Hearing Aids Oklahoma City - Terrorism Law Held Constitutional
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Founded in 1974, the Partiya Karkeran Kurdistan (Pkk) was established as a Marxist-Leninist insurgent group composed of Turkish Kurds who formed to seek Kurdish independence from Turkey. By the late 1990s the group had had morphed from a rural-based insurgent group into a full-fledged terrorist organization, sometimes using suicide bombings on civilian targets.
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Founded in 1976, the Liberation Tigers of Tamil Eelam (Ltte) became one of the most lethal and well organized terrorist groups in the world that, starting in 1983, waged an armed campaign in Sri Lanka to originate a separate Tamil homeland before the group was defeated by the Sri Lanka army in May 2009. The Ltte pioneered the use of suicide belts.
Both groups are designated as Foreign Terrorist Organizations by the U.S division of State.
The evidence is clear that the Pkk and Ltte have engaged in terrorist activities, together with suicide bombings, which have harmed innocent civilians. It was these kinds of international terrorist acts and the 1995 Oklahoma City bombing that prompted the U.S. Congress to enact the Anti-Terrorism and productive Death Penalty Act (Aedpa) which was signed into law by previous President Bill Clinton in April 1996.
One of the controversial components of Aedpa was codified at 18 U.S.C. 2339B which makes it a federal crime to provide "material retain or resources to designated foreign terrorist organizations." While Congress has amended the definition of "material retain or resources" a whole of times since 1996, Subsection 2339A (b) (1) offers the current definition:
"[T]he term 'material retain or resources' means any property, tangible or intangible, or service, together with currency or monetary instruments or financial securities, financial services, lodging, training, specialist guidance or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or contain oneself), and transportation, except treatment or religious materials."
Another component of Aedpa, the authority to prescription an entity as a "foreign terrorist organization," was codified at 8 U.S.C. 1189(a) (1), (d) (4). This authority rests with the Secretary of State who, after consultation with the Secretary of Treasury and Attorney General, must determine either the assosication is foreign, engages in "terrorist activity" or "terrorism," and "threatens the security of United States nationals or the national security of the United States."
In 1997 previous Secretary of State Madeleine K. Albright designated 30 groups as foreign terrorist organizations. Two of the groups on that list were Pkk and Ltte.
The Humanitarian Law Project, which was founded in 1985 and is "dedicated to protecting human possession and promoting the peaceful resolution of conflict by using established international human possession law and humanitarian law," filed a lawsuit in 1998 captivating the "material retain or resources" provisions of § 2339B. The lawsuit's long convoluted history found its way to the U.S. Supreme Court and, on June 21, 2010, that court in possessor v. Humanitarian Law scheme upheld the constitutionality of the terrorism statute.
The Humanitarian Law scheme (Hlp) filed its lawsuit because, agreeing to the group, § 2339B prevented it from providing retain for the humanitarian and political activities of Pkk. This included: (1) "training members of Pkk on how to use humanitarian and international law to peacefully determine disputes"; (2) "engage in political advocacy on profit of Kurds who live in Turkey"; and (3) "teach Pkk members how to petition discrete representative bodies such as the United Nations for relief." Hlp also expensed that § 2339B prevented it from providing monetary contributions, legal training, and political advocacy for the Ltte. This included: (1) "train members of Ltte to gift claims for tsunami-related aid to mediators and international bodies"; (2) "offer their legal expertise in negotiating peace agreements in the middle of Ltte and the Sri Lankan government;" and (3) "engage in political advocacy on profit of Tamils who live in Sri Lanka."
The Hlp based its lawsuit on three constitutional challenges to 2339B: 1) it violated their First Amendment free time of speech; and 2) it violated their First Amendment free time of association. These two challenges were premised on the law that 2339B criminalized their retain to Pkk and Ltte without the Government having to prove that Hlp had a exact intent to added the unlawful ends of those groups. Finally, Hlp challenged 2339B as being unconstitutionally vague.
A central issue in the case initially focused on exactly what constituted "personnel" and training." While the lawsuit was pending, and in the wake of the 9/11 terror attacks on the Twin Towers in New York, Congress enacted the Uniting and Strengthening America by Providing approved Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Patriot Act) which amended the "material retain or resources" provision of 2339B to contain the term "expert guidance or assistance." The Hlp filed a second lawsuit, which was ultimately consolidated with the first one, captivating this amended provision as well.
In 2004, Congress once again amended the "material retain or resources" provisions of 2339B with the intelligence Reform and Terrorism arresting Act of 2004 (Irtpa). This statute clarified the "mental state" critical to violate 2339B by requiring knowledge of a group's designation as a terrorist assosication or its commission of terrorist acts before criminal charges could be brought. Irtpa also added the term "service" to the definition of "material retain or resources" and defined "training" to mean "instruction or teaching designed to retain a exact skill, as opposed to normal knowledge. Irtpa also defined "expert guidance or assistance" as "advice or assistance derived from scientific, technical or other specialized knowledge." And ultimately Irtpa clarified the reach of the term "personnel" by providing:
"No someone shall be prosecuted under [2339B] in relationship with the term 'personnel' unless that someone has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist assosication with 1 or more individuals (who may contain himself) to work under that terrorist organization's direction or operate or to organize, manage, supervise, or otherwise direct the doing of that organization. Individuals who act entirely independently of the foreign terrorist assosication to expand its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control."
The Vagueness Issue
The Supreme Court had before it four terms central to Hlr's argument that 2339B is impermissibly vague: "training," "expert guidance or assistance," "services," and "personnel." The court two years ago in United States v. Williams held a conviction under a statute that is unconstitutionally vague does not comport with the Due Process Clause of the Fifth Amendment because it "fails to provide a someone of ordinary intelligence fair consideration of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."
The Supreme Court pointed out that since 2001 the Government has expensed roughly 150 persons with violating the provisions of 2339B and convicted roughly half of them. Since Hlp did not challenge the Government's compulsion discretion of the statute, the court addressed only the issue either 2339B provides a someone of ordinary intelligence with "fair notice" of what is unlawful. The court began its pathology with the consideration that the four terms in question-"training," "expert guidance or assistance," "service," and "personnel"-did not want a subjective pathology because Congress has narrowly defined these terms over time. The Court added:
"Much of the activities in which plaintiffs seek to engage effortlessly fall within the scope of the terms 'training' and 'expert guidance or assistance.' Plaintiffs want to 'train members of [the] Pkk on how to use humanitarian and international law to peacefully determine disputes,' and 'teach Pkk members how to petition discrete representative bodies such as the United Nations for relief.' A someone of ordinary intelligence would understand the study on resolving disputes straight through international law falls within the statute's definition of 'training' because it imparts a 'specific skill,' not 'general knowledge.' Plaintiffs' activities also fall comfortably within the scope of 'expert guidance or assistance': A reasonable someone would identify that teaching the Pkk how to petition for humanitarian relief before the United Nations involves guidance derived from, as the statute puts it, 'specialized knowledge.' In fact, the plaintiffs themselves have repeatedly used the terms 'training' and 'expert advice' throughout this litigation to reveal their own proposed activities, demonstrating that these tasteless terms effortlessly and simply cover plaintiff's conduct.
"Plaintiffs rejoinder by pointing to hypothetical situations designed to test the limits of 'training' and 'expert guidance or assistance.' They argue that the statutory definitions of these terms use words of degree-like 'specific,' general,' and 'specialized'-and that is difficult to apply those definitions in single cases... Anyone force these arguments might have in the abstract, they are beside the point here. Plaintiffs do not advise to teach a procedure on geography, and cannot seek refuge in imaginary cases that straddle the boundary in the middle of 'specific skills' and 'general knowledge.'"
The Hlp had argued that it wanted to provide "political advocacy" for Kurds living in Turkey and Tamils living in Sri Lanka but because 2339B is so vague the group hesitated because it was concerned that this would constitute providing "personnel" or "service[s]" prohibited by the statute. The Court addressed these concerns as follows:
"As for 'personnel,' Congress enacted a limiting definition in Irtpa that answers plaintiffs' vagueness concerns. Providing material retain that constitutes 'personnel' is defined as knowingly providing a someone 'to work under that terrorist organization's direction or operate or to organize, manage, supervise, or otherwise direct the doing of that organization.' The statute makes clear that 'personnel' does not cover independent advocacy: 'Individuals who act entirely independently of the foreign terrorist assosication to expand its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.'
"'[S]ervice' similarly refers to concerted activity, not independent advocacy... The statute prohibits providing service 'to a foreign terrorist organization.' The use of the word 'to' indicates a relationship in the middle of the service and the foreign group. We think a someone of ordinary intelligence would understand that independently advocating for a cause is dissimilar from providing a service to a group that is advocating for that cause."
The First Amendment Issues
With respect to the speech issue, the Court pointed out that under 2339B the "plaintiffs may say Anyone they wish on any topic. They may speak and write freely about the Pkk and Ltte, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations. As the Government states: 'The statute does not prohibit independent advocacy or expression of any kind.' Section 2339B also 'does not prevent [plaintiffs] from becoming members of the Pkk and Ltte or impose any sanction on them for doing so. Congress has not, therefore, sought to suppress ideas or opinions in the form of 'pure political speech,' which most often does not take the form of speech at all. And when it does, the statute is considered drawn to cover only a narrow type of speech to, under the period of, or in coordination with foreign groups that the speaker knows to be terrorist organizations."
With respect to the relationship issue, the Hlp had argued that merely associating with the Pkk and Ltte would be criminal under 2339B. The court brushed aside this claim by pointing out that the statute "does not penalize the mere relationship with a foreign terrorist organization." The Supreme Court embraced a looking by the Ninth Circuit Court of Appeals that § 2339B did not prohibit membership in a designated terrorist assosication or the vigorous retain and promotion of the political goals of the group. The high court done its opinion, written by Chief Justice John Roberts, with the following historical admonition:
"The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to 'provide for the tasteless defence.' As Madison explained, '[s]ecurity against foreign danger is... An avowed and critical object of the American Union.' We hold that, in regulating the single forms of retain that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments."
In his dissent, joined by Justices Ginsburg and Sotomayor, Justice Stephen Breyer stated:
In my view, the Government has not made the strong showing critical to explain under the First Amendment the criminal prosecution of those who engage in [the training of organizations to use nonviolent means to achieve their goals]. We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place surface the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies.
Foreign terrorists have done far more than they intended. They forced this nation to not only combat acts of terrorism but to alter its constitutional landscape in an exertion to prevent those terrible deeds. A fight is confronted, it is waged on terms set by the combatants, and it is won or lost on a composition of skill and misfortune. But the arresting of a fight entails suspicion and paranoia because you never know who the enemy precisely is. Madison talked about "foreign danger" but purely from a military point of view-a possible invading force. That is not the "danger" presented by terrorism: it could be a foreign national or the neighbor next door. When everyone is a possible suspect, free time of speech and relationship are inevitably restricted.
In New York, Tennessee, and a host of other communities, protests are cropping up against Muslims construction their places of worship. Our fear and paranoia has grown to the extent that we see "foreign danger" in other peoples' religion-people who have been our good neighbors for years. This same fear has led our citizenry to abrogate many of its traditionally cherished, and constitutionally protected, freedoms; privacy, searches, associations and speech.
So do we precisely need statutes like 2339B? Probably so, but they should be narrowly tailored and very exact in defining the actions they seek to prevent. Unfortunately, with the creation of such statutes, and our fear-inspired acquiescence, we become less of a free nation, less of a free people. And while this drastic turn may arguable be critical for our security and survival as a nation and a people, the bitter taste it leaves going down is not easy to accept. It is incumbent on groups like Humanitarian Law scheme and the American Civil Liberties Union to stand up when they feel the government has over-stepped its Constitutionally imposed bounds, otherwise a slick slope to self imposed fascism is just colse to the corner. While we might not agree with each stand these groups take, we salute their fortitude and courage to stand.
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