Amicus Curiae Brief — Holder v. Humanitarian Law Project

Nos. 08-1498 & 09-89

In the

Supreme Court of the Gnited States

ERIC HOLDER, ATTORNEY GENERAL, ET AL.,

Petitioners/Cross-Respondents,

Vv.

HUMANITARIAN LAW PROJECT, ET AL.,

Respondents’ _ross-FPetitioners.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF

CENTER FOR CONSTITUTIONAL

JURISPRUDENCE AND CENTER FOR LAW

AND COUNTERTERRORISM IN SUPPORT OF

PETITIONERS/CROSS-RESPONDENTS

HON. EDWIN MEESE III JOHN C. EASTMAN

214 Massachusetts Ave., NE Counsel of Record

Washington, DC 20002 JOHN C. YOO

KAREN J. LUGO

ANDREW C. MCCARTHY RYAN T. DARBY

233 Pennsylvania Ave., SE Center for Constitut’!

3rd Floor Jurisprudence

Washington, DC 20003 c/o Chapman Univ.

School of Law

DAVID B. RIVKIN, JR. One University Drive

Baker Hostetler Orange, CA 92886

1050 Washington Square (714) 628-2500

Suite 1100

1050 Connecticut Ave., NW

Washington, DC 20036

Cuuusei for Amici Curiae

Center for Constitutional Jurisprudence

and Center for Law and Counterterrorism

(additional counse] listed on inside cover)

CASEY J. MCTIGUE

Severson & Werson, P.C.

One Embarcadero Center

Suite 2600

San Francisco, CA 94111

MICHELLE J. CONTOIS

800 S. Victoria Ave.

Suite 314

Ventura, CA 93009

i

TABLE OF CONTENTS

Page

ee Ge He I I acctnsinsca sccddcodsccccccocsscvenscnss iii

INTEREST OF AMICI CURIAE................0.2..000c0c00ee. 1

SUMMARY OF THE ARGUMENT ...................0....... 2

I. THE FRAMERS RECOGNIZED THAT

THE NATIONAL GOVERNMENT'S

PRIMARY DUTY IS THE PROTECTION

OF THE NATION'S SECURITY....................... 3

II. DURING WARTIME THE FEDERAL

GOVERNMENT CAN PROHIBIT THE

OPERATION OF GROUPS HOSTILE TO

THE UNITED STATES OR ITS ALLIES...... 10

A. Government May Use Its Power Not

Only to Prohibit Terrorist

Operations But to Prohibit Support

for Any Activities of The Terrorist

Ts cccictintemilennduddsannieniinpadiinensincts 15

1. Permitting Support for FTO

Activities Labeled “Charity”

Creates an Absurd,

Unwarranted Exception. ................ 17

2. Charitable Donations Are A

Mainstay of Terrorist Financing....21

Il.

li

SECTION 2339B DOES NOT

UNCONSTITUTIONALLY INFRINGE

UPON PROTECTED SPEECH .................

A.

The Material Support Statute

Regulates Conduct, Not Speech,

and Incidental Restrictions on

Speech Do Not Trigger First

Amendment Scrutiny..........................

If The Court Finds Speech Rights

Are Implicated, The O’Brien

Intermediate Scrutiny Standard

EE

The Material Support Statute

Survives Even Strict Scrutiny, as

National Security is the Utmost

Compelling Interest and The Statute

is Narrowly Tailored to Protect The

Nation from International Terrorism

1. Preventing Aid to Terrorists

Is A Compelling Government

ST ts scsniegeiancsensbdtosdinbiniaiidebinmeines

2. The “Narrowly Tailored” Prong

Must Be Applied in The Context

of the Unpredictable and

Dangerous Realm of Foreign

i inicinassinien levis beciniinibaiariacahenniains

3. Preventing All Aid, Support, or

Assistance to Terrorist Groups

is an Appropriate Response to a

“OCU OTIGS TU OUS oo ccccccccsccccccecesecses

00

11:00

CONCLUSION

iv

TABLE OF AUTHORITIES

Cases

AT&T Corp. v. Hulteen,

a Gs Cle IE I tices ccnnsnccsicsdcunscomcensnnssial 27

American Civil Liberties Union v.

National Security Agency,

493 F.3d 644 (6th Cir. 2007) iaisaidalteniene adidamtiaedaiaeieiaaaan 1

Boumediene v. Bush,

SO he GA Be i rcccseccevsenscseiscinnanmens 12,13

Chicago & Southern Air Lines v. Waterman

S.S. Corp., 333 U.S. 103 (1948)................ 13, 14

City of Erie v. Pap's A.M.,

tk Sf 32

Clark v. Community for Creative Non-Violence,

Ge Wes ee Se aticcintncncciniiiiiinndiuiinminiaianeiian 34

Farbwerke Vormals Meister Lucius &

Bruning v. Chemical Foundation, Inc.,

Ne OP ee i iccincccstncinnctniuniesinniiieninniiicdual 20

Ft. Wayne Books, Inc. v. Indiana,

a SEs Gi Ge ecsnctcnccstinnsiscietediniesciidimmmmelila 37

Giboney v. Empire Storage & Ice Co.,

SD et ee CI iit ccttitcsininccnedideineianenmsibalane 27

Gilligan v. Morgan,

GE VA. Be Ce iescreneisctectmniemnnn 14

Haig v. Agee,

Ge OF Se Ce nrcivittiiiinmmmniiinl 30, 33

Hamdi v. Rumsfeld,

Ee TF. re Ce ic ccninsesssisicnsinennentintiinnal 1,10

Vv

Holy Land Foundation for Relief and Devel-

opment v. Ashcroft,

333 F.3d 156 (D.C. Cir 2003)...................c cece 16

Humanitarian Law Project v. Reno,

9 F. Supp. 2d 1176 (C.D. Cal. 1998)............... 15

Humanitarian Law Project v. Reno,

205 F.3d 1130 (9th Cir. 2000)................... 15, 37

Near v. Minnesota,

I os csccctndnnancaweseneecssouvecss 36

Prize Cases,

SE 12

Ex parte Quirin,

i eeienmmeniins 11

Regan v. Wald,

BD GFE, BOs (IGG)... cccccccccccescscssccccsscceses 13, 19

Rostker v. Goldberg,

453 U.S. 57 (1981)..................se000. 29, 32, 33, 36

Rumsfeld v. Forum for Academic and

Institutional Rights, Inc.,

EM MED cccvasscccescccsccsssecesucessece passim

Scales v. United States,

I IED. .. «son conccacescccoccccccescccosceces 30

Schenck v. United States,

ND 34, 36

Silesian-American Corp. v. Clark,

EE 19

Steward v. Kahn,

ee cudscduwnenensecesece 11

vi

Stoehr v. Wallace,

ee I I ccininssiirincidaitsisinicnninsniniaainnianans 26

Uebersee Finanz-Korporation, A. G. v.

McGrath,

TS anne Mme RTL 27

United States v. Abdulgader,

2009 U.S. Dist. LEXIS 25011

Cs ER, MI. Git, ID ov cccccccscsscsccveccoccuceess 17

United States v. Albertini,

es cis cc nccisideisnaeiviinaanl 33, 35

United States v. Brown,

I eset 17

United States v. Curtiss-Wright Export Corp.,

as SE I aticnccicsvdcntoncsesnncniiecensse 12, 13

United States v. Holy Land Found.

for Relief & Dev.,

2007 WL 1452489 (Aug. 2002 )............... 22, 23

United States v. Hossein Kalani Afshari,

2009 U.S. Dist. LEXIS 33887 (C.D. Cal.

es es Se iidsneienstnsciiteaitianiintidepaeneunienaniagenn 16

United States v. Lindh,

212 F. Supp 2d 541 (E.D.Va. 2002)......... 32, 33

United States v. O'Brien,

Ee Ce GE ccisncccxcnrccccessnesscosasess passim

United States v. Progressive, Inc..,

467 F. Supp. 990 (W.D. Wis. 1979)................ 37

United States v. Taleb-Jedi,

566 F.Supp.2d 157 (2008)................ccccceeee eee 29

United States v. Turkette,

a rT 17

vl)

Ward v. Rock Against Racism,

Ne sia cccienepiindcensianwhonnatsne 37

Wetzel v. Liberty Mut. Ins. Co.,

372 F. Supp. 1146 (WD Pa. 1974)................. 26

Youngstown Sheet & Tube Co. v. Sawyer,

circ nelnciieatiieniasevenenevenees 11

Statutes

Ss i icreniaidedibiiliiadeaidiniemindidmnneaiiioemens 15, 19

I a lalla 25

Antiterrorism and Effective Death Penalty Act

of 1996, § 301, 18 U.S.C. § 2339B note

SITE ptsssicussideusteinsseanensniniceenicedonindaesaaieniamiuianudiion passim

Authorized Use of Military Force, Pub. L. No.

107-40 (2001) (“AUMP”) ...........00000000000002... 1, 20

Other Authorities

153 CONG. REC. S15876 (daily ed. Dec. 18,

2007) (statement of Sen. Ky)) ................. 16, 23

Anahad O’Connor and Eric Schmitt, Terror

Attempt Seen as Man Tries to Ignite De-

vice on Jet, NEW YORK TIMES (Dec. 25,

EER SRTIRTEEER EE te eaten ae oa EE 3

ABUZA, ZACHARY, NBR ANALYSIS, Funding

Terrorism in Southeast Asia: The Fi-

nancial Network of Al Qaeda and -Je-

maah Islamiyah, Vol. 14, No. 5, at 7-8

(December 2008) .0....0.....c ccc cccccceceeceeceeceees 20, 21

viii

BRUCE HOFFMAN, INSIDE TERRORISM 3-15 (Co-

lumbia University Press 2005).......... 18, 23, 26

Counterterrorism, FBI, to R. Richard New-

comb, Director of the office of Foreign

Assets Control, “Holy Land Foundation

for Relief and Development, Interna-

tional Economic Emergency Powers Act,

Action Memorandum,” U.S. Depart-

ment of the Treasury 16-18, 27 (Nov. 5,

SITE Uisciitdasiacteiniddisibaebabnaebaiddaatmaninnnbmatnamebinetes 23, 25

Department of Defense, Dictionary of Military

and Associated Terms 550 (Aug. 19,

2009) at

http://www.dtic. mil/doctrine/jel/new_pu

a aac piaedonenill 26

Extraterritorial Reach of Writ of Habeas Cor-

pus, 122 HARV. L. REV. 395 (2008) ................ 13

Financial Action Task Force, Terrorist Financ-

ing (Feb. 29, 2008), available at

http://www.fatf-gafi.org/dataoecd/28/43/

I vetieiiierinsdnsieesinensinndmannanmnenensiuiiesis 19, 21

FREDERICK W. MARKS III, INDEPENDENCE ON

TRIAL: FOREIGN AFFAIRS AND THE MAK-

ING OF THE CONSTITUTION 3 (SR Books

a scaadeeaddaemmainiieel 4,8,9

GEORGE WASHINGTON, LETTER FROM THE CON-

STITUTIONAL CONVENTION TO THE

PRESIDENT OF THE CONGRESS (Septem-

ber 17, 1787) reprinted in 2 DEBATE ON

ix

THE CONSTITUTION 937 (Library of

p LESS SS LAR LETS eee eae n en 6,7

Home-Grown Bombers, THE ECONOMIST (Octo-

ber 1, 2009), at

http://www.economist.com/world/united

states/displaystory.cfm?story_id=14561

eat cebsubinacbiacsbasnlietusaateieiiaeshdiiisnssdansbineanncasii yiniaseniadaienieitedin 2

H.R. Rep. No. 104-383 (1995)....................... 17, 19, 32

JAMES MADISON, NOTES OF DEBATES IN THE

FEDERAL CONVENTION OF 1787 (Tuesday,

May 29) (W.W. Norton & Co. ed. 1987) .......... 4

JOHN ADAMS, SPEECH TO BOTH HOUSES OF

CONGRESS, (November 22, 1797) re-

printed in 9 THE WORKS OF JOHN ADAMS

(Little Brown & Co. 1854)........................05 5,6

JOHN JAY TO THE PRESIDENT OF CONGRESS (Oc-

tober 13, 1785) reprinted in 3 THE COR-

RESPONDENCE AND PUBLIC PAPERS OF

JOHN JAY 1782-1793, at 171 (Henry P.

I, GI, TIFIED occccscccccecececcsesonscesssseceosescnse 9

JOHN LOCKE, TWO TREATISES OF GOVERNMENT

355-56 (Peter Laslett ed., 1988) ..................... 4

JOSEPH STORY, 2 COMMENTARIES ON THE CON-

STITUTION, 98 (Melville M. Bigelow ed.,

AERIS CF ie ae Pane oes Sk RR Sasa 6, 7

JOSEPH STORY, A FAMILIAR EXPOSITION OF THE

CONSTITUTION OF THE UNITED STATES

xX

215 (Regnery Gateway, Inc. 1986) (1859)

MATTHEW LEVITT, HAMAS: POLITICS, CHARITY,

AND TERRORISM IN THE SERVICE OF JI-

HAD, 6 (Yale University Press 2006)....... 21, 22

Memorandum from Dale Watson, Assistant

Director for Counterterrorism, FBI, to

R. Richard Newcomb, Director of the of-

fice of Foreign Assets Control, “Holy

Land Foundation for Relief and Devel-

opment, International Economic Emer-

gency Powers Act, Action Memoran-

dum,” U.S. Department of the Treasury

16-18, 27 (Nov. 5, 2001) available at

http://fletcher.tufts.edu/forum/archives/

pdfs/27-1pdfs/Levitt3.pdf.................ccc ccc eee eee 25

Michael B. Farrell, Alavi Foundation Com-

plaint Comes at Delicate Time for US,

Iran, CHRISTIAN SCIENCE MONITOR (Nov.

12, 2009), at

www.cxmonitor.com/2009/1113/ po2s17-

IED iictiicssnsinnenennndnnadnitansamneiniasenesecnnimnenion 17

Press Release, U.S. Dep’t. of the Treas.,

Treasury Department Statement Re-

garding the Designation of the Global

Relief Foundation PO-3553 (Oct. 18,

IIIT Gslscscrbsscuiasssndidiedadebsnssenceasiadainaeiaiaanaiaiiaanetduaebeteadanensnsiiadi 23

Progress Since 9/11: The Effectiveness of the

U.S. Anti-Terrorist Financing Efforts:

Hearing before the House Comm. on Fi-

nancial Services, Subcomm. on Over-

x)

sight and Investigations, Serial No. 108-

10 at 30, 73 (March 11, 2003) (State-

ment of Steven Emerson, Director, The

Investigative Project) .............................

. 25, 26

S.C. Res. 1373, U.N. Doc. S/Res/1373 (Sept. 28,

Statement, Department of State, Office of the

Coordinator for Counterterrorism,

available at

http://www.state.gov/s/ct/enemy/index.h

tm (last visited December 22, 2009) ......

THE FEDERALIST NO. 23 (Alexander Hamilton) ....

THE FEDERALIST NO. 26 (Alexander Hamilton)

THE FEDERALIST NO. 34 (Alexander Hamilton)

THE FEDERALIST NO. 78 (Alexander Hamilton)

THOMAS A. BAILEY, A DIPLOMATIC HISTORY OF

THE AMERICAN PEOPLE (Appleton-

Century-Crofts 1955) ........................000..

THOMAS COOLEY, THE GENERAL PRINCIPLES OF

CONSTITUTIONAL LAW IN THE UNITED

STATES OF AMERICA 86-87 (Little Brown

& Co. 2001) (1880) ........... cece cece cece cece

THOMAS JEFFERSON AND JOHN ADAMS TO JOHN

JAY (March 28, 1786) reprinted in THO-

MAS JEFFERSON TRAVELS: SELECTED

WRITINGS 1784-1789, at 104-05 (An-

thony Brandt, ed. 2006) ...................0.....

xii

Transcript of Trial at Vol. 11, 67-68, United

States v. Holy Land Found for Relief &

Dev., 2007 WL 1452489 (N.D. Tex. 2008)

I, PED cn eccenccsescssnnvsccecenssssesnenens 24

Transcript of Trial at Vol. 15, 103:13—04:2,

United States v. Holy Land Found. for

Relief & Dev., 2007 WL 1452489 (N.D.

Tex. 2008) (No. 3:04-CR-240-P) .............. 23, 24

U.S. Gen. Accounting Office, Report to Con-

gressional Requesters: U.S. Agencies

Should Systematically Assess Terror-

ists’ Use of Alternative Financing

Mechanisms, GAO-04-163, 14 (2003) at

http://www.nbr.org/publications/ analy-

sis/ pdf/ voll4no5.pdf ......................... 18, 21, 22

United Nations Counter-Terrorism Implemen-

tation Task Force, Working Group Re-

port: Tackling the Financing of Terror-

Ee ee SI cicnanascensantpenehscecnndsisantesnnes 20

1

INTEREST OF AMICUS CURIAE!

The Claremont Institute for the Study of States-

manship and Political Philosophy is a non-profit edu-

cational foundation whose stated mission is to “re-

store the principles of the American Founding to

their rightful and preeminent authority in our na-

tional life,” including the principle, at issue in this

case, that one of the foremost duties of the federal

government is to protect the nation’s security in time

of war. The Institute pursues its mission through

academic research, publications, scholarly confer-

ences and, via its Center for Constitutional Juris-

prudence, the selective appearance as amicus curiae

in cases of constitutional significance. Of particular

relevance to this case, Institute scholars have written

extensively on national security matters and the con-

stitutional intersection of national security and civil

liberties including amicus curiae briefs in the cases

of Hamdi v. Rumsfeld, 542 U.S. 507 (2004) and

American Civil Liberties Union v. National Security

Agency, 493 F.3d 644 (6th Cir. 2007).

The Center for Law & Counterterrorism is a joint

project of the Foundation for Defense of Democracy

and the National Review Institute, focusing on coun-

terterrorism and American national security. Co-

Chairman Andrew C. McCarthy was a federal prose-

'The Claremont Institute Center for Constitutional Jurispru-

dence files this brief with the consent of all parties. The letters

granting consent have been filed previously. Counsel for a party

did not author this brief in whole or im part. No person or en-

tity, other than amicus curiae, its members, or its counsel made

a monetary contribution specifically for the preparation or

submission of this brief.

2

cutor for 18 years at the U.S. Attorney's Office for the

Southern District of New York and worked on sev-

eral terrorism/national security investigations.

SUMMARY OF THE ARGUMENT

On September 11, 2001, Al Qaeda terrorists killed

2,796 civilians, obliterated the twin World Trade

Center towers, attacked the Pentagon, and at-

tempted to destroy either the U.S. Capitol or White

House. President Bush declared that the attacks

triggered a state of war with Al Qaeda, and Congress

followed with an Authorization to use all “necessary

and appropriate force” against those whom the

President determined “planned, authorized, commit-

ted or aided” the September llth attacks, or who

harbored said persons, “in order to prevent any fu-

ture acts of international terrorism against the

United States by such nations, organizations or per-

sons.”

America remains at war today. The terrorist en-

emy remains unvanquished, though thankfully more

than twenty-three attempted attacks by it inside the

United States since 9/11 have been thwarted.* Con-

gress enacted sections 302 and 303 of the Antiterror-

ism and Effective Death Penalty Act (‘AEDPA”) and

amended them in 2004, the Intelligence Reform and

Terrorism Prevention Act (“IRTPA”), 18 U.S.C.

* Authorization for Use of Military Force, Pub. L. No. 107-40,

115 Stat. 224 (2001)

3 Home-Grown Bombers, THE ECONOMIST (October 1, 2009), at

http://www.economist.com/world/unitedstates/displaystory.cfm?

story_id=14561049.

3

§ 2339B(a) and 8 U.S.C. § 1189(a)(1), to prohibit any

kind of support for named Foreign Terrorist Organi-

zations (“FTOs”), even when individuals or groups

contribute to ostensibly non-violent functions.

By finding the material support statute imper-

missibly vague, the court below invalidated an Act of

Congress, undermined the government’s power to

conduct war, and significantly restricted congres-

sional power to prohibit aid to the enemy.

ARGUMENT

I. THE FRAMERS RECOGNIZED THAT

THE NATIONAL GOVERNMENT’S PRI-

MARY DUTY IS THE PROTECTION OF THE

NATION’S SECURITY

The decision below erred in ignoring this case’s

unique circumstances: the Nation is at war. A terror-

ist enemy has successfully attacked the homeland

once and continues efforts to launch attacks on

Americans, most recently via a fortuitously unsuc-

cessful airline bombing attempt on Christmas Day.‘

The federal government’s constitutional duty to pro-

tect the Nation and its citizens during time of war is

at stake.

Strengthening the United States’ ability to pro-

tect the nation’s security was one of the primary mo-

4 See Anahad O’Connor and Eric Schmitt, Terror Attempt Seen

as Man Tries to Ignite Device on Jet, NEW YORK TIMES (Dec. 25,

2009), available at

http://www.nytimes.com/2009/12/26/us/26plane.html?scp=8&sq

=Detroit%20plane%20attack&st=cse.

4d

tivations behind the drafting the Constitution. Anti-

Federalists warned of diminished state autonomy if

more powers were granted to a national government,

but the Federalists won ratification of the Constitu-

tion in part because of the widely-recognized need to

defend against external threats.® In this they heeded

John Locke’s claim that the “preservation of soci-

ety . . . [and] every person in it” was the “first and

fundamental natural law.” For only after ordered se-

curity was established—“as it consisted with the pub-

lic good”——could concerns about personal liberty, pro-

tection of property, rule of law, and self-government

be considered. JOHN LOCKE, TWO TREATISES OF GOV-

ERNMENT 355-56 (Peter Laslett ed., 1988) (emphasis

in original).

In the debate over ratification of the Constitution,

Alexander Hamilton noted that one of “the principal

purposes” of the newly created federal government

was “the common defense of the members; the pres-

ervation of the public peace as well against internal

convulsions as external attacks.” THE FEDERALIST NO.

23, at 153 (Alexander Hamilton) (Clinton Rossiter ed.,

1961). Accordingly, as Hamilton rightly recognized,

5 Edmund Randolph criticized the Confederation, for example,

because it “produced no security against foreign invasion; con-

gress not being permitted to prevent a war nor to support it by

their own authority .. . they could not cause infractions of trea-

ties or of the law of nations, to be punished .. . .” JAMES MADI-

SON, NOTES OF DEBATES LN THE FEDERAL CONVENTION OF 1787

29, (Tuesday, May 29) (W.W. Norton & Co. ed. 1987). See also,

FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL: FOREIGN

AFFAIRS AND THE MAKING OF THE CONSTITUTION 3 (SR Books

1986) (1973) (“The most elemental duty of the Federation gov-

ernment, ... was the protection of the country against foreign

attack”).

5

the Framers’ intent was to endow the federal gov-

ernment “with all the powers requisite to [the] com-

plete execution of” this purpose.” Jd., at 153-54. The

government’s powers in the national security context

were to be very broad, according to Hamilton:

These powers ought to exist without limitation,

because it is impossible to foresee or define the

extent and variety of national exigencies, and

the correspondent extent and variety of the

means which may be necessary to satisfy them.

The circumstances that endanger the safety of

nations are infinite, and for this reason no

constitutional shackles can wisely be imposed

on the power to which the care of it is commit-

ted.

Id., at 153 (emphasis omitted). This was not a stray

thought, but a consistent theme in the Federalist

Papers, the leading argument in favor of the ratifica-

tion of the Constitution. Because “it can[not] be

shown that the circumstances which may affect the

public safety are reducible within certain determi-

nate limits,” Hamilton wrote, “it must be admitted as

a necessary consequence that there can be no limita-

tion of that authority which is to provide for the de-

fense and protection of the community in any matter

essential to its efficacy.” THE FEDERALIST No. 23

(Alexander Hamilton), supra, at 154. The federal

government should possess “an indefinite power of

providing for emergencies as they might arise.” THE

FEDERALIST No. 34 (Alexander Hamilton), supra, at

207.

6

In the decade that followed, key proponents of

ratification reaffirmed the critical importance of the

authority to provide for the common defense given by

the Constitution to Congress and to the President.

John Adams reflected on the critical role for national

defense, for example, noting: “Nothing... will con-

tribute so much to the preservation of peace, and the

attainment of justice, as a manifestation of that en-

ergy and unanimity of [the American people] and the

exertion of those resources for national defence which

a beneficent Providence has kindly placed within

their power.” JOHN ADAMS, SPEECH TO BOTH HOUSES

OF CONGRESS, (November 22, 1797) reprinted in 9

THE WORKS OF JOHN ADAMS at 122 (Little Brown &

Co. 1854). And in his very first Act as President,

George Washington affirmed the “particular regard”

which should be given to “common defence,” stating

in his First Inaugural Address that “to be prepared

for war is one of the most effectual means of preserv-

ing peace.” GEORGE WASHINGTON, SPEECH TO BOTH

HOUSES OF CONGRESS (January 8 1790) reprinted in

WRITINGS OF GEORGE WASHINGTON at 329 (Lawrence

B. Evans, ed. Knickerbocker Press 1908).

This widely-shared view was embraced a genera-

tion later by Justice Joseph Story, himself a product

of the American Revolution and one of America’s

most respected jurists. In his highly-regarded Com-

mentaries on the Constitution, Justice Story cau-

tioned a crisis of both “liberty and sovereignty” if the

government did not have authoritative power to act

in defense of the nation:

Indeed, in regard to times of war, it seems ut-

terly preposterous to impose any limitations

7

upon the power; since it is obvious that emer-

gencies may arise, which would require the

most various and independent exercises of it.

The country would otherwise be in danger of

losing both its liberty and its sovereignty, from

its dread of investing the public councils with

the power of defending it. It would be more

willing to submit to foreign conquest than to

domestic rule.

JOSEPH STORY, 2 COMMENTARIES ON THE CONSTITU-

TION, 98 (Melville M. Bigelow ed., Little Brown & Co.

5th ed. 1891) (1833) (emphasis added). Another great

commentator on the Constitution, Thomas Cooley,

was still making the same point a half century later:

When war exists the government possesses

and may exercise all those extreme powers

which any sovereignty can wield under the

rules of war recognized by the civilized world....

THOMAS COOLEY, THE GENERAL PRINCIPLES OF CON-

STITUTIONAL LAW IN THE UNITED STATES OF AMERICA

86-87 (Little Brown & Co. 2001) (1880).

The tensions between liberty and safety were well

understood by the Framers. Of course, no one would

oppose measures that improve security with no cost

to civil liberties. But when trade-offs between the two

created tensions, leading Framers held the common-

sense belief that the protection of the national secu-

rity brought greater benefits to society. Alexander

Hamilton noted in Federalist 26 that the notion “of

restraining the legislative authority in the means of

providing for the national defense is one of those re-

finements that owe their origin to a zeal for liberty

8

more ardent than enlightened.” THE FEDERALIST NO.

26 (Alexander Hamilton), supra at 168. As members

of the Constitutional Convention delivered the final

document to the President of Congress, the cover let-

ter acknowledged that “individuals entering into so-

ciety, must give up a share of liberty to preserve the

rest” and to provide for “the interest and safety of

all.” GEORGE WASHINGTON, LETTER FROM THE CON-

STITUTIONAL CONVENTION TO THE PRESIDENT OF THE

CONGRESS (September 17, 1787) reprinted in 2 DE-

BATE ON THE CONSTITUTION 937 (Library of America

1993).

One of the most urgent foreign threats in the

Framers’ minds was Barbary piracy. Then, as now, a

renegade group flouted the law of nations and rules

of civilized warfare. These outlaws disrupted the

course of business and safe passage for France, Spain,

England, and America as they captured ships and

cargo, and killed or enslaved sailors and passengers.

When Thomas Jefferson and John Adams attempted

to negotiate a treaty with Tripoli, they confronted the

same intransigence expressed today. They asked

what justified war upon nations like America who

“considered all mankind [who had done us no wrong]

as our friends,” and Tripolitan Ambassador to Lon-

don, Sidi Haji Abdul Rahman Adja replied “that it

was their right and duty to make war upon nations

[who had not acknowledged their authority as writ-

ten in the Koran], . . and to make slaves of all they

could take as prisoners, . . .” THOMAS JEFFERSON AND

JOHN ADAMS TO JOHN JAY (March 28, 1786) reprinted

in THOMAS JEFFERSON TRAVELS: SELECTED WRITINGS

1784-1789, at 104-05 (Anthony Brandt, ed. 2006). So,

9

free nations, without the will or means to refuse,

submitted to paying tribute and ransom.®

So great an influence was this threat to safety

and commerce on the constitutional deliberations,

American historian Thomas Andrew Bailey observed,

“in an indirect sense, the brutal Dey of Algiers was a

Founding Father of the Constitution.” THOMAS A.

BAILEY, A DIPLOMATIC HISTORY OF THE AMERICAN

PEOPLE 65 (Appleton-Century-Crofts 1955). John Jay,

writing to President of Congress Richard Henry Lee,

said that the Barbary threat “did not strike him as a

great evil” since “the more we are ill-treated abroad

the more we shall unite and consolidate at home.”

Jay expected that the Barbary hostilities would spur

American interest in laying “foundation for a re-

spectable Navy.” JOHN JAY TO THE PRESIDENT OF

CONGRESS (October 13, 1785) reprinted in 3 THE

CORRESPONDENCE AND PUBLIC PAPERS OF JOHN JAY

1782-1793, at 171 (Henry P. Johnston, ed. 1891).

It.is against this background that this case must

be understood. It would run counter to our constitu-

tional traditions and pure common sense to read the

6 The United States paid thirty times the price of a seventy-

four-gun ship in ransom and tribute over a twelve-year period,

or $10 million (the cost of each ship was a third of a million dol-

lars). FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL: FOR-

EIGN AFFAIRS AND THE MAKING OF THE CONSTITUTION 208 (1986)

(1973).

7 When news arrived in 1793 that eleven American ships had

fallen prey to the Algerines, Congress ordered the construction

of six warships (although construction of three was later sus-

pended). By 1815, the Algerines had incarcerated 450 Ameri-

cans “and were only halted when a battle-hardened squadron of

ten ships led by Commodore Stephen Decatur subdued a defi-

ant Dey under the mouth of the cannon.” Jd., at 208-09.

10

Constitution as disabling the federal government

from effectively conducting war to protect the nation

from attack, when enhancing that power was one of

the principal purposes of the Constitution. It would

be equally absurd to interpret the Constitution to

create a greater burden on the nation’s ability to

fight that war when the enemy is a non-state actor,

such as a terrorist organization, rather than a na-

tion-state.

II. DURING WARTIME THE FEDERAL

GOVERNMENT CAN PROHIBIT THE OP-

ERATION OF GROUPS HOSTILE TO THE

UNITED STATES OR ITS’ ALLIES

As this Court recognized in Hamdi, the United

States is at war against al Qaeda and affiliated ter-

rorists. The Authorization for Use of Military Force

(“AUMF”) served to activate the President's war

power and to provide that cornbatant detention for

the duration of the conflict “is so fundamental and

accepted an incident to war as to be an exercise of

the ‘necessary and appropriate force’ Congress has

authorized the President to use.” Hamdi v. Rumsfeld,

542 U.S. 507, 517-18 (2004). Our terrorist enemy in-

filtrates agents across our borders, covertly provides

them with money and assistance, and then launches

surprise attacks on innocent civilians. American

troops are fighting on battlefields abroad, yet the

court below has undercut the reasonable efforts of

government to deny aid and support to the enemy at

home. In fact, the court below has made it easier for

terrorists to operate within the United States than

abroad, by limiting the government’s powers to stop

11

foreign hostile groups on U.S. territory, but not

abroad.

Even were he acting without congressional au-

thority, the President is invested with the constitu-

tional duty to defend the country from attack and the

power of Commander-in-Chief,’ and so has wide dis-

cretion to deploy the forces and methods necessary

for the common defense. But where, as here, the

President acts in concert with Congress, his war-

making powers are exceptionally broad. Youngstown

Steel Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-

86 (1952) (Jackson, J., concurring). Since not all

“measures for the carrying on of war” are defined by

the Constitution, “(t]he decision of all such questions

rests wholly in the discretion of those to whom the

substantial powers involved are confided by the Con-

stitution.” Steward v. Kahn, 78 U.S. 493, 506 (1870).

See also, Ex parte Quirin, 317 U.S. 1, 26 (1942) (“The

Constitution thus invests the President as Com-

mander in Chief with the power to wage war .. , and

to carry into effect all laws passed by Congress for

the conduct of war... .”)

8 Justice Story wrote that the power to “resist invasion” and

“carry on war” cannot “properly be presumed to exist in any

other department of the government [than the executive].” Jo-

SEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF

THE UNITED STATES 215 (Regnery Gateway, Inc. 1986) (1859);

THE FEDERALIST NO. 78 (Alexander Hamilton), supra at 465.

(“The executive . .. holds the sword of the community. The leg-

islature ... commands the purse... . The judiciary, on the con-

trary, has no influence over either the sword or the purse; no

direction either of the strength or of the wealth of the society;

and can take no active resolution whatever.”).

12

Elected government, not the courts, has been

charged with the chief responsibility to protect the

citizenry and defend the nation. During the Civil

War, for example, in reviewing President Lincoln’s

suppression of insurrection, this Court deferred to

the Commander-in-Chief to meet with force “such

armed hostile resistance” and to confront “a civil war

of such alarming proportions.” Prize Cases, 67 U.S.

635, 670 (1863) (emphasis in original). This Court

accepted that the “question [was] to be decided by

him, and this Court must be governed by the deci-

sions and acts of the political department of the Gov-

ernment to which this power was entrusted.” /d.

The seminal holding in United States v. Curtiss-

Wright articulated the principle that the President

enjoys “broad discretion” over war policy. 299 U.S.

304, 329 (1936). The Court recognized that “the pow-

ers to declare and wage war,.. . if they had never

been mentioned in the Constitution, would have

vested in the federal government as necessary con-

comitants of nationality” and similarly that “the in-

vestment of the federal government with the powers

of external sovereignty did not depend upon the af-

firmative grants of the Constitution.” Jd., at 318.

This Court recently re-affirmed Curtiss-Wright’s

principle of deference in Boumediene v. Bush: “In

considering both the procedural and substantive

standards used to impose detention to prevent acts of

terrorism, proper deference must be accorded to the

political branches.” 128 S. Ct. 2229, 2276 (2008). In-

deed, Boumediene recognized that “neither the Mem-

bers of this Court nor most federal judges begin the

day with briefings that may describe new and serious

13

threats to our Nation and its people. The law must

accord the Executive substantial authority to appre-

hend and detain those who pose a real danger to our

security.” Id., at 2276—77. Despite holding that ha-

beas corpus extended to Guantanamo Bayv, the Court

did not challenge the traditional deference owed to

political branches on questions of war. Against this

backdrop, the Boumediene holding must be read nar-

rowly.9

The present situation does not implicate Boume-

diene because the right of habeas corpus is not at is-

sue. It does, however, invoke Curtiss-Wright’s defer-

ence principle. The overarching issue is the Presi-

dent’s authority to designate a group as a Foreign

Terrorist Organization, and to implement an Act of

Congress prohibiting support for FTO’s.

This Court has applied the same principle of defer-

ence in foreign affairs, where the stakes are not as

grave as direct threats to national security. “Matters

relating to the conduct of foreign relations .. . are so

exclusively entrusted to the political branches of gov-

ernment as to be largely immune from judicial in-

quiry or interference.” Regan v. Wald, 468 U.S. 222,

242 (1984) (quotes omitted); see also, Chicago &

Southern Air Lines v. Waterman S.S. Corp., 333 U.S.

103, 111 (1948) (“(T]he very nature of executive deci-

° See “Extraterritorial Reach of Writ of Habeas Corpus,” 122

HARV. L. REV. 395, 400 (2008) (“Although the Court asked

broadly “whether foreign nationals, apprehended and detained

in distant countries during a time of serious threats to our Na-

tion's security, may assert the privilege of the writ and seek iis

protection,” 1t answered its own question quite narrowly. Using

a functional approach that took into account practical consid-

erations, the Court limited its holding to Guantanamo Bay’).

14

sions as to foreign policy is political, not judicial.

Such decisions are wholly confided by our Constitu-

tion to the political departments of the government,

Executive and Legislative.”); Gilligan v. Morgan, 413

U.S. 1, 10 (1973) (“It is this power of oversight and

control of military force by elected representatives

and officials which underlies our entire constitu-

tional system”).

Because courts do not have the benefit of access to

the larger mosaic of national security information,

they have been reticent to intervene where political

powers are charged with providing for national de-

fense. As Justice Jackson put it, such decisions,

are delicate, complex, and involve large ele-

ments of prophecy. They are and should be

undertaken only by those directly responsible

to the people whose welfare they advance or

imperil. They are decisions of a kind for which

the Judiciary has neither aptitude, facilities

nor responsibility and have long been held to

belong in the domain of political power not

subject to judicial intrusion or inquiry.

Waterman, 333 U.S., at 111. “It would be intolerable

that courts, without the relevant information, should

review and perhaps nullify actions of the Executive

taken on information properly held secret.” Jd.

15

A. Government May Use Its Power Not Only

to Prohibit Terrorist Operations But to

Prohibit Support for Any Activities of The

Terrorist Organizations

Congress’s decision to enact the material support

statute, and the President's exercise of delegated

power in identifying the terrorist organizations,

represents a considered wartime judgment by the po-

litical branches of the optimal means to confront the

unique challenges posed by terrorism—a judgment to

which this Court owes the highest deference. Al

Qaeda does not control a state, does not have citizens

or cities to protect, and does not field regular, uni-

formed armed forces that obey the laws of war.

Rather than a traditional nation-state, it operates as

a covert network that disguises itself within the le-

gitimate flows of global commerce. It raises funds

from donations, uses them to pay for personnel, sup-

plies; and training, and then transports agents and

communicates with them once in their target coun-

tries. Money and services are the lifeblood of a terror-

ist organization, just as important as access to weap-

ons or recruiting personnel.

Congress recognized that the nation’s law en-

forcement and security agents must be able to shut

off financial support and its substitutes to terrorist

groups. “[FJoreign organizations that engage in ter-

rorist activity are so tainted by their criminal con-

duct that any contribution to such an organization

facilitates that conduct.” Antiterrorism and Effective

Death Penalty Act of 1996 (*“AEDPA”), § 301(a), 18

U.S.C. § 2339B note (1996) (emphasis added). Con-

gress designed 18 U.S.C. 2339B “to provide the Fed-

16

eral Government the fullest possible basis, consistent

with the Constitution,” to curtail assistance to desig-

nated FTOs. AEDPA, § 301(b).

The notion that non-violent assistance, financial

or otherwise, can advance an FTO’s “peaceful” activi-

ties without also furthering the violent core of the

group’s mission is a fallacy. Financial contributions

or services g.ven to a terrorist group in one area

merely frees up resources and energy for allocation to

violent activities. Permitting contributions to FTOs,

simply because the donor intends that they be used

for “peaceful” purposes, directly conflicts with Con-

gress’s determination that no quarantine can effec-

tively isolate “good” activities from the evil of terror-

ism. See Humanitarian Law Project v. Reno, 9 F.

Supp. 2d 1176, 1189 (C.D. Cal. 1998); AEPDA

§ 301(a)(7).

Congress has determined that there is no dis-

cernable line between an FTO’s violent and non-

violent activities. “[E]ven humanitarian aid can be

used by a terrorist organization to help it recruit new

members.” 153 CONG. REC. $15876 (daily ed. Dec. 18,

2007) (statement of Sen. Kyl). As one court has noted:

We will not indulge in speculation about

whether Congress was right to come to the

conclusion that it did. We simply note that

Congress has the fact-finding resources to

properly come to such a conclusion.

United States v. Hossein Kalani Afshari, No. CR 01-

00209(C), 2009 U.S. Dist. LEXIS 33887, at *28 (C.D.

Cal. Apr. 14, 2009) (citing JIumanitarian Law Project

v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000)).

17

1. Permitting Support for FTO Activities

Labeled “Charity” Creates an Absurd,

Unwarranted Exception.

IILP’s position leads to the confounding result

that the terrorist organization itself can neuter the

Secretary’s designations simply by renaming one of

its factions “charity.” See United States v. Brown, 333

U.S. 18, 27 (1948); United States v. Turkette, 452 U.S.

576, 580 (1981). If Congress cannot proscribe assis-

tance to factions of a designated terrorist organiza-

tion labeled “charity,” then Congress cannot pro-

scribe assistance effectively.

Debating the ban on material support in 1995,

Congress recognized that terrorist groups operating

“under the cloak of humanitarian or charitable exer-

cise” had already established footholds in the United

States. H.R. REP. NO. 104-383, at 43 (1995). This

foothold allows FTOs, whether “acting through affili-

ated groups or individuals,” to “raise significant

funds within the United States ... .” AEPDA, §

301(aX6). A recently exposed example of this foothold

is the Alavi Foundation. Incorporated in the United

States as a charitable organization in 1973, Alavi

Foundation’s stated mission was to promote under-

standing of Islamic culture. See

www.alavifoundation.org/page03.shtml. The founda-

tion’s assets were recently seized after federal agents

discovered that the foundation was funneling money

into Iran’s nuclear program. Michael B. Farrell,

Alavi Foundation Complaint Comes at Delicate Time

for US, Iran, CHRISTIAN SCIENCE MONITOR (Nov. 12,

2009), at www.cxmonitor.com/2009/1113/ po2s17-

usfp.html.

18

Another example, the Holy Land Foundation for

Relief and Development, was the largest Muslim

charity in the United States, collecting $13 million in

the year 2000 alone, purportedly to assist needy Pal-

estinians. In truth, it was funneling funds to HAMAS,

a designated terrorist organization. U.S. Gen. Ac-

counting Office, Report to Congressional Requesters:

U.S. Agencies Should Systematically Assess Terror-

ists’ Use of Alternative Financing Mechanisms, GAO-

04-163, 14 (2003) at http://www.nbr.org/publications/

analysis/ pdf/ voll4no5.pdf (“GAO Report”); see Holy

Land Foundation for Relief and Development v. Ash-

croft, 333 F.3d 156 (D.C. Cir 2003); United States v.

Abdulgader, 2009 U.S. Dist. LEXIS 25011 (N.D. Tex.

Mar. 26, 2009.)

As illustrated by the above examples, terrorist

groups understand that a strong public relations

campaign is critical to their success. See BRUCE

HOFFMAN, INSIDE TERRORISM 3-15 (Columbia Univer-

sity Press 2005). Indeed, the brand “terrorist” has

become so negative that the terrorists themselves

avoid it with rectitudinous labels that belie their true

purpose. /d., at 21. “Al Qaeda,” for example, has been

translated as “base,” “foundation,” “precept,” or

“method.” Jd., at 22.

The material support statute therefore eschews

reliance on terrorists’ self-description and focuses in-

stead on violence. A designated terrorist organization

is one that “engages in terrorist activity . . . or terror-

ism... or retains the capability and intent to engage

in torrerist activity or terrorism.” 8 U.S.C. § 1189

(2009). This definition recognizes that whatever po-

litical or religious cause the terrorist organization

19

declares, whatever humanitarian activities the or-

ganization engages in, the organization exists to per-

petrate violence. To effectively curtail FTO fundrais-

ing,!° Congress determined that all contributions—

even those purported to advance allegedly lawful

functions of a terrorist organization—be prohibited:

This section recognizes the fungibility of fi-

nancial resources and other types of material

support. Allowing an individual to supply

funds, goods, or services to an organization, or

to any of its subgroups that draw significant

funding from the main organization’s treasury,

helps defray the cost to the terrorist organiza-

tion of running the ostensibly legitimate ac-

tivities. This in turn frees an equal sum that

can then be spent on terrorist activities.

H.R. REP. 104-383, at 81.

As this Court has recognized, the fungibility of

money makes financial sanctions an appropriate na-

tional security tool to weaken opponents. In Regan v.

Wald, 468 U.S. 222, 243 (1984), this Court upheld

the State Department’s limitations on travel to Cuba,

noting that such limitations would “curtail the flow

of hard currency to Cuba — currency that could then

be used in support of Cuban adventurism.” Jd. Simi-

larly, the purpose behind provisions permitting sei-

zure of alien property in a time of emergency is “to

'0 Dismantling terrorist funding mechanisms is “essential,” to

disrupt FTO operations and limit their ability to attack. Finan-

cial Action Task Force, Terrorist Financing |FATFA/OECD) at 7

(Feb. 29, 2008) available at http//www.fatf-

gafi.org/datavecd/28/43/ 40285899. pdf.

20

weaken enemy countries by depriving their support-

ers of power to give aid.” Farbwerke Vormals Meister

Lucius & Bruning v. Chemical Foundation, Inc., 283

U.S. 152, 161 (1931); see also Silesian-American Corp.

v. Clark, 332 U.S. 469, 476-477 (1947).

More recently, the United Nations recognized the

importance not only of freezing financial assets and

economic resources but also of prohibiting the provi-

sion of funds, assets, or “financial or other related

services” available to terrorists or “entities owned or

controlled” by terrorists. S.C. Res. 1373 4 1, U.N. Doc.

S/Res/1373 (Sept. 28, 2001). States were thus in-

structed to “refrain from providing any form of sup-

port, active or passive,” to terrorists. Jd. It is now

well accepted that criminalizing the provision of

funds to terrorist organizations is a powerful tool for

prevention of terrorist acts. United Nations Counter-

Terrorism Implementation Task Force [CTITF),

Working Group Report: Tackling the Financing of

Terrorism, q 9, (October 2009), at

http://www.un.org/terrorism/pdfs/CTITF_financing_ E

NG_final.pdf.

Non-monetary work or services provided to these

terrorists can be as good as cash, allowing the or-

ganization to defray costs of its overt activities, di-

vert funds to the purchase of arms, and free up per-

sonnel for missions of terror. The provision of per-

sonnel and services lends credibility to the terrorist

organization, which in turn assists with recruitment,

radicalization, and grassroots support. As noted by

the Financial Action Task Force, “propaganda and

ostensibly legitimate social or charitable activities

are needed to provide a veil of legitimacy.” Financial

21

Action Task Force, Terrorist Financing at 7 (Feb. 29,

2008) at http://www.fatf-gafi.org/dataoecd/28/43/

40285899.pdf (“Terrorist Financing”).

2. Charitable Donations Are A Mainstay

of Terrorist Financing

The nature of the terrorist organization is unaf-

fected by its label, but its potential donors are greatly

influenced by words. Few people will knowingly pro-

vide assistance to terrorists, but countless individu-

als donate to charities each year--often without

knowledge of where their money eventually goes. Id.,

at 13, n. 12. The combination of a large and steady

source of money and lack of financial oversight make

charitable organizations fertile soil for terrorist fund-

raising. GAO Report at 13-14.

It is well documented that terrorist organizations

use charities—pre-established or of their own crea-

tion—to raise funds. GAO Report at 13-14; Terrorist

Financing at 8, 12; Zachary Abuza, NBR Analysis,

Funding Terrorism in Southeast Asia: The Financial

Network of Al Qaeda and Jemaah Islamiyah, Vol. 14,

No. 5, at 7-8 (December 2003),

http://www.nbr.org/publications/analysis/pdf/vol14no

5.pdf. So widespread is terrorism’s abuse of charita-

ble organizations that the Financial Action Task

Force found “the misuse of non-profit organisations

|sic] for the financing of terrorism is coming to be

recognised [sic] as a crucial weak point in the global

struggle to stop such funding at its source.” Terrorist

Financing, supra, at 11. The trend is not new; Al

Qaeda began manipulating charities in the late

1990’s by installing terrorists into leadership roles of

various charitable organizations. Abuza, supra at 22.

22

The move was so successful that charity has been de-

scribed as Al Qaeda’s financial backbone. Id., at 8.

International terrorist organizations such as The

Kurdistan Workers’ Party, the Liberation Tigers of

Tamil Eelam (“LTTE”), Hamas, and their ilk system-

atically conceal their violent activities behind chari-

table, social, and political fronts. The idea that there

is a distinction between an FTO’s violent and its

“humanitarian” work is a myth. A former FBI coun-

terterrorism intelligence analyst confirms that there

is no division of terrorist goals as an FTOs overt, “le-

gitimate” activities are central to recruiting, indoc-

trinating, training, funding, and “dispatch[ing] sui-

cide bombers to attack civilian targets.” MATTHEW

LEVITT, HAMAS: POLITICS, CHARITY, AND TERRORISM

IN THE SERVICE OF JIHAD, 6 (Yale University Press

2006).

Inside the Palestinian territories, for example,

Hamas operates mosques, schools, orphanages, and

summer camps. The benevolent facade hides a sinis-

ter intent:

Hamas uses the mosques and hospitals it

maintains as meeting places, buries caches of

arms and explosives under its own kindergar-

ten playgrounds, uses social-welfare opera-

tives’ cars and homes to ferry and hide fugi-

tives, and transfers and launders funds for

terrorist activity through local charity commit

tees.

LEVITT, supra at 6; see also 153 CONG. REC. S15876

(daily ed. Dec. 18, 2007) (statement of Sen. Kyl). The

23

internet can be manipulated as well. LTTE estab-

lished its first internet site, TamilNet.com, in 1995.

HOFFMAN, supra at 204. After the Sri Lanka tsunami

in December 2004, LTTE’s web sites contained links

to information about relief efforts, encouraging

would-be donors to “contact your nearest Tamils Re-

habilitation Organisations [sic] office.” Jd. at 205.

The Tamils Rehabilitation Organization “is the pre-

ferred means for sending funds from the United

States to the LTTE in Sri Lanka,” and was desig-

nated as a terrorist organization for the purpose of

freezing its assets in November 2007. Press Release

U.S. Dep't. of the Treas., Treasury Targets U.S.

Front for Sri Lankan Terrorist Organization, TG-22

(Feb. 11, 2009). Its sister organization, the Tamil

Foundation, was recently named a terrorist organi-

zation as well. Jd. These links are no coincidence;

FTO’s understand the power of charity. In 1993, fed-

eral law enforcement officials undertook surveillance

of a meeting in Philadelphia amongst members of the

Palestine Committee. During the meeting, the lead-

ers discussed how best to utilize the United States as

a safe and lucrative place for fundraising and propa-

ganda, stressing that the capabilities for fund-raising

in America were amplified by its “democratic envi-

ronment.” Conference attendees recognized that ef-

fective fundraising in America required an agreeable

disguise. See Transcript of Trial at Vol. 15, 103:13—

04:2, United States v. Holy Land Found. for Relief &

Dev., 2007 WL 1452489 (N.D. Tex. 2008) (No. 3:04-

CR-240-P). As one member of the Palestine Commit-

tee suggested:

[L]let’s stay ahead of the events, our broth-

ers. ...{WJe should start right now, my broth-

24

ers, begin thinking about establishing alterna-

tive organizations which can benefit from a

new atmosphere, ones whose Islamic hue is

not very conspicuous.

Id.

These new organizations would support the fami-

lies of the martyrs, but the members knew this would

be unpalatable in the United States. See Transcript

of Trial at Vol. 11, 67-68, United States v. Holy Land

Found for Relief & Dev., 2007 WL 1452489 (N.D. Tex.

2008) (No. 3:04-CR-240-P). Thus they determined

they would mask their goal under the banner of hu-

man rights—care for all Palestinians. “Our relation-

ship with everyone must be good but we gave the

Islamists $100,000 and we give others $5,000.” Id., at

Vol. 14, 169:21-170:1.

In response to the Philadelphia meeting, numer-

ous Islamic charities were chartered in the United

States and throughout the world, operating as front

groups for Hamas. Many have since been investi-

gated, indicted, and convicted for their roles in fun-

neling financial and other resources to Hamas and

other designated terrorist organizations. For exam-

ple:

e The Holy Land Foundation for Relief and Devel-

opment claimed to be supporting humanitarian

efforts in the Palestinian territories, but the FBI

claimed that Holy Land Foundation funds were

used by Hamas to indoctrinate children into ca-

reers as suicide bombers. Memorandum from

Dale Watson, Assistant Director for Counterter-

rorism, FBI, to R. Richard Newcomb, Director of

25

the office of Foreign Assets Control, “Holy Land

Foundation for Relief and Development, Interna-

tional Economic Emergency Powers Act, Action

Memorandum,” U.S. Department of the Treasury

16-18, 27 (Nov. 5, 2001) available at

http://fletcher.tufts.edu/forum/archives/pdfs/27-

lpdfs/Levitt3.pdf, n. 17. “[B]y providing these an-

nuities to families of Hamas members, the

HLFRD assists Hamas by providing a constant

flow of suicide volunteers and buttresses a terror-

ist infrastructure heavily reliant on moral sup-

port of the Palestinian populace.” Id.

The Global Relief Foundation publicly claimed to

be a humanitarian relief organization, but pro-

duced and distributed a pamphlet in 1995 which

reads: “God equated martyrdom through jihad

with supplying funds for the jihad effort. All con-

tributions should be mailed to GRF.” Press Re-

lease, U.S. Dep’t. of the Treas., Treasury Depart-

ment Statement Regarding the Designation of the

Global Relief Foundation PO-3553 (Oct. 18, 2002).

GRF “has connections to, has provided support for,

and has provided assistance to Usama Bin Ladin,

the al Qaida Network, and other known terrorist

groups.” /d.

The Islamic Committee for Palestine was a self

described “humanitarian” group which served as

a front organization for Palestinian Islamic Jihad.

Progress Since 9/11: The Effectiveness of the U.S.

Anti-Terrorist Financing Efforts: Hearing before

the House Comm. on Financial Services, Sub-

comm. on Oversight and Investigations, Serial No.

108-10 at 30, 73 (March 11, 2003) (Statement of

26

Steven Emerson, Director, The Investigative Pro-

ject). At an ICP-organized Chicago conference

held in 1990, one speaker enumerated the “opera-

tions” carried out by Islamic Jihad “martyrs” in

Palestine and solicited funds for the families of

the terrorists.

Id.

These examples underscore what is already

known: terrorists cannot be expected to provide

truthful discourse about their activities, nor seques-

ter violence from public service. Groups will build

schools, hospitals, and roads in order to win the pub-

lic support, but any humanitarian effort exploited by

terrorists is charity in name only. Rather than miti-

gate the violence that these groups promote, their

humanitarian projects advance their destructive

agendas.!!

This type of deception by regulated individuals or

groups is nothing new. This Court has refused to al-

low designated enemy nationals to avoid the law by

subterfuge. Like terrorists hiding behind charity, en-

emy nationals who used shams to hide their interest

in assets were “neutral in name only” and could not

1! AEDEPA defines terrorism as “premeditated, politically mo-

tivated violence perpetrated against noncombatant targets by

subnational groups or clandestine agents.” 22 U.S.C. § 2656f{d).

The United States Department of Defense defines it as: “The

calculated use of unlawful violence or threat of unlawful vio-

lence to inculcate fear; intended to coerce or to intimidate gov-

ernments or societies in the pursuit of goals that are generally

political, religious, or ideological.” Department of Defense, Dic-

tionary of Military and Associated Terms 550 (Aug. 19, 2009) at

http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf; see also

HOFFMAN, supra, at 31.

27

escape their “enemy taint.” Uebersee Finanz-

Korporation, A. G. v. McGrath, 343 U.S. 205, 211

(1952) (petitioner neutral in name only due to pre-

dominant influence of enemy national); Stoehr v.

Wallace, 255 U.S. 239, 251 (1921).

If the Court adopts the view of the Ninth Circuit

—that it is possible to donate to “good” parts of a ter-

ror organization without benefiting the “bad”—then

we will reach “the brink of a precipice of absurdity.”

See AT&T Corp. v. Hulteen, S. Ct. 1962, 1980 (2009).

Viewing an organization such as Iezbollah in terms

of charity without regard to its terrorist arm is “to

think of something which is inextricably related to

some other thing and not think of the other thing.” Jd.

Congress avoided this absurd result by proscribing

all support. To do anything less renders the ban on

material support meaningless and permits terrorists

to manipulate not only our charity, but our law as

well.

Ill. SECTION 2339B DOES NOT UNCON-

STITUTIONALLY INFRINGE UPON PRO-

TECTED SPEECH

Though the First Amendment provides founda-

tional rights, it is only one part of an entire Constitu-

tion. This Court has never adopted the view that ab-

solutism for the First Amendment should come at the

cost of the Constitution’s other provisions.

In the instant case, First Amendment absolutism

cannot come at the cost of preventing the political

branches from fulfiiling their constitutionai duty to

protect and defend the nation. While the statute at

issue does not escape constitutional scrutiny by this

28

Court altogether, “it is part of the process of constitu-

tional scrutiny to recognize when the Constitution

itself requires special deference.” Rostker v. Goldberg,

453 U.S. 57, 67 (1981).

Respondent argues that section 2339B could con-

ceivably restrict the ability of U.S. citizens to express

their ideas, in violation of the First Amendment. This

Court has several reasons to reject this claim. First,

the statute is designed to prohibit “supporting” and

“aiding” terrorists. This is conduct. Unless the con-

duct itself is expressive, this Court has held, and

should continue to hold, that a First Amendment

analysis is inappropriate. Second, even if section

2339B does touch upon free speech, the statute suffi-

ciently advances an important government interest

and is narrowly tailored to pass intermediate scru-

tiny. United States v. O’Brien, 391 U.S. 367 (1968).

And third, even if this Court decided to apply strict

scrutiny, section 2339B is constitutional because the

interest is compelling, the need is great, and the

statute is narrowly limited to providing “service” or

“support” to groups which have a stated goal of kill-

ing U.S. citizens.

A. The Material Support Statute Regulates

Conduct, Not Speech, and Incidental Re-

strictions on Speech Do Not Trigger First

Amendment Scrutiny.

The First Amendment acts as a shield against

those who would stifle the free expression of ideas.

But the shield is not an all-encompassing aegis, ap-

plicable wherever words are spoken. To the contrary,

“it has never been deemed an abridgment of freedom

of speech or press to make a course of conduct illegal

29

merely because the conduct was in part initiated,

evidenced, or carried out by means of language, ei-

ther spoken, written, or printed.” Rumsfeld v. Forum

for Academic and Institutional Rights, Inc. (“FAIR”)

547 U.S. 47, 62 (2006) (quoting Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 502 (1949)). Because

individuals are still free to verbally endorse the ideas

advanced by these terrorist organizations, the stat-

ute does not affect free speech, and this Court should

hold that section 2339B does not implicate the First

Amendment. See id., at 61-62.

If a statute restricts conduct rather than directly

limiting speech, it only implicates the First Amend-

ment if it impairs actions that are “inherently ex-

pressive.” /d., at 66. Even if expressive, conduct may

still not be protected by the First Amendment if

“[t]he expressive component... is not created by the

conduct itself but by the speech that accompanies it.”

Id. In other words, the action being restricted must

have an expressive element.

It is quite clear Congress did not want to ban

“speech” or “association” but rather the conduct of

aiding terrorism more generally. United States v.

Taleb-Jedi, 566 F.Supp.2d 157, 167 (2008).

Here, supporters of Hizballah, PKK, LTTE or any

other FTO are free to discuss and even advocate for

these groups and not run afoul of section 2339B.

They could purchase ads, publish articles, give

speeches, lobby Congress, and file amicus briefs that

espouse the exact same political positions as those

held by terrorist groups. During World War II, for

example, Congress and the President could legiti-

mately ban the U.S. operations of Germany’s Nazi

30

Party, even if the First Amendment allowed speech

through other conduits that advocated a negotiated

settlement with the Axis powers. But under respon-

dent’s position, the Constitution would require the

political branches, in wartime, to allow the Nazi

party to raise money and organize in the United

States itself.

This Court has never read the Constitution to re-

quire such an absurd result. Congress’s interest is in

preventing the harm to United States civiliians—not

the suppression of free expression. Therefore, even if

“knowingly providing material support” involves

words, it is not an expression that the First Amend-

ment was designed to protect. !?

B. If The Court Finds Speech Rights Are Im-

plicated, The O’Brien Intermediate Scru-

tiny Standard Is Still Satisfied

Even if this Court holds that ‘ree speech was di-

rectly affected, free speech is not the target of section

2339B and as such strict scrutiny is inappropriate.

Rather, if free speech is implicated at all, the correct

test is that of United States v. O’Brien, 391 U.S. 367

(1968).

12 When Constitutional challenges to the Internal Security Act

of 1950 (in part, whether membership in Couununist Party

could be a criminal violation), analysis turned on whether “the

membership clause, as here construed, does not cut deeper into

the freedom of association than is necessary to deal with ‘the

substantive evils that Congress has a right to prevent.” Scales

v. United States, 367 U.S. 203, 229 (1961).

31

If government conduct indirectly affects free

speech, “a sufficiently important governmental inter-

est in regulating the non-speech element can justify

incidental limitations on First Amendment free-

doms.” Id., at 376. An incidental free speech limita-

tion is constitutional if:

[1] it is within the constitutional power of the

government; [2] if it furthers an important or

substantial government interest; [3] if the gov-

ernment interest is unrelated to the suppres-

sion of free expression; and [4] if the incidental

restriction on alleged First Amendment free-

doms is no greater than is essential to the fur-

therance of that interest.

Id., at 376-77.

In O’Brien, this Court considered whether the

burning of a draft card was protected expression. It

concluded that Congress’s ability to raise and sup-

port armies is so “broad and sweeping” as to out-

weigh any conceivable First Amendment violation.

Id., at 375-76. This Court should reach a similar

judgment with the material assistance statute: the

political branches’ ultimate duty to protect the Na-

tion from external attack outweighs any alleged First

Amendment interests.

In FAIR, this Court affirmed that O’Brien applies

when conduct is “inherently expressive.” FAIR, 547

U.S., at 66. The test makes sense. O’Brien accurately

weighs the importance of protecting speech (even if it

is only incidentally being suppressed) with the im-

portance of the government action in each case. Here,

32

protecting free speech must be balanced against the

discretion lodged in the Legislative and Executive

branches regarding foreign affairs, where “judicial

deference ... is at its apogee.” Jd. at 58 (quoting

Rostker, 453 U.S., at 67).

Applying O’Brien, the government's overriding

and compelling objective of defeating terror justifies

any incidental restrictions. The government interest

is at a Minimum “important” or “substantial,” see id.,

at 376, as “[iJt is obvious and unarguable that no

government interest is more compelling than the se-

curity of the Nation.” Haig v. Agee, 453 U.S. 280, 307

(1981). Nor is the statute intended to restrain speech:

Section 2339B does not prohibit the expression of

ideas similar to the designated terrorist groups, but

rather seeks to avoid the manifestation of those ideas

in violence. Cf. City of Erie v. Pap’s A.M., 529 U.S.

277, 293 (2000).

Section 2339B extends no further than is essen-

tial to address national security. It “does not restrict

a person’s right to join an organization.” H.R. REP.

104-383, at 43. Nor is an individual restricted from

freely expressing an ideology or political philosophy.

Id., at 45. “Those inside the United States will con-

tinue to be free to advocate, think, and profess the

attitudes and philosophies of . . . foreign organiza-

tions [designated FTO’s].” Jd. Courts have been care-

ful to distinguish between “groups that ... merely ad-

vocate terror, violence, and murder of innocents” and

those that “actually carry out what they advocate,” so

that the court can draw a “clear line between First

Amendment protected activity and criminal conduct

for which there is no constitutional protection.”

33

United States v. Lindh, 212 F. Supp 2d 541, 568

(E.D.Va. 2002).

Section 2339B satisfies the O’Brien factors, and

passes First Amendment scrutiny.

C. The Material Support Statute Survives

Even Strict Scrutiny, as National Security

is the Utmost Compelling Interest and The

Statute is Narrowly Tailored to Protect

The Nation from International Terrorism

In national security and foreign affairs, the strict

scrutiny standard is ill-suited to this Court’s long-

standing deference to the Legislative and Executive

branches. See Rostker, 453 U.S., at 67. Strict scrutiny

is particularly inappropriate where, as here, the gov-

ernment does not restrict activity because of the con-

tent or viewpoint of speech. However, even if the

Court applies strict scrutiny, section 2339B remains

constitutional. Preventing terrorism and weakening

terrorist groups is a compelling interest. Preventing

aid and support to those groups serves that interest.

And, despite wide-ranging hypotheticals to the con-

trary, section 2339B was designed to allow speech,

advocacy, and other domestic expression. No intui-

tive reading suggests otherwise.

1. Preventing Aid to Terrorists Is A

Compelling Government Interest

“[N]o governmental interest is more important

than the security of the Nation.” Haig v. Agee, 453

U.S. 280, 307 (1981). In the 21st century, the Execu-

tive has made clear that the most significant exter-

nal threat is global terrorism:

34

Terrorist networks currently pose the greatest

national security threat to the United

States... . The enemy is a federated terrorist

threat complex with the character of a global

insurgency. ...

See Statement, Department of State, Office of the

Coordinator for Counterterrorism, available at

http://www.state.gov/s/ct/enemy/index.htm (last

visited December 22, 2009).

Congress concurred with the Executive’s descrip-

tion of the terrorist threat when it passed the Anti-

Terrorism and Effective Death Penalty Act, which

contains section 2339B, noting that international

terrorism “threatens the vital interests of the United

States.” See Antiterrorism and Effective Death Pen-

alty Act of 1996, § 301(a)(1) & (7), 18 U.S.C. § 2339B

note (1996).

No decision by this Court has held that national

security, when dealing with a clear and present

threat, is anything other than compelling. The Court

must not deviate here, where the country has been

directly attacked by terrorist groups in two of its ma-

jor cities and lost almost 3,000 civilian lives.

2. The “Narrowly Tailored” Prong Must

Be Applied in The Context of the Un-

predictable and Dangerous Realm of

Foreign Affairs.

Whether or not a government action was suffi-

ciently “tailored” must depend on the context in

which the action was taken. When it comes to areas

where the Executive and Legislative branches have

35

greater expertise or knowledge, such as creating the

Army or Navy, there is significantly more deference

to those branches’ choices: “The issue is not whether

other means of raising an army and providing for a

navy might be adequate.” FAIR, 547 U.S. at 67.

“Regulations are not invalid simply because there is

some imaginable alternative that might be less bur-

densome on speech.” United States v. Albertini, 472

U.S. 675, 689 (1985).

Because a judge is less capable of identifying and

neutralizing terrorist threats, “[t]he validity of such

regulations does not turn on a judge’s agreement

with the responsible decisionmaker concerning the

most appropriate method for promoting significant

government interests.” Albertini, 472 U.S. at 689 In-

deed:

In Community for Creative Non-Violence, [468

U.S. 288, 299 (1984)] we observed that O’Brien

does not assign to the judiciary the authority

to replace the Park Service as the manager of

the Nation’s parks or endow the judiciary with

the competence to judge how much protection

of park lands is wise and how that level of con-

servation is to be attained. We are even less

disposed to conclude that O’Brien assigns to

the judiciary the authority to manage military

facilities throughout the Nation.

Id. (internal citations and quotation marks omitted).

Before determining whether section 2339B is nar-

rowly tailored, this Court should recognize that a

large amount of deference is due—and the other

36

branches decided that section 2339B is the best way

to prevent aid to terrorists.

3. Preventing All Aid, Support, or Assis-

tance to Terrorist Groups is an Ap-

propriate Response to a “Terrorist

Threat

Perhaps in no other area has the Court accorded

Congress greater deference than in cases that arise

in the context of Congress’s authority over national

defense and military affairs. Rostker, 453 U.S., at 64-

65. In times of war, as now, this deference is even

more pronounced. Courts have deferred to wartime

actions of the political branches even when such ac-

tions have directly infringed speech-related liberties

of individuals. For example, in Schenck v. United

States, this Court upheld the treason convictions of

several men who had distributed subversive, anti-

war literature during World War I. 249 US. 47, 48-

49 (1919). This Court held that distributing litera-

ture which encouraged resistance to the draft pre-

sented a sufficient danger to national security that it

was not entitled to First Amendment protection. /d.,

at 51-53. This Court further stated: “When a nation

is at war many things that might be said in time of

peace are such a hindrance to its effort that their ut-

terance will not be endured so long as men fight and

that no Court could regard them as protected by any

constitutional right.” Jd., at 52. As this Court further

explained in Near v. Minnesota, 283 U.S. 697, 716

(1931): “No one would question but that a govern-

ment might prevent actual obstruction to its recruit-

ing service or the publication of the sailing dates of

transports or the number and location of troops.” In

37

United States v. Progressive, Inc., a federal district

court enjoined the publication of a “how-to” guide for

making a hydrogen bomb. 467 F. Supp. 990 (W.D.

Wis. 1979). Citing Near, the district court stated that

“grave national security concerns... are sufficient to

override First Amendment interests.” Progressive,

467 F. Supp. at 992; see also Near, 283 U.S., at 716.

This deference does not end with foreign affairs.

Indeed, there are many cases where incidental free

speech concerns give way to the needs of government.

For example, when balancing speech rights and pub-

lic safety, this Court established that a criminal

statute enacted for the legitimate purpose of deter-

ring criminal activity does not violate the First

Amendment if individuals decide to censor them-

selves. Ft. Wayne Books, Inc. v. Indiana, 489 U.S. 46,

59-60 (1989). The petitioner in that case argued that

the Racketeer Influenced and Corrupt Organizations

Act (“RICO”) unconstitutionally chills First Amend-

ment freedoms because its “draconian” sanctions in-

tended for use as “heavy artillery” for the “war on

crime” will compel adult booksellers to remove First

Amendment protected content from their shelves to

avoid potential prosecution. Jd., at 59-60. The Court

disagreed: “[MJere assertion of some possible self-

censorship resulting from a statute is not enough to

render an anti-obscenity law unconstitutional under

our precedents.” /d., at 60.

Nor is section 2339B unconstitutional merely “be-

cause a court concludes that the government's inter-

est could be adequately served by some less-speech-

restrictive alternative.” See Ward v. stock Against

Racism, 491 U.S. 781, 799 (1989). Striking down Sec-

38

tion 2339B for some potentially more narrow defini-

tion would substitute this Court’s judgment for that

of the political branches about the most effective way

to conduct war.

Section 2339B furthers the most compelling of

government interest - preventing future attacks on

the Nation. Any particular instances of speech pro-

hibited by Section 2339B are insubstantial compared

to the duty of the government to protect the nationai

security in time of war.

CONCLUSION

The decision of the court below should be reversed.

39

DATED: December 29, 2009.

Respectfully submitted,

HON. EDWIN MEESE III

214 Massachusetts Ave., NE

Washington, DC 20002

ANDREW C. MCCARTHY

233 Pennsylvania Ave., SE

3rd Floor

Washington, DC 20003

DAVID B. RIVKIN, JR.

Baker Hostetler

1050 Washington Square

Suite 1100

1050 Connecticut Ave., NW

Washington, DC 20036

CASEY J. MCTIGUE

Severson & Werson, P.C.

One Embarcadero Center

Suite 2600

San Francisco, CA 94111

MICHELLE J. CONTOIS

800 S. Victoria Ave.

Suite 314

Ventura, CA 93009

JOHN C. EASTMAN

Counsel of Record

JOHN C. YOO

KAREN J. LUGO

RYAN T. DARBY

Center for Constitut’l

Jurisprudence

c/o Chapman Univ.

School of Law

One University Drive

Orange, CA 92886

(714) 628-2500

Counsel for Amici Curiae

Center for Constitutional Jurisprudence

and Center for Law and Counterterrorism