Author:International Law Group

Changes made to the Antiterrorism and Effective Death Penalty Act cured some, but not all, of previous defects the Ninth Circuit found in the statute; although amendments that changed the scienter required under AEDPA satisfy constitutional requirements, some terms continue to render provisions of it void on vagueness grounds


In the following case, six organizations and some individuals seek to support two organizations that have been labeled "terrorist." They challenge the constitutionality of sections 302 and 303 of the Antiterrorism and Effa ective Death Penalty Act and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act.

Section 302(a) of the Antiterrorism and Effa ective Death Penalty Act ("AEDPA") authorizes the secretary of state to designate overseas groups as foreign terrorist organizations ("FTOs"). Other provisions of the statute provide criminalize conduct that aids these groups in any of their activities, including the nonviolent and humanitarian services they provide. In 1997, then-Secretary of State Madeline Albright designated to the Kurdistan Worker's Party (the PKK) and the Liberation Tigers of Tamil Eelam (the LTTE) as FTOs for their terrorist activities carried out in Turkey and Sri Lanka.

The Plaintiffas have brought forward two previous suits challenging this same statute, seeking as they do now, to be permitted to provide aid to both the PKK and the LTTE. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001); see also Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir. 2003), vacated, 393 F.3d 902 (9th Cir. 2004). Prior to the groups' designation as FTOs in 1997, Plaintiffa had furnished support to them for their lawful activities, but withdrew from such activities for fear of criminal prosecution. In their fi rst case, Plaintiffas challenged AEDPA as being unconstitutional for 1) violating their First and their Fifth Amendment rights to freedom of association and due process because the statue imposed criminal penalty for their association with the designated organizations without requiring the government to prove that Plaintiffas had the specifi c intent to further the designated organizations' unlawful goals; 2) violating their First Amendment right to association by prohibiting them from making political contributions to the designated organizations; and (3) violating their First and Fifth Amendment rights because it gave the Secretary of State unfettered licensing power to designate a group as a foreign terrorist organization. [¶ 24] The district court found for the plaintiffa s on only the second challenge, rejecting the rest.

Following the fi rst case, "Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required...

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