Breaking news from the Judiciary as to a decision in 9th Circuit Court of Appeals. It is a breakthrough to see these statutes are at least amenable to review, which bodes ill for fanatics who assert we are all in a facist State now. I note that the Administration is going to appeal en banc, which is a strange expose of how government works. Just this morning I was reading a case of a Columbian the Feds sought to extradite knowing he would be murdered if done. Their argument? The Constitution does not forbid such acts by the Feds so let's get him killed. Although the Court found for the Columbian on slim fingernail grounds, the Feds will waste more of our money on appealing this case arguing the right of the United States to force him into being murdered. Where's the sanity of prosecutions anymore? How could they sleep at night sending him to be killed? It's more than a job, isn't it? And they are doing it. Which brings us to another reason Americans need to consider the neo-cons this Bush will place on the bench if re-elected. It took a filibuster to stop just two of his nominees, give him four more years and the Constitution is in REAL trouble. The link is to the direct Court decision in .pdf. Post comments or e-mail: wahkonta@graffiti.net

ARTICLE EXCERPT

-Caveat Lector-



[This important decision by the 9th Circuit Court of Appeals in

California will influence other courts around the country. It will

help counter the "chilling effect" of the 1996 Anti-Terrorism Act (and

indirectly, the 2001 USA Patriot Act). These laws have discouraged and

scared many people away from making badly needed contributions to

medical clinics, schools, churches, mosques, grassroots organizations,

and other humanitarian causes in countries where US-designated

"terrorist groups" are active.



More comments follow the CCR press release. David Pugh]



**************



FOR IMMEDIATE RELEASE DECEMBER 3, 2003

CONTACT: Center for Constitutional Rights,

David Cole 202-362-6473

Nancy Chang 212-614-6420



Key Provisions of Anti-Terrorism Statute Declared Unconstitutional



WASHINGTON - December 3 -The U.S. Court of Appeals for the Ninth

Circuit today declared unconstitutional significant parts of a

criminal statute barring "material support" to terrorist

organizations, and rejected the government's interpretation of the

statute as imposing liability on "moral innocents." The statute at

issue, 18 U.S.C. 2339B, has been a central tool in the Bush

administration's criminal "war on terrorism" cases, and the decision

calls into question the legality of several convictions, including

those of the Lackawanna 6, the first of whom were sentenced today.



The case, Humanitarian Law Project v. Ashcroft, involved a challenge

brought by the Center for Constitutional Rights on behalf of a human

rights organization in Los Angeles and several groups of Sri Lankan

Tamils to a statute that criminalizes "material support" to any group

designated as "terrorist" by the Secretary of State. [The Humanitarian

Law Project has provided humanitarian aid to the Kurdish Workers Party

(PKK) in Turkey.]



The Administration has argued that the statute makes it a crime to

provide material support to terrorist organizations without regard to

whether the donor knows that the organization is a designated group,

and the statute includes within the ambit of "material support" the

provision of "personnel" and "training."



Reaffirming an earlier decision in the case, the Court of Appeals held

unconstitutionally vague the statute's prohibition on the provision of

"personnel" and "training" to terrorist organizations. These are the

very terms that the Lackawanna 6 have pleaded guilty to violating by

attending an Al Qaeda training camp.



In addition, the Court firmly rejected the government's broad

interpretation of the "material support" statute. The government

argued that the statute permitted a conviction even where a donor was

unaware that a recipient organization was designated, and unaware of

the organization's unlawful acts. The Court held that this

interpretation would unconstitutionally punish "moral innocents" in

violation of due process, and therefore interpreted the statute to

require the government to prove beyond a reasonable doubt that the

donor knew the organization was designated or was aware of the

unlawful activities that led to its designation.



The Court reasoned:



Without the knowledge requirement described above, a person who simply

sends a check to a school or orphanage in Tamil Eelam run by the LTTE

could be convicted under the statute, even if that individual is not

aware of the LTTE's designation or of any unlawful activities

undertaken by the LTTE. Or, according to the government's

interpretation of 2339B, a woman who buys cookies from a bake sale

outside of her grocery store to support displaced Kurdish refugees to

find new homes could be held liable so long as the bake sale had a

sign that said that the sale was sponsored by the PKK, without regard

to her knowledge of the PKK's designation or other activities.



The court also upheld prior rulings that the material support

statute's prohibitions on the provision of "personnel" and "training"

were "void for vagueness under the First and Fifth Amendments because

they bring within their ambit constitutionally protected speech and

advocacy."



David Cole, a Georgetown University law professor and lawyer with the

Center for Constitutional Rights, who argued the case, said:



"Today's decision means that central parts of this "material support"

statutes are unconstitutional, and that the government's

interpretation of the statute cast an unconstitutionally broad net

over innocent persons. This decision will mitigate the substantial

chilling effect that this statute has cast over those who seek to

provide humanitarian aid to conflict-ridden areas.



In our view, however, the statute's flaw is even more fundamental. It

imposes guilt by association. People should be held responsible for

their own acts, and for any acts of terrorism that they support, not

for their mere "support" of a group the government has placed on a

blacklist."



Nancy Chang, the Center for Constitutional Rights staff attorney who

is working on the case, said, "The First Amendment protections that

the Ninth Circuit has put into place are especially important now that

the Patriot Act was amended to increase the penalty for the provision

of material support from ten years to 15 years and possibly a sentence

of life."



The decision is available at:

http://mailhost.groundspring.org/cgi-bin/t.pl?id=55310:134469BDE4/$file/0255082.pdf



___________________________



[This decision in HLP v. Ashcroft is a victory for international

solidarity groups. Still it's a partial one. Since the late 1980s,

CCR's lawyers have argued that a criminal prosecution for providing

material support to a designated terrorist organization should require

that the donor had a "specific intent to further unlawful ends"--that

the donor specifically intended to provide funds or other material

support for the terrorist actions of a particular group.



Instead, the 9th Circuit held that the government's burden is to prove

that a donor to a project of a terrorist-designated group (like the

Kurdish bake sale example used below) had to be aware of a group's

designation as terrorist, and of the unlawful activities that led to

its designation.



Of course, none of this will stop the government from bringing

unfounded "material support" prosecutions in order to harass activists

and bog them down in legal proceedings. There are already a number of

such cases around the country-with mostly Muslim and Arab defendants--

that should be watched carefully.



All in all, this decision will make it harder for the government to

spread fear and confusion among people in the US who donate to

humanitarian causes in areas of conflict overseas. The Justice

Department will have a harder time justifying its material support

prosecutions



According to Nancy Chang at CCR, Ashcroft's boys are unhappy with this

decision. They want to strike the "knowing" requirement altogether.

The Justice Department will probably ask the 9th Circuit as a whole to

rehear the case (en banc), or will ask the US Supreme Court to take

it.



"HLP v. Ashcroft II" is in the works, with pretty much the same

plaintiffs and attorneys. It will challenge the USA Patriot Act on

similar grounds, including its definitions of "expert advice" and

"assistance" in the material support context.



Stay tuned.--dp]