, LLP, 723 Ocean Front Walk, Venice, California 90291, T 310 396-0731, Visuvanathan Rudrakumaran, 875 Avenue of the Americas, New York, New York 10001, T 212 290-2925, Counsel, Plaintiff World Tamil Coordinating Comm, Attorneys for Plaintiffs-Cross-Appellees/Appellants

FN* Counsel of Record

FN* Counsel gratefully acknowledges the assistance of Kate Didech, a law student at Georgetown University Law Center, on this brief.

*i TABLE OF CONTENTS

TABLE OF AUTHORITIES ... iii

INTRODUCTION ... 1

ARGUMENT ... 7

I. THE STATUTE IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS' SUPPORT OF LAWFUL, NONVIOLENT ACTIVITIES OF DESIGNATED GROUPS ... 7

A. The Prior Panel's Decision Is Not Binding, Because It Arose on Review of a Preliminary Injunction ... 8

B The Fact That Money is Fungible Does Not Permit Imposing Guilt by Association by Selectively Penalizing Support of Disfavored Groups ... 11

C. Barring Travel to or Trade with a Foreign Nation Does Not Raise the Same First Amendment Concern that Targeting Association with Designated Political Organizations Does ... 15

D. AEDPA Is Not Subject to Intermediate O'Brien Scrutiny, Because It Is Content-Based ... 20

E. The Foreign Affairs Setting Does Not Justify Vague and Overbroad Licensing of First Amendment Activity ... 22

II. AEDPA'S PROHIBITION ON THE PROVISION OF "TRAINING" AND "PERSONNEL" IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD ... 24

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

*ii 1 Personnel ... 26

2 Training ... 31

B The Terms "Training" and "Personnel" Are Unconstitutionally Overbroad ... 34

CONCLUSION ... 35

STATEMENT OF COMPLIANCE ... 36

*iii TABLE OF AUTHORITIES

CASES.

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) ... 13

Angoon v Hodel, 803 F.2d 1016 (9th Cir. 1986) ... 8

Aptheker v Secretary of State, 378 U.S 500 (1964) ... 16,17

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

Berrigan v. Sigler, 499 F.2d 514 B(D.C. Cir. 1974) ... 8

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

Boim v. Quranic Literacy Institute, 291 F 3d 1000 (7th Cir. 2002) ... 18,19,20

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

Bullfrog Films, Inc. v Wick, 847 F.2d 502 (9th Cir. 1988) ... 24

City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S 750 (1988) ... 31

*iv Council of Alternative Political Parties v. Hooks, 170 F.3d 64 (3d Cir. 1999) ... 8

Crandon v. United States, 494 U.S. 152 (1990) ... 32

Fleuti v. Rosenberg, 302 F.2d 652 (9th Cir. 1962), vacated on other grounds, 374 U.S 449 (1963) ... 29,31

Freedom to Travel Campaign, 82 F 3d 1431 (9th Cir. 1996) ... 16,17

Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830 (9th Cir. 1985), rev'd on other grounds, 475 U.S. 608 (1986) ... 8

Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 26,30

Healy v. James, 408 U.S. 169 (1972) ... 24

Hilao v Estate of Marcos, 103 F.3d 767 (9th Cir 1996) ... 8

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

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

Kent v. Dulles, 357 U.S. 116 (1958) ... 16,17

*v Kolender v. Lawson, 461 U S 352 (1983) ... 26,35

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

McCoy v Stewart, 282 F.3d 626 (9th Cir. 2002) ... 10

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

NAACP v Claiborne Hardware, 458 U.S. 886 (1982) ... 10

Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000) ... 9

Nova Records, Inc., v. Sendak, 706 F.2d 782 (7th Cir. 1983) ... 35

Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988) ... 18

Planned Parenthood v American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc) ... 10,11

Police Dept of Chicago v. Mosley, 408 U.S. 92 (1972) ... 22

Regan v. Wald, 468 U.S. 222 (1984) ... 16,17

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ... 26

*vi Reno v Koray, 515 U.S 50 (1995) ... 32

Schneider v. State of New Jersey, 308 U.S. 147 (1939) ... 23

Teague v. Regional Commissioner, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977 (1969) ... 17

Texas v. Johnson, 491 U.S. 397 (1989) ... 21

United Food & Commercial Workers Union v. Southwest Ohio Regional Transit Authority, 163 F.3d 341 (6th Cir. 1998) ... 31

United States v. Arch Trading Co., 987 F 2d 1087 (4th Cir. 1993) ... 23

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

United States v. Local 560 (I B.T.), 974 F.2d 315 (3d Cir. 1992) ... 9

United States v. Montoya, 45 F.3d 1286 (9th Cir. 1995) ... 30

United States v O'Brien, 391 U.S. 367 (1968) ... 3,21

In United States v. Piervinanzi, 23 F 3d 670 (2nd Cir. 1994) ... 32

*vii United States v Robel, 389 U S. 258 (1967) ... 24

United States v. Wilson, 614 F.2d 1224 (9th Cir 1980) ... 30

Veterans and Reservists for Peace in Vietnam v. Regional Commissioner, 459 F.2d 676 (3d Cir.), cert denied, 404 U.S. 933 (1972) ... 17

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc, 455 U.S 489 (1982) ... 26

Walsh v. Brady, 927 F.2d 1229 (D.C. Cir. 1991) ... 17

Zemel v. Rusk, 381 U.S. 1 (1965) ... 16,17

STATUTES:

Anti-Terrorism and Effective Death Penalty Act of 1996 ... passim

Section 301(a)(7), 110 Stat. 1247 ... 13

18 U.S.C. § 2331 ... 18,19,20

18 U.S.C. § 2339A ... 2,35

18 U.S.C. § 2339A(b) ... 29

18 U.S.C. § 2339B ... 20,34

18 U.S.C. § 2339B(a) ... 29

*1 INTRODUCTION

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) gives federal government officials unprecedented power to criminalize political associational activity with designated groups of the Secretary of State's choosing It prohibits U S citizens from supporting such designated groups, without regard to whether their support has any connection to terrorist activity. This law makes it a crime for a Quaker to send a book on Gandhi's philosophy of non-violence to a leader of a terrorist group in an effort to persuade him to forego the use of force, even if the Quaker can prove that the book was intended to counter terrorism and had that effect. And the law defines "material support" so broadly that it encompasses pure political speech, such as writing an op-ed on behalf of a proscribed group, or representing the group in a legal or lobbying challenge to its designation. All of the plaintiffs in this action are opposed to the use of terrorism. They seek to support only the lawful, nonviolent activities of two designated groups, and they challenge the material support law only insofar as it bars their intended support

Were a California statute to give the state attorney general sweeping power to criminalize all donations to selectively disfavored political groups, without regard to the individual's intent in making the donation, the law would be *2 immediately invalidated for selectively imposing guilt by association. Upholding this principle with respect to a federal law regulating association with foreign terrorist organizations, particularly in the wake of September 11, is not easy But it is what the Constitution requires. As the Cold War era taught us, there is no exception in the First Amendment for political associations with foreign organizations that use violence

Prohibiting guilt by association here will not undermine the fight against terrorism. A decision enjoining the government from penalizing support for lawful, nonviolent activity -- all that plaintiffs seek here -- would leave the government free to penalize all material support of terrorist activity. In fact, a separate federal law. not challenged here, already prohibits such conduct 1 8 U.S.C. § 2339A.

I. In our opening brief, we argued that the "material support" provisions of AEDPA are invalid as applied to plaintiffs' intended activities under a long line of Supreme Court decisions holding that association cannot be penalized absent an individualized showing of specific intent to further illegal ends, and holding that *3 monetary contributions are protected under the First Amendment right of expression and association. HLP Br. at 15-20. [FN1]

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

The government presents five arguments in defense of the challenged statute: (1) the prior appellate panel has resolved this issue against plaintiffs, and its decision is binding here, (2) the government may prohibit support of wholly lawful activities of proscribed groups because support is fungible: (3) because the government may incidentally burden speech and association by barring travel and trade with designated foreign countries, it may also directly criminalize associational support to foreign political groups; (4) AEDPA is a content-neutral regulation of conduct, and therefore need only satisfy the intermediate scrutiny test set forth in United States v. O'Brien, 391 U.S. 367 (1968), rather than strict scrutiny, and (5) the statute's broad delegation of unreviewable licensing authority over speech and association is permissible because AEDPA implicates foreign affairs.

None of these propositions withstands scrutiny. First, as the government concedes when it turns to its own cross-appeal, the prior panel's decision is not law of the case because it arose in review of a preliminary injunction, and *4 therefore applied a deferential standard of review. The government argues on its cross-appeal that the prior panel's invalidation of the "personnel" and "training"' prohibitions in AEDPA's broad definition of "material support" is not binding for precisely this reason, but simultaneously asserts that the aspect of the panel's decision that it likes is binding. The government cannot have it both ways. See Point I.A, infra

Second, the fact that money is fungible does not give the government license to impose guilt by association by selectively prohibiting material support to disfavored groups. The government's "freeing up" argument both proves too much and is undermined by AEDPA's own terms. If the First Amendment guarantees only the right to join groups, but not the right to provide them with any form of material support, it is a meaningless formality, as groups literally cannot exist without the material support -- whether through dues, donations, or volunteer services -- of those associated with them. And the government's claim that it is "necessary" to bar all support to such groups is belied by the statute itself, which allows unlimited donations of medicine and religious articles, even though such donations would have the same "freeing up" effect as the lawful support plaintiffs seek to provide. See Point I.B, infra.

*5 Third, barring trade with a foreign nation, with the incidental effect of burdening association, is constitutionally distinct from directly criminalizing associational support with specified political groups. The former act does not directly target political association, while the latter does. For that reason, the Supreme Court has repeatedly insisted upon the very distinction that the government seeks to elide, upholding a ban on travel to foreign countries while striking down bans on travel by members of disfavored political groups. See Point I.C, infra

Fourth, AEDPA is in no sense content-neutral. It does not prohibit "material support" across the board in a neutral fashion, but selectively prohibits it only when directed to disfavored political groups. No one would characterize a law selectively prohibiting donations to the Communist and Socialist Parties as content-neutral; this law is indistinguishable in its selective imposition of criminal prohibitions on disfavored groups. And AEDPA also discriminates on the basis of the content of aid, permitting support of religious or medical content, but forbidding all other aid. A law expressly favoring religious over secular aid cannot seriously be defended as content-neutral. As such, the law is subject to strict, not intermediate, scrutiny. See Point I.D, infra

*6 Fifth, the foreign affairs setting does not save this statute from a challenge to its unbridled licensing power. Defendants point to the need for greater flexibility in foreign affairs generally, but cite no case holding that government may ignore the requirements of the First and Fifth Amendments when regulating speech or association with foreign groups. Given the broad scope of speech and association that crosses national borders and might implicate foreign affairs in the era of globalization, acceptance of the government's view would authorize sweeping government regulation of core First Amendment activity See Point I.E, infra.

II. The government's cross-appeal is without merit. The district court properly ruled, as did the prior panel, that the statutory prohibitions on "training" and "personnel" are unconstitutionally vague, and therefore enjoined their enforcement against plaintiffs' intended activities, which include training two designated groups in human rights advocacy and peacemaking, and advocating for the rights of the Kurds in Turkey and the Tamils in Sri Lanka. "Training" could encompass everything from advice on how to present a human rights claim to the sponsorship of a symposium on the rights of minority populations. And "personnel" could include literally any personal service undertaken in support of a group, from distributing its literature to writing an op-ed on its behalf As a panel *7 of this Court reasoned in upholding the district court's preliminary injunction, the government's proffered narrowing "constructions" would require rewriting the statute, something only Congress can do, and in any event would not cure the statute's vagueness or overbreadth. See Point II, infra.

ARGUMENT

I. THE STATUTE IS UNCONSTITUTIONAL AS APPLIED TO PLAINTIFFS' SUPPORT OF LAWFUL, NONVIOLENT ACTIVITIES OF DESIGNATED GROUPS

Plaintiffs seek to support only the lawful, nonviolent activities of two organizations that the government has designated as terrorist - the Kurdistan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (LTTE). Thus, as the government concedes, this is not a case about providing "weapons, lethal substances, false documentation or identification, or explosives to a foreign terrorist organization" Govt Br. at 30. Such assistance can and should be prohibited without contravening the First Amendment. But the material support statute goes much further, penalizing even the support of concededly nonviolent and lawful activities, without any showing that the support was intended to further, or in fact furthered, any illegal conduct.

*8 A. The Prior Panel's Decision Is Not Binding, Because it Arose on Review of a Preliminary Injunction

The government contends that the prior panel's decision affirming the district court's preliminary injunction ruling is binding on this Court. Govt Br at 32- 34. But as demonstrated in our opening brief, the law of the case doctrine does not apply to preliminary injunction rulings, because they rest on a different substantive standard, and a different standard of review, from final orders HLP Br. at 4, 11-12; Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830, 832 n.3 (9th Cir. 1985), rev'd on other grounds, 475 U.S. 608 (1986); Angoon v. Hodel, 803 F.2d 1016, 1024 n.4 (9th Cir. 1986). A preliminary injunction ruling turns on likelihood of success and irreparable harm, and is reviewed under a deferential abuse of discretion standard. A permanent injunction ruling, by contrast, requires a ruling on the merits, which is then reviewed de novo. Accordingly, the prior panel's ruling might govern a subsequent preliminary injunction appeal, but does not control here. [FN2]

FN2. This rule is not limited to the 9th Circuit, but is uniformly applied in the federal appellate courts See Council of Alternative Political Parties v Hooks, 170 F.3d 64, 70 (3d Cir. 1999) (quoting United States v. Local 560 (I.B T), 974 F.2d 315, 330 (3d Cir. 1992)) (law of case doctrine does not apply to rulings on preliminary relief), Berrigan v. Sigler, 499 F 2d 514, 5 18 (D.C. Cir. 1974) (citing cases from the D.C.,

7th, 8th, and 9th Circuits to the same effect). Hilao v. Estate of Marcos, 103 F.3d 767, 771-72 (9th Cir 1996), cited by defendants, applies an exception to this general rule, namely that jurisdictional claims decided at the preliminary stage are binding at later stages because, unlike decisions on the merits, they are not "preliminary in nature."' See United States v. Local 560 (I.B T.), 974 F 2d at 329-30 (explaining that "[u]nlike merits questions, on which there is a different standard of proof in he preliminary phase and the permanent phase, the procedural [jurisdictional] questions are the same in both phases"). The issues presented on this appeal, however, all go to the merits, and therefore the law of the case doctrine does not apply

*9 The government concedes as much when it turns to its cross-appeal There it argues that "the Court applied a 'deferential standard of review' because of the interlocutory nature of the appeal," and that therefore the panel's prior decision is not controlling. Govt Br at 51, quoting 205 F.3d at 1138 But the government cannot have it both ways. The plaintiffs' appeal was just as interlocutory as the defendants' cross-appeal.

In addition, the government is simply wrong when it claims that there have been no intervening decisions conflicting with the prior panel's decision rejecting plaintiffs' "guilt by association" claim. As demonstrated in our opening brief, the Supreme Court's decision in Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000), is directly at odds with the panel's treatment of the material support statute as triggering only intermediate scrutiny. The Supreme Court in Nixon rejected the government's argument that only intermediate scrutiny should apply to regulation of monetary contributions. See HLP Br. at 22-23. A clearer instance of a contrary subsequent decision would be difficult to conjure.

*10 In addition, two subsequent decisions of this Court undermine the panel's determination that the constitutional prohibition on "guilt by association" is inapplicable to statutes penalizing "material support." McCoy v. Stewart, 282 F.3d 626 (9th Cir. 2002), expressly recognized a guilt by association claim that the prior panel's reasoning would dismiss. McCoy barred prosecution of an individual for providing a gang with expert advice -- a form of "material support" under AEDPA - about two forms of illegal gang conduct. Because the Court found that McCoy's advice was protected, it held that penalizing him for offering it to a gang would be "dangerously close to a finding of guilt by association." 282 F.3d at 633. Yet under the prior panel's reasoning, McCoy could assert no "guilt by association" claim, because his provision of "expert advice and assistance" would constitute "material support" not protected by the right of association.

And notwithstanding defendants' protestations. Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), specifically addressed the pro-life defendants' claim that the jury charge imposed guilt by association in violation of NAACP v. Claiborne Hardware, 458 U.S. 886 (1982). The Court rejected that claim precisely because the charge required specific intent.

the jury was instructed that a person does not become a conspirator merely by associating with one or more persons who are conspirators; *11 rather, one becomes a member of a conspiracy by willfully participating in an unlawful plan with the intent to advance or further some aspect or purpose of [the unlawful plan]

290 F 3d at 1081 (emphasis added). This treatment is in sharp contrast with the prior panel's reasoning, under which the jury could have held liable all donors to the pro-life group without any evidence of their intent to further illegal activity

Thus, the prior panel's ruling is not binding here, both because it arose from an interlocutory appeal applying a deferential standard of review, and because intervening decisions have undermined its reasoning.

B. The Fact That Money Is Fungible Does Not Permit Imposing Guilt by Association By Selectively Penalizing Support of Disfavored Groups

As illustrated in our opening brief, the Supreme Court has consistently held that association with groups engaged in illegal conduct may not be penalized absent a showing of specific intent to further unlawful ends. HLP Br. at 16-20 The government argues, and the prior panel reasoned, that these cases are inapposite because they involved association rather than material support, and a comprehensive ban on all support is necessary because support is fungible. The government contends that support given for a lawful purpose may be misused for an unlawful purpose, may free up other resources for unlawful uses, and may give *12 the groups "an air of legitimacy and assist[] in their ability to raise more funds." Govt Br. at 26, 42

This argument proves too much, for it would for all practical purposes eliminate the right of association. No group can survive without the material support of those who associate with it. Yet on the government's view, it would be permissible to ban anyone from providing anything of value to any organization that might engage in an illegal activity at some point. The state could make it a crime to provide newspapers or social services to gang members, to pay dues to the Communist Party, or to make a donation to the Republican Party, on the ground that each of these organizations has engaged and may engage in the future in illegal activity. If the government were correct, every anti-Communist law struck down by the Supreme Court for imposing guilt by association could have simply been rewritten to penalize dues payments, contributions, and volunteer services to the Party. Surely the Court's long struggle to ban the "guilt by association" tactics that characterized the Cold War was not waged merely to establish the hollow right to associate with groups that no one has the right to support in any material way

Second, the government's argument is belied by the statute itself, which expressly permits the unlimited provision of material support to designated *13 terrorist organizations, as long as it is delivered in the favored form of medicine and religious articles. If, as the government repeatedly asserts, "any" provision of material support to such groups has the potential to free up resources for terrorist activities, these forms of material support would also be prohibited. Yet individuals and groups remain free to this day to donate millions of dollars worth of medicine, a resource that can easily be resold, to Al Qaeda. Moreover, the fact that the law expressly privileges religious support violates not only the First Amendment's prohibition on content discrimination, but also the Establishment Clause Allegheny County v. Greater Pittsburgh ACLU. 492 U.S. 573. 627 (1989) (O'Connor, J., concurring in part and concurring in the judgement) (government must be "neutral in matters of religion, rather than showing either favoritism or disapproval towards citizens based on their personal religious choices"'). [FN3]

FN3. The government contends that a trade embargo is not invalid simply because it allows some exceptions. Gov. Br. at 42.7 n.8. But that is because trade embargoes, which are designed to impose economic sanctions on

nations, need not be all or nothing. Here, by contrast, the government's justification for prohibiting support of lawful activities is precisely that a comprehensive ban is required. Moreover, here the government has not simply created some exceptions, but has done so on the basis of the content of the aid provided. See Point I.D, infra

The government relies heavily on a Congressional "finding" 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." *14 Section 301(a)(7), 110 Stat. 1247 But this is not a "finding" in any meaningful sense of the term. Congress's "finding" makes a categorical assertion about the thousands of organizations around the world that at one time or another have used or threatened to use violence, without offering a shred of evidence as to any specific group Indeed, a review of AEDPA's legislative history reveals that Congress heard not one word of testimony about even a single organization that would support such a finding. At most, various officials repeated the general mantra that "money is fungible." A Congressional "finding" that "domestic political parties that engage in illegal conduct are so tainted by their criminal conduct that any contribution facilitates that conduct" surely would not authorize imposing guilt by association on support of domestic groups. It should not have no greater effect here. This "finding" adds nothing to the government's argument. [FN4]

FN4. Presumably because Congress had no such evidence before it, the government submitted a declaration to the district court asserting, without citing a source, that the LTTE had misused charitable donations by certain groups in the past. SER 1-12. Significantly, the district court made no finding to that effect, for the government made no claim that all or even most humanitarian support to the LTTE, much less to all designatable groups, is used for illegal ends. Plaintiffs stated below that if the district court deemed the government's claims about the LTTE in this regard to be legally relevant, plaintiffs were prepared to dispute them. The district court evidently agreed with plaintiffs that they are immaterial, as it made no findings in this regard.

*15 Finally, the government implies that there is a distinction between association with domestic and foreign organizations, based apparently on the ability of the government to monitor their books. Gov. Br. at 34-39. But that argument cannot explain the many cases applying the freedom of association principle to the Communist Party, a foreign-dominated organization whose books were never open to the government Moreover, the government's freeing up argument would apply equally to domestic organizations with fully open books. And AEDPA criminalizes support even if an individual can prove that his support never furthered a single act of violence.

C. Barring Travel to or Trade with a Foreign Nation Does Not Raise the Same First Amendment Concern That Targeting Association with Designated Political Organizations Does

The government argues that because it can constitutionally bar trade with a foreign nation, with the incidental effect of burdening speech and association, it may also directly bar support for a foreign political organization. Gov. Br. at 25, 35-39, The argument's critical premise -- highlighted by the government's repeated use of the term "foreign entity" -- is that there is no meaningful First Amendment distinction between official action directed at a nation and official action directed at a political group. This premise is demonstrably false.

*16 The Supreme Court and the lower courts have consistently recognized the distinction the government seeks to elide through the use of the term "foreign entities." The courts have upheld laws barring trade with or travel to a foreign nation, even where persons seek to engage in those activities for First Amendment purposes. See, e g, Regan v. Wald, 468 U.S. 222 (1984); Zemel v. Rusk, 381 U.S. 1 (1965): Freedom to Travel Campaign, 82 F.3d 1431, 1441 (9th Cir. 1996) But the Supreme Court has consistently struck down laws that ban travel based on association with foreign political organizations. Thus, in Regan v. Wald, the Court expressly distinguished two prior decisions, Aptheker v. Secretary of State, 378 U.S. 500 (1964), and Kent v. Dulles, 357 U.S. 116 (1958), in which it had invalidated decisions to deny passports to members of the Communist Party

As the Regan Court explained, the "Secretary of State in Zemel, as here, made no effort selectively to deny passports on the basis of political . . . affiliation, but simply imposed a general ban on travel to Cuba." Regan. 468 U.S at 241. In Regan and Zemel and the appellate court decisions that have followed them, the challenged laws were held not to implicate the "First Amendment rights of the sort that controlled in Kent and Aptheker" precisely because they were "across-the-board restriction[s]" not targeted at association with a political group. 468 U S at 241. By contrast, AEDPA does not impose an across-the-board restriction, but *17 selectively criminalizes "material support" only when done in association with particular political groups.

All of the cases the government relies upon involve laws targeted at nations, not political associations. [FN5] The government is correct that those cases did not require showings of specific intent, Gov. Br. at 35, but the government misunderstands the reason why this is so: the taws challenged simply were not targeted at political association as such. The government seeks to sweep political organizations with nations under its newly expanded category of "foreign entities," but foreign nations have a status quite distinct from political associations. As a nation, our government routinely engages in nation-to-nation diplomacy, and must often take action specific to certain nations that limits what U.S. citizens may do. Targeting a nation does not target political association as *18 such. But the same is not true of targeting political organizations. Because our Constitution protects the right of political association, the government cannot impose embargoes on support of political groups, even though it may do so with respect to nations. [FN6]

FN5. See, e g, Freedom to Travel Campaign, 82 F.3d at 1441 (upholding across-the-board restrictions on travel to Cuba); Walsh v. Brady, 927 F.2d 1229, 1234-35 (D.C. Cir. 1991) (same); Veterans and Reservists for Peace in Vietnam v. Regional Commissioner, 459 F.2d 676, 681 (3d Cir.), cert denied, 404 U.S. 933 (1972) (upholding restrictions on transactions with Vietnam on the ground that they did not "directly regulate[] speech or expression arguably protected by the First Amendment," but imposed a general ban on all transactions); Teague v. Regional Commissioner, 404 F.2d 441, 445 (2d Cir. 1968), cert denied, 394 U.S. 977 (1969) (upholding foreign asset control regulations as applied to publications from North Vietnam and China on the ground that the restrictions applied across-the-board, and therefore "[t]he restriction of

first amendment freedoms is only incidental to the proper general purpose of the regulations").

FN6. Palestine Information Office v. Shultz, 853 F.2d 932 (D.C. Cir. 1988), which upheld the State Department's closing of the Palestine Liberation Organization's foreign mission, is not to the contrary. The law challenged there, the Foreign Missions Act, governed nation-to-nation diplomacy. While the PLO was not a nation as such, the State Department's actions against it were taken under its authority to act toward nations; it simply refused to recognize its mission, just as it may do with nations. 853 F.2d at 936 The court upheld that action only upon finding that closing the mission did not restrict in any way the rights of citizens to continue to "advocat[e] the Palestinian cause" or to associate with the PLO or others. 853 F 2d at 939-41 AEDPA, by contrast, directly and categorically criminalizes associational support of the designated political groups

The government's contention that Boim v. Quranic Literacy Institute, 291 F.3d 1000 (7th Cir. 2002), supports its view that the government is free to penalize all support to a foreign terrorist organization is off the mark. In fact, Boim supports plaintiffs. Boim is a civil suit under 18 U.S.C. § 2331 et seq, seeking damages from organizations that allegedly made contributions to Hamas. The court in Boim held that the complaint survived defendants' motion to dismiss on "guilt by association" grounds only because plaintiffs alleged that defendants had contributed to Hamas with intent to further Hamas's illegal, terrorist ends. 291 F.3d at 1023-24 (noting that plaintiffs alleged that defendants "supplied money to *19 Hamas to fund terrorist operations" "engaged in fund-raising and money laundering in support of terrorist activities," and "intended to help Hamas accomplish those illegal goals [of terrorism] when they contributed money to the organization.") (emphasis added).

Echoing the very arguments made by plaintiffs here, the Boim court expressly rejected the plaintiffs' theory that they could establish liability under 18 U.S.C. § 2331 merely by showing that defendants had given money to Hamas:

To say that funding simpliciter constitutes an act of terrorism is to give the statute an almost unlimited reach. Any act which turns out to facilitate terrorism, however remote that act may be from actual violence and regardless of the actor's intent, could be construed to 'involve' terrorism. Without also requiring the plaintiffs to show knowledge and intent to further the payee's violent criminal acts, such a broad definition might also lead to constitutional infirmities by punishing mere association with groups that engage in terrorism.

291 F.3d at 1011 The court rejected defendants' First Amendment "guilt by association" challenge because in its view the statute required proof of "knowing and intentional support of illegal activities," id. at 1025, and not just "contributing money for humanitarian efforts." Id at 1024. But AEDPA does precisely the opposite, penalizing humanitarian support without any requirement of intent to further illegal activities.

Defendants disingenuously suggest that Boim upheld the "material support" statute at issue here Govt. Br. at 37-38. But the Boim court expressly stated that *20 "the constitutionality of section 2339B [the criminal material support statute] is not before us" 291 F 3d at 1025. The court was interpreting and applying 18 U.S.C. § 2331, a separate civil statute, and it deemed the "material support"' statute relevant "only to the extent that it helps define what conduct Congress intended to include in its definition of 'international terrorism."' Id Because the court had already ruled that under section 2331, "funding, simpliciter, of a foreign terrorist organization is not sufficient to constitute an act of terrorism," 291 F.3d at 1028, it found that looking to the "material support" statute as a guide to what acts might meet the definition of "international terrorism," and not as a basis for liability standing alone, did not present a constitutional problem. Here, by contrast, there is no statutory overlay requiring proof of intent to further illegal activities, and liability is expressly based on material support, simpliciter, the very theory that the Boim court held would be unconstitutional.

D. AEDPA Is Not Subject to Intermediate O'Brien Scrutiny, Because It Is Content-Based

The government argues, and the district court and the prior panel agreed, that the material support law need only satisfy the intermediate scrutiny reserved for content-neutral laws of general applicability that incidentally burden First Amendment rights. Govt. Br. at 41-44; ER 43, 83, Humanitarian Law Project v Reno, 205 F.3d 1130, 1135 (9th Cir. 2000), cert denied sub nom *21Humanitarian Law Project v. Ashcroft, 532 U.S. 904 (2001). This argument fails because it seeks to apply the standard for content-neutral laws not targeted at speech or association to a content-based law directly targeted at association. The intermediate standard of review set forth in United States v. O'Brien, 391 U.S. 367 (1968), applies only to content-neutral laws of general applicability not targeted at speech or association, such as a law barring travel to Cuba or destruction of draft cards It does not apply to content-based laws. Texas v. Johnson, 491 U.S. 397, 407-10 (1989) (distinguishing O'Brien).

AEDPA is content-based in two fundamental respects. First, it does not prohibit conduct across-the-board, but selectively prohibits conduct only when done in association with specific disfavored political groups. And second, it does not neutrally prohibit all content of material support, but impermissibly privileges religious and medical support over the humanitarian, legal, and political support that plaintiffs would like to provide. Just as a ban on picketing that permits labor picketing is impermissibly content-based, Police Dept of Chicago v. Mosley, 408 U.S. 92 (1972), so too a ban on aid that permits religious and medical aid is content-based.

No one could plausibly describe a law barring campaign contributions only to the Communist and Socialist Parties as content-neutral. Nor could one *22 plausibly defend as content-neutral a law that banned political donations while permitting religious donations. Yet AEDPA is indistinguishable from these laws.

The government argues that AEDPA should be treated as content-neutral because persons remain free to "speak and advocate as they wish," and to associate with foreign terrorist organizations, as long as they do not provide any material support in doing so. Gov. Br. at 42. But a law selectively banning campaign contributions to the Democratic Party would not be treated as content-neutral simply because individuals could still speak out for Democratic ideas and attend Party meetings "One is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State of New Jersey, 308 U.S. 147, 163 (1939).

AEDPA does not neutrally prohibit any form of conduct across the board Rather its criminal prohibitions are triggered only when conduct is undertaken in association with specific disfavored political groups. As such, it is directly targeted at association, is content-based, and must satisfy' traditional strict scrutiny.

E. The Foreign Affairs Setting Does Not Justify Vague and Overbroad Licensing of First Amendment Activity

The government does not dispute the contention advanced in our opening brief that licensing a government official to blacklist domestic political organizations and criminalize support of their lawful activities would violate the *23 First Amendment HLP Br. at 32. It argues, however, that what would be plainly unconstitutional in a domestic setting is constitutional in the foreign affairs setting, and cites cases noting that broad delegations are often permissible in foreign affairs. Gov Br. at 48-50. But the cases it cites involve the regulation of nations, not the direct targeting of political association. See, e g, United States v. Arch Trading Co., 987 F.2d 1087, 1092-93 (4th Cir. 1993) (upholding ban on trade with Iraq). By contrast, in the Communist Party cases, which did involve direct regulation of association in an area directly implicating foreign affairs, the Court applied the same stringent standard of scrutiny that it applied to cases involving association with domestic organizations. Compare Healy v. James. 408 U.S. 169 (1972) (association with Students for a Democratic Society) with United States v. Rebel, 389 U.S. 258 (1967) (association with Communist Party). As this Court has held, "there is no 'sliding scale' of First Amendment protection under which the degree of scrutiny fluctuates in accordance with the degree to which the regulation touches on foreign affairs." Bullfrog Films. Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988)

There are undoubtedly situations in which First Amendment rights are outweighed by national security concerns. Laws narrowly tailored and necessary to respond to a specific and demonstrated threat will survive strict scrutiny. But *24 AEDPA is the opposite of narrowly tailored. It broadly permits the criminalization of wholly innocent support of wholly lawful activities, upon a mere finding that some of the group's other activities threaten only our "economic interests."

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

The district court correctly concluded, as did the prior panel, that AEDPA's prohibitions on the provision of "training" and "personnel" are unconstitutionally vague. ER 28-30, 111-14. The "training" and "personnel" provisions are also substantially overbroad, for they proscribe a substantial amount of wholly innocent protected First Amendment activity. Indeed, the terms "training" and "personnel" are so open-ended that they might reasonably encompass virtually any human resources offered to a designated organization, from the distribution of literature, to the writing of a letter to a member of Congress, to training in human rights advocacy, medical services, or peacemaking The government concedes that these terms proscribe pure speech even under the narrowing constructions that it proffers (and that were rejected by the district court and the prior panel). Govt. Br. at 55-56. Because they proscribe a substantial amount of protected speech, and because they fail to give adequate notice of their scope in an area of First *25 Amendment concern, the district court's injunction barring enforcement of the prohibitions on "training" or "personnel" against plaintiffs should be affirmed.

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

The vagueness doctrine serves three important values:

. . . First, ... [v]ague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.... Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked."

Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (footnotes and internal citations omitted) The degree of precision and clarity required by the vagueness doctrine increases with the gravity of the penalty imposed and the importance of the rights at stake. E g. Village of Hoffman Estates v. Flipside, Hoffman Estates. Inc, 455 U.S. 489, 498-99 (1982), Information Providers' Coalition v. FCC, 928 F.2d 866, 874 (9th Cir. 1991). AEDPA must be subjected to the most stringent vagueness scrutiny both because it imposes criminal sanctions and because it threatens to chill speech and associational rights. Reno v. American Civil Liberties Union, 521 U.S. 844, 871-72 (1997); Baggett v. Bullitt, 377 U.S. 360, 372 (1964); *26NAACP v. Button, 371 U.S. 415, 432-33 (1963); Kolender v Lawson, 461 U.S. 352, 357 (1983); United States v. Harriss, 347 U.S. 612. 617-18 (1954); Lanzetta v. New Jersey. 306 U S 451, 453 (1939)

1. Personnel

The prohibition on "personnel" is virtually unlimited, and conceivably covers any provision of personal services whatsoever, including a large number of core political activities. In this case alone, it threatens to criminalize the Humanitarian Law Project ("HLP") and Judge Ralph Fertig for advocating on the PKK's behalf before the United Nations Commission on Human Rights and the United States Congress, for writing and distributing publications supportive of the PKK, and for working with PKK members at peace conferences and other meetings to further peace and justice for the Kurds.

The government does not dispute that the above-described activities are protected by the First Amendment. Instead, it offers a narrowing construction of the term "personnel" in an attempt to avoid criminalizing this clearly protected conduct. It maintains that "personnel" should be confined to "employees or others working under the direction or control of a specific entity." Gov. Br at 28 And it notes that it has adopted that interpretation in its United States Attorneys' Manual. Id

*27 But as the district court and the prior panel both found, this "construction" would require rewriting the statute, something courts may not do. ER 112, 48. As the prior panel explained, "[w]hile [the courts] construe a statute in such a way as to avoid constitutional questions, ... [the courts] are not authorized to rewrite the law so it will pass constitutional muster." ER 48 (citations omitted). [FN7]

FN7. In any event, the government's interpretation of the term "personnel" as work performed "under the direction or control of a specific entity" would not save the statute. Activities such as writing, speaking, and distributing literature are still protected under the First Amendment even

when done under the direction or control of a foreign organization. The constitutional limits on libel actions, for example, apply equally to the reporter who writes an allegedly libelous story for her newspaper, and to the newspaper that publishes it.

Moreover, the government's "construction" flatly contradicts the asserted rationale for the statute -- that all support must be prohibited because any support may free up resources for terrorist activity. Action taken on a group's behalf but not under its control would have the same freeing up effects. As the prior panel explained:

Someone who advocates the cause of the PKK could be seen as supplying them with personnel; it even fits within the government's rubric of freeing up resources, since having an independent advocate frees up members to engage in terrorist activities instead of advocacy. But advocacy is pure speech protected by the First Amendment.

ER 48.

*28 The government only exacerbates the statute's vagueness when it maintains, relying on a passage unearthed from an obscure House Report, that the activities of "think[ing], speak[ing], or opin[ing] in concert with, or on behalf of," a designated organization should not be construed as the provision of "personnel" Gov. Br. at 55 and n.10 (quoting H.R. Report No. 104-383 (1995), at 44) As this Court has warned, however, legislative history is a dubious basis for defeating a vagueness challenge, because people cannot be expected to read legislative history. Fleuti v. Rosenberg, 302 F 2d 652, 655 n.5 (9th Cir. 1962), vacated on other grounds, 374 U.S. 449 (1963). That problem is exacerbated here by the fact that this legislative history is not even drawn from AEDPA, but from a predecessor statute; AEDPA's legislative history contains no such limitation. [FN8] Moreover, even if this gloss were accepted, it would still require ordinary people to guess as to whether their speaking for a foreign organization constitutes the permissible act of speaking "on its behalf," or the impermissible act of speaking under its "direction and control." Because guessing wrong could entail a fifteen-year prison sentence, most people would be chilled from engaging in any speech *29 on a designated group's behalf, as were plaintiffs here That is precisely the danger that the vagueness doctrine is designed to guard against.

FN8. H.R. Rep. No. 104-383 was issued by the House Judiciary Committee on December 5, 1995, and accompanied House bill, H.R. 1710, entitled the Comprehensive Antiterrorism Act of 1995. Notably, neither this report nor this language are referenced in the legislative history notes for 18 U.S.C. §§ 2339A(b) and 2339B(a) in the U S. Code Service or the U S. Code Annotated

In the district court, the government argued that its publication of its proffered construction in the United States Attorneys' Manual (USAM) -- after the district court and the prior panel had rejected it -- should somehow save the statute. But as the district court properly held, the USAM does not affect the vagueness of the statute in any way. The USAM is by its own terms binding on no one. [FN9] As the district court stated, "[b]ecause neither courts nor United States Attorneys are bound by these narrower definitions, the statutory language remains impermissibly vague." ER 30. One of the central problems with vague statutes is that they fail to provide citizens with adequate notice. Grayned v. City of Rockford, 408 U.S. at 108. That problem is not resolved by an internal Justice Department guideline that is not referred to in AEDPA, the U.S. Code, the Code of Federal Regulations, or even the Federal Register. Just as legislative history cannot save a statute that is facially vague, Fleuti. 302 F.2d at 655 n.5, so too a chapter in the USAM cannot save a vague statute.

FN9. As the district court pointed out, this Court has long held that the USAM "creates no enforceable rights" and does not have the force or effect of law. ER 27; United States v. Montoya, 45 F.3d 1286, 1295 (9th Cir. 1995); United States v. Wilson, 614 F 2d 1224, 1227 (9th Cir. 1980).

*30 Moreover, were a citizen somehow to stumble upon the USAM, she would immediately confront its introductory disclaimer, telling her that it "is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable by any party in any matter civil or criminal." USAM § 1-1.100. By its own terms, the manual is intended for Justice Department use only, which may be why defendants are unable to cite a single case in which courts have relied upon a USAM guideline to save a statute from vagueness. Since it is not enforceable by citizens or binding on U.S. Attorneys or courts, the USAM is legally irrelevant. "[T]he vagueness 'doctrine requires that the limits the [government] claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well established practice."' United Food & Commercial Workers Union v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 359 (6th Cir. 1998) (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 (1988)). The USAM does not qualify as a source courts may use to narrow an otherwise vague statute.

Indeed, the government has previously successfully argued that the USAM cannot be used to narrow a criminal statute. In United States v. Piervinanzi, 23 F.3d 670 (2nd Cir. 1994), the defendant asserted that a USAM guideline supported a narrower reading of a criminal statute. Id. at 682. The court refused to give the *31 USAM's guideline any weight, noting both that the guidelines provide criminal defendants no substantive rights, and that "these guidelines reflect executive branch policy judgments about the desirability of certain types of prosecutions and are not guided solely by the language of the statute." Id. at 683. The government cannot have it both ways, if the USAM has no force of law when criminal defendants seek to invoke it, as the government has consistently and successfully argued, it has no force of law here, either. [FN10]

FN10. Defendants properly conceded below that "the Department's administrative interpretation of 'personnel' and 'training' in the USAM is not entitled to deference by the courts." Defendants' Mem in Support of Motion to Dismiss at 13. While the Supreme Court has held that a guideline of an agency charged with administering a statute is "entitled to some deference." Reno v. Koray, 515 U.S. 50, 61 (1995), defendants are not such an agency with respect to criminal statutes. As Justice Scalia has said, rejecting Chevron deference in the criminal setting, "[t]he law in question, a criminal statute, is not administered by any agency but by the courts," and "we have never thought that the interpretation of those charged with prosecuting criminal statute is entitled to deference." Crandon v. United States. 494 U.S. 152, 177 (1990) (Scalia, J.,

concurring in judgment). The district court and the prior panel properly declined to defer to defendants' interpretation of "personnel" and "training" in ruling on the preliminary injunction; the fact that defendants have now published the same interpretation in an unenforceable internal manual ought not change that.

2. Training

The district court also properly held that the term "training" is unconstitutionally vague Here, the only "construction" the government offers is that "training"' should "cover imparting a skill, rather than just general *32 knowledge." Govt. Br. at 29. But as the district court has pointed out, defendants "cannot point to any provision within the AEDPA which supports their limitation." ER 113. And as the prior panel pointed out when defendants proffered the same construction on the prior appeal, it would not save the statute even if accepted: "Presumably, this definition would encompass teaching international law to members of designated organizations. The result would be different if the term 'training' were qualified to include only military training or training in terrorist activities." ER 49. Defendants pointedly did not adopt the prior panel's suggestion, but instead read the provision to bar all training in specific skills, no matter how far removed from terrorism. Under their reading, providing training in human rights advocacy or cooking tofu would be equally forbidden.

Moreover, the distinction between imparting specific skills and general information is itself unconstitutionally vague. Before reading the USAM one might think that knowing how to drive a car would fall under "general knowledge," but apparently even that constitutes a proscribed skill. USAM § 9- 91.100 at 4. As law school -- and indeed all education -- illustrates, there is no clear demarcation between knowledge and skills; every class simultaneously *33 provides knowledge and seeks to hone students' critical, analytical, and persuasive skills

In a remarkable understatement, the government argues that "[s]imply 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." Govt Br. at 29. But this is not a case in which there are a few isolated constitutionally questionable applications; virtually every example of training one can imagine raises such concerns, apart from those rare trainings specifically intended to further a group's illegal ends. And while it is true that 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," Govt. Br. at 59, it would by no means leave those activities free from prosecution. Any training offered for the purpose of furthering terrorist activity is already criminally proscribed under Section 2339A. Where, as here, a statute's terms reach a substantial amount of constitutionally protected conduct, it may be invalidated on either vagueness or overbreadth grounds, "even *34 when it could conceivably have had some valid application." Kolender v Lawson, 461 U.S. at 358 n.8. [FN11]

FN11. The government argued below and on the prior appeal that AEDPA's scienter requirement mitigated the vagueness of its terms. It appears to have abandoned that argument on this appeal, and for good reason. Both the prior panel and the district court rejected it. ER 49 n.5; 114. "[A] scienter requirement cannot eliminate vagueness ... if it is satisfied by an 'intent' to do something that is in itself ambiguous." Nova Records. Inc., v. Sendak, 706 F.2d 782, 789 (7th Cir 1983).

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

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

*35 CONCLUSION

For the foregoing reasons, the decision of the district court should be reversed in part and affirmed in part. The district court properly enjoined enforcement of the "personnel" and "training" provisions against plaintiffs' intended activities, but erroneously granted summary judgment to defendants with respect to plaintiffs' claims that AEDPA imposes "guilt by association," impermissibly discriminates on the basis of content, and grants impermissibly broad discretion to license First Amendment activity. The case should therefore be remanded with instructions to issue a permanent injunction barring enforcement of AEDPA as applied to plaintiffs' intended support of the lawful, nonviolent activities of the PKK and the LTTE.