Opposition Brief — Humanitarian Law Project v. Ashcroft

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eme Court, U.S.

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Supreme Court of the Untted States

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JANET RENO, as Attorney General of the United States; UNITED STATES

DEPARTMENT OF JUSTICE; MADELEINE ALBRIGHT, as United States

Secretary of State; and UNITED STATES DEPARTMENT OF STATE,

Cross-Petitioners,

—\V—_—

HUMANITARIAN LAW PROJECT; RALPH FERTIG; ILANKAI THAMIL SANGAM;

TAMILS OF NORTHERN CALIFORNIA; TAMIL WELFARE AND HUMAN RIGHTS

COMMITTEE; FEDERATION OF TAMIL SANGAMS OF NORTH AMERICA; WORLD

TAMIL COORDINATING COMMITTEE; and NAGALINGAM JEYALINGAM,

Cross-Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION TO CONDITIONAL

CROSS-PETITION FOR A WRIT OF CERTIORARI

NANCY CHANG DaviD D. COLE

CENTER FOR CONSTITUTIONAL RIGHTS Counsel of Record

666 Broadway, 7th Floor c/o Georgetown University

New York, New York 10012 Law Center

(212) 614-6420 600 New Jersey Avenue NW

| Washington, DC 20001

(202) 662-9078

Attorneys for Cross-Respondents

(Counsel continued on inside cover)

PAUL HOFFMAN

SCHONBRUN, DE SIMONE, SEPLOw,

HARRIS AND HOFFMAN LLP

723 Ocean Front Walk

Venice, California 90291

(310) 396-0731

CAROL SOBEL

429 Santa Monica Boulevard, Suite 550

Santa Monica, California 90401

(310) 393-3055

VISUVANATHAN RUDRAKUMARAN

875 Avenue of the Americas

New York, New York 10001

(212) 290-2925

Attorneys for Cross-Respondents

QUESTION PRESENTED

Whether the Antiterrorism and Effective Death Penalty

Act of 1996 is void for vagueness under the First and Fifth

Amendments to the United States Constitution insofar as it

criminalizes the provision of “personnel” and “training” to the

lawful, nonviolent activities of Selectively designated foreign

organizations.

ii

PARTIES TO THE PROCEEDINGS

The following parties were plaintiffs in the district

court and cross-appellees in the court of appeals, and are

conditional cross-respondents in this Court: Humanitarian

Law Project; Ralph Fertig; Tankai Thamil Sangam; Tamils of

Northern California; Tamil Welfare and Human Rights

Committee; Federation of Tamil Sangams of North America;

World Tamil Coordinating Committee; and Nagalingam

Jeyalingam.

The following parties were defendants in the district

court and cross-appellants in the court of appeals, and are

conditional cross-petitioners in this Court: the Attorney

General of the United States, who was Janet Reno at the time

this petition was filed; the United States Department of

Justice; the United States Secretary of State, who was

Madeleine Albright at the time this petition was filed; and the

United States Department of State.

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TABLE OF CONTENTS

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PARTIES TO THE PROCEEDINGS .................. ii

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BRIEF IN OPPOSITION TO CONDITIONAL

CROSS-PETITION FOR A WRIT OF

UMN ka oc Orla es ey hele 1

OPINIONS BELOW ............ tnahewnsdsnendetvas ]

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CONSTITUTIONAL AND STATUTORY

PERE OG UR eS oe 3 is PES ty oe 1

PEM ENE 25500 en iA a 2

REASONS FOR DENYING THE WRIT ............... 6

MAT 5 4 ison ek dasa siencncuescl eee 11

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TABLE OF AUTHORITIES

FEDERAL CASES

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

Brown v. Chote, 411 U.S. 452 (1973) .............000.. 7

Does 1-5 v. Chandler, 83 F.3d 1150 (9" Cir. 1996) ... vee 7

Grayned v. City of Rockford, 408 U.S. 104 (1972) ........ 7

Houston v. Hill, 482 U.S. 451 (1987) .............005. 10

Humanitarian Law Project v. Reno,

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Humanitarian Law Project v. Reno,

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Humanitarian Law Project v. Reno,

DP PRUSS BETO Gk Ge SOD Kh cence cuenions

Palestine Info. Office v. Schultz, 853 F.2d 932

Reno v. American Civil Liberties Union, 521

She SOMES cand vccucvebsunshetaele siceus ates

Swain v. Pressley, 430 U.S. 372 (1977) ...... 2.2... 20 eee

FEDERAL STATUTES

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BRIEF IN OPPOSITION TO CONDITIONAL

CROSS-PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. la-16a) is

reported at 205 F.3d 1130. The opinion of the district court

(App. 17a- 84a) is reported at 9 F. Supp.2d 1176.' The district

court’s findings of fact and conclusions of law (App. 85a-

110a) are reported at 9 F. Supp.2d 1205.

JURISDICTION

The court of appeals entered its judgment on March 3,

2000. A petition for rehearing was denied on September 1,

2000. App. 11la-112a. A petition for a writ of certiorari in

Humanitarian Law Project v. Reno, No. 00-910, was placed

on this Court’s docket on December 4, 2000. This conditional

cross-petition in Reno v. Humanitarian Law Project, No. 00-

1077, was placed on this Court’s docket on January 4, 2001.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

| INVOLVED

The First and Fifth Amendments to the United States

Constitution, as well as _ relevant provisions of the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, in particular 18 U.S.C.

§2339B and 8 U.S.C. §1189, are reprinted at App. 113a-126a.

' References herein to “App.” are to the appendix to the petition for a writ

of certiorari in Humanitarian Law Project v. Reno, No. 00-910. References

to "Cross-Pet.” are to the Cross-Petition for a Writ of Certiorari.

STATEMENT

Cross-Respondents rely on the Statement in their

Petition for a Wnt of Certiorari in Humanitarian Law Project

v. Reno, No. 00-910, and supplement it with the following

statement of the facts and proceedings below that specifically

relate to the conditional cross-petition.

Under AEDPA, the provision of “material support or

resources” to any foreign organization that has been

designated by the Secretary of State as terrorist is a crime

punishable by up to 10 years of imprisonment. 8 U.S.C.

§2339B(a)(1); App. 115a. AEPDA broadly defines “material

support or resources” to include, without limitation, all

“personnel” and “training.”? 8 U.S.C. §2339A(b); App. 118a.

On June 8, 1998, the district court held that the

plaintiffs had demonstrated a likelihood of success on their

claim that AEDPA’s prohibitions against the provision of

“personnel” and “training” to designated organizations are

unconstitutionally vague. App. 79a-83a. The district court

concluded that these terms are “not ‘sufficiently clear so as to

allow persons of “ordinary intelligence a _ reasonable

opportunity to know what is prohibited.””” App. 79a (citations

omitted). In addition, the district court concluded that the

terms “appear to prohibit activity protected by the First

? The full definition of “material support or resources” in AEDPA

encompasses “currency or other financial securities, financial services,

lodging, training, safehouses, false documentation or identification,

communications equipment, facilities, weapons, lethal substances,

explosives, personnel, transportation, and other physical assets, except

medicine or religious materials.” 8 U.S.C. §2339A(b); App. 118a (emphasis

added).

3

Amendment — distributing literature and information and

training others to engage in advocacy.”° App. 82a.

The district court rejected the government’s proposal

that the term “personnel” be narrowly construed to include

only individuals working at the direction or control of a

designated organization, concluding that such a construction is

unsupported by any language in AEDPA. App. 80a. On the

same grounds, the district court rejected the government’s

proposal that the term “training” be narrowly construed to

include only training on such subjects as “how to use

weapons, build bombs, or raise funds.” App. 81a.

. As the district court noted, three of the plaintiffs had engaged in

activities protected by the First Amendment prior to the enactment of

AEDPA, and these plaintiffs were seeking a preliminary injunction barring

the government from prosecuting them for continuing to engage in these

activities. The Humanitarian Law Project (HLP) and Ralph Fertig, HLP’s

President, had “advocated for the {Kurdistan Workers Party (PKK)] before

the U[nited] N[ations] Commission on Human Rights, petitioned members

of Congress, and advocated for the freedom of four Turkish political

prisoners convicted of being PKK members or Supporters.” App. 80a. The

district court explained that “HLP and Judge Fertig would like to but are

afraid[, as a result of AEDPA’s criminalization of the provision of

‘personnel’ and ‘training’ to designated organizations,] to write and distribute

publications supportive of the PKK and work with PKK members at peace

conferences and other meetings toward the cause of peace and justice for the

Kurds.” App.80a-81a. Additionally, the World Tamil Coordinating

Committee was engaged in “distribut[ing] literature and informational

materials [of the Liberation Tigers of Tamil Eelam (LTTE)] throughout the

United States to advocate on behalf of the Sri Lankan Tamils’ human rights.”

App.8 la.

The remaining plaintiffs seek to support the entirely lawful and

peaceful humanitarian efforts of either the PKK or LTTE. App. 20a. None

of the plaintiffs seeks to support any terrorist activities or any unlawful

conduct. App. 20a-31a.

4

—_

The district court also rejected the government’s

argument that the vagueness of the terms “personnel” and

“training” is mitigated by AEDPA’s requirement that the

“personnel” and “training” be “knowingly” provided. The

district court observed that AEDPA’s scienter requirement

extends only to the knowing provision of “personnel” and

“training,” and fails to cure the lack of clarity as to what

constitutes “personnel” and “training.” App. 82a.

The district court found that plaintiffs had established

irreparable injury because AEDPA’s prohibitions against the

provision of “personnel” and “training” to designated

organizations infringed upon their First Amendment rights.

App. 83a at n.30. Having concluded that plaintiffs had

demonstrated a probability of success on the merits and

irreparable injury, the district court proceeded to issue a

preliminary injunction barring the government from enforcing

these prohibitions against plaintiffs and the members of the

organizational plaintiffs.* App. 83a at n. 31.

On March 3, 2000, the court of appeals unanimously

affirmed the preliminary injunction issued by the district

court. App. 13a-16a. The court of appeals agreed with the

district court’s legal analysis and “conclude([d] that the district

court did not abuse its discretion in issuing its limited

preliminary injunction.” App. 15a.

The court of appeals concluded that the term

“personnel”:

“ The district court denied plaintiffs’ request that the preliminary

injunction be nationwide in scope, commensurate with the Attorney

General’s nationwide authority over the enforcement of AEDPA. Instead,

the district court narrowly crafted a preliminary injunction that extended no

further than plaintiffs and their members. App. 83a at n. 31.

5

blurs the line between protected expression and

unprotected conduct. Someone who advocates

the cause of the PKK could be seen as

supplying them with personnel; it even fits

under 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.

App. 14a (citation omitted). Like the district court, the court

of appeals rejected the government’s request that it read into

the term “personnel” a “requirement that the activity

prohibited be performed ‘under the direction and control of a

foreign terrorist organization.” Jd. The court of appeals

explained that “we are not authorized to rewrite the law so it

will pass constitutional muster.” App. 14a-15a.

The court of appeals raised similar concerns with

respect to the term “training”:

Again, it is easy to imagine protected

expression that falls within the bounds of this

term. For example, a plaintiff who wishes to

instruct members of a designated group on how

to petition the United Nations to give aid to

their group could plausibly decide that such

protected expression falls within the scope of

the term “training.” The government insists

that the term is best understood to forbid the

imparting of skills to foreign terrorist

organizations through training. Yet

presumably, this definition would encompass

teaching international law to members of

designated organizations.

App. 15a.

Finally, the court of appeals, like the district court,

rejected the government’s argument that any vagueness

problems are cured by AEDPA’s scienter requirement. App.

15a at n.5. As the court of appeals explained, “the term

‘knowingly’ modifies the verb ‘provides,’ meaning that the

only scienter requirement ... is that the accused violator have

knowledge of the fact that he has provided something, not

knowledge of the fact that what is provided in fact constitutes

material support.” App. 15a-16a.

REASONS FOR DENYING THE WRIT

The conditional cross-petition should be denied. The

government has failed to identify a single decision from any

court, much less this Court or a court of appeals, that is in

conflict with the portions of the decisions below that form the

basis of the government’s conditional cross-petition. Both the

court of appeals and the district court correctly applied clearly

established and uncontroverted principles of constitutional

law. Their conclusions that AEDPA’s prohibitions on the

provision of “personnel” and “training” are unconstitutionally

vague, and that the government should be preliminarily

enjoined from prosecuting plaintiffs and the members of the

plaintiff organizations for violating these provisions, are

firmly grounded and raise neither new nor significant

questions of law.°

$s

The government’s argument that the court of appeals erred in

applying an abuse of discretion standard in reviewing the grant of the

preliminary injunction, Cross-Pet.6, is without basis. "[T]he grant or denial

of a preliminary injunction remains a matter for the trial court’s discretion,

which is exercised in conformity with historic federal equity practice." 11A

Wright & Miller, Federal Practice and Procedure §2947 (citations omitted).

It is for this reason that, "in reviewing such interlocutory relief, [the |

7

This Court has repeatedly held that criminal statutes

which threaten to chill speech and associational rights are void

for vagueness when they lack clarity and precision. See, e.g.,

Reno v. American Civil Liberties Union, 521 U.S. 844, 871-72

(1997); Grayned v. City of Rockford, 408 U.S. 104, 108

(1972). The courts below recognized that AEDPA’s

prohibitions on the provision of “personnel” and “training” to

designated organizations have the apparent effect of

criminalizing virtually all human activity on behalf of such

organizations, including a substantial amount of core political

speech and advocacy entitled to First Amendment protection.

App. 13a-15a, 81a-82a. In light of these First Amendment

concerns, the courts found AEDPA’s criminal prohibitions to

be unconstitutionally vague because they are not “‘sufficiently

clear so as to allow persons of “ordinary intelligence a

reasonable opportunity to know what is prohibited.”’” see

App. 13a-14a, 79a (citations omitted).

The vagueness of the challenged provision is

illustrated by the predicament in which several of the plaintiffs

found themselves after AEDPA’s enactment. Fearing

Criminal investigation and prosecution, HLP and Fertig

refrained from engaging in pure First Amendment activities in

which they had freely engaged prior to AEDPA. These

activities included political advocacy on behalf of the PKK

before such bodies as the United Nations Commission on

Human Rights and the United States Congress, writing and

distributing publications supportive of the PKK, and

supporting the PKK at peace conferences and other meetings

reviewing court} may only consider whether the issuance of the injunction

constituted an abuse of discretion." Brown v. Chote, 411 U.S. 452, 457

(1973). However, the court of appeals clearly recognized, by its citation to

Does 1-5 v. Chandler, 83 F.3d 1150 (9" Cir. 1996), that "issues of law

underlying the decision [to grant a preliminary injunction] are reviewed de

novo." Does 1-5, 83 F.3d at 1152 (citations omitted); App. 15a.

8

towards the cause of peace and justice for the Kurds. App.

20a-25a. All of these activities could potentially be construed

as providing “personnel” to the PKK, and could therefore

subject plaintiffs to up to 10 years in prison. Indeed, any

volunteer effort for a designated group could constitute the

provision of “personnel” — including pure advocacy — and any

assistance or educational activities could be treated as

“training.” ae

The government contends that the vagueness of the

term “personnel” can be cured by limiting it to “employees or

others working at the direction or control of a specific entity.”

Cross-Pet. 7. But, as the courts below unanimously

concluded, this construction lacks any support in the language

of AEPDA. As the Ninth Circuit explained, citing, inter alia,

this Court’s decision in Swain v. Pressley, 430 U.S. 372, 378-

79 n.11 (1977), “[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.” App. 14a (citations omitted).°

s Notably, the government’s interpretion 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 government misreads Palestine Info. Office v. Schultz, 853

F.2d 932 (D.C. Cir. 1988), as standing for the proposition that speech

conducted under the direction or control of a foreign terrorist organization

receives no, or limited, First Amendment protection. Cross-Pet. 8. That case

addressed only the government’s power to close a mission, and did not

involve any attempt to prohibit individuals from speaking on behalf of the

Palestinian Liberation Organization in the absence of a mission. The court

went to great pains to explain that the PIO and its staff:

are as free today as they were before [the issuance of a

9

In addition, the government’s proposed narrowing

construction is at odds with the purported rationale for

AEPDA’s prohibitions on the provision of material support to

designated organizations, namely that all support must be

prohibited because any support may free up a designated

organization’s resources for terrorist activities. Cross-Pet. 4

and 10. As the Ninth Circuit 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.

App. 14a.

The government does not even proffer a limiting

construction of “training.” Instead, it maintains that because

some forms of “training” -- such as “training of foreign

terrorists on how to use weapons, build bombs, evade

surveillance, or launder funds” (see Cross-Pet. 10) -- could be

State Department order pursuant to the Foreign Missions

Act barring the PIO from operating as a foreign mission in

the United States] to express whatever ideas they wish and

to associate with whichever individuals they wish. They

are not free, however, to set up an office that functions as

a foreign mission for the Palestinian Liberation

Organization when the State Department finds that the

national interest requires otherwise.

853 F.2d at 934.

10

constitutionally proscribed, AEPDA’s unlimited prohibition

on all “training” is not vague. This is a non sequitur. The fact

that a more clearly defined subset of activity may be

constitutionally prohibited does not excuse the drafting of a

vague and overbroad statute. On the contrary, the very fact

that the government can identify in a more clearly defined way

what should be prohibited simply illustrates that the vagueness

inherent in “training” could easily be avoided. The fact that

training in bomb-building is not protected does not justify the

criminalization of training in human rights advocacy,

peacemaking, kindergarten teaching, health services, or

daycare provision. The term "training" is impermissibly

vague in all its applications, because one simply cannot know

what types of “training” are permitted and what types are

proscribed.

Finally, AEDPA’s prohibitions on the provision of

“personnel” and “training” are unconstitutionally overbroad

because they sweep within their ambit a substantial amount of

political speech, advocacy, and association. See Houston v.

Hill, 482 U.S. 451 (1987); Broadrick v. Oklahoma, 413 U.S.

601 (1973). These terms criminalize virtually the entire range

of associational human activity, much of which is indisputably

protected by the First Amendment. Accordingly, the decision

below is independently sustainable on the ground that the

invalidated terms are not only vague, but substantially

overbroad.

11

CONCLUSION

For all of the above reasons, the conditional cross-

petition for a writ of certiorari should be denied.

Dated: New York, New York

February 1, 2001

Respectfully submitted,

DAVID D. COLE

Counsel of Record for Cross-Respondents

c/o Georgetown University Law Center

600 New Jersey Ave. NW

Washington, DC 20001

(202) 662-9078

NANCY CHANG

CENTER FOR CONSTITUTIONAL

RIGHTS

666 Broadway, 7th floor

New York, NY 10012

(212) 614-6420

PAUL HOFFMAN

Schonbrun, De Simone, Seplow, Harris

and Hoffman LLP

723 Ocean Front Walk

Venice, California 90291

(310) 396-0731

CAROL SOBEL

429 Santa Monica Boulevard, Suite 550

Santa Monica, California 90401

(310) 393-3055 ie

12

VISUVANATHAN RUDRAKUMARAN

875 Avenue of the Americas

New York, New York 10001

(212) 290-2925

COUNSEL FOR CROSS-

RESPONDENTS