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No. 08-1498

In the Supreme Court of the United States

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,
PETITIONERS

v.

HUMANITARIAN LAW PROJECT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
JOSHUA WALDMAN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

 

QUESTION PRESENTED

Whether 18 U.S.C. 2339B(a)(1), which prohibits the knowing provision of "any * * * service, * * * training, [or] expert advice or assistance," 18 U.S.C. 2339A(b)(1), to a designated foreign terrorist organiza tion, is unconstitutionally vague.

PARTIES TO THE PROCEEDING

The petitioners are Eric H. Holder, Jr., Attorney General; the United States Department of Justice; Hill ary Rodham Clinton, Secretary of State; and the United States Department of State.

The respondents are Humanitarian Law Project; Ralph Fertig; Ilankai Thamil Sangram; Tamils of North ern California; Tamil Welfare and Human Rights Committee; Federation of Tamil Sangrams of North America; World Tamil Coordinating Committee; and Nagalingam Jeyalingam.

In the Supreme Court of the United States

 

No. 08-1498

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,

PETITIONERS

v.

HUMANITARIAN LAW PROJECT, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

 

The Solicitor General, on behalf of Eric H. Holder, Jr., Attorney General, et al., respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 32a) is reported at 552 F.3d 916. Earlier opinions of the court of appeals are reported at 393 F.3d 902, 352 F.3d 382, and 205 F.3d 1130. The opinion of the district court (App., infra, 33a-76a) is reported at 380 F. Supp. 2d 1134. Earlier opinions of the district court are re ported at 309 F. Supp. 2d 1185, 9 F. Supp. 2d 1176, and 9 F. Supp. 2d 1205.

JURISDICTION

The judgment of the court of appeals was entered on December 10, 2007. A petition for rehearing was denied on January 5, 2009 (App., infra, 3a). On March 24, 2009, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including May 5, 2009. On April 22, 2009, Justice Kennedy further ex tended the time to June 4, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu tion provides in relevant part: "No person shall * * * be deprived of life, liberty, or property, without due pro cess of law." The pertinent statutory provisions are re printed in an appendix to this petition. App., infra, 77a- 81a.

STATEMENT

1. This case involves a constitutional challenge to key provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, that aid America in its fight against terror ism. The statute authorizes the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate an entity as a "foreign terrorist organization" if she finds (1) that "the organi zation is a foreign organization"; (2) that "the organiza tion engages in terrorist activity," as defined in 8 U.S.C. 1182(a)(3)(B); and (3) that the organization's terrorist activity "threatens the security of United States nation als or the national security of the United States." 8 U.S.C. 1189(a)(1). An organization may seek judicial review of its designation by filing a petition for review in the District of Columbia Circuit. 8 U.S.C. 1189(c).

It is a criminal offense for any person within the United States or subject to its jurisdiction "know ingly" to provide "material support or resources" to a designated foreign terrorist organization. 18 U.S.C. 2339B(a)(1). The statute defines "material support or resources" as

any property, tangible or intangible, or service, in cluding currency or monetary instruments or finan cial securities, financial services, lodging, training, expert advice or assistance, safehouses, false docu mentation or identification, communications equip ment, facilities, weapons, lethal substances, explo sives, personnel (1 or more individuals who may be or include onself), and transportation, except medi cine or religious materials.

18 U.S.C. 2339A(b)(1).

In the Intelligence Reform and Terrorism Preven tion Act of 2004 (IRTPA), Pub. L. No. 108-458, § 6603(b), 118 Stat. 3762, Congress clarified several pro visions of Section 2339B, the material-support statute. In particular, IRTPA defined the term "training" to mean "instruction or teaching designed to impart a specific skill, as opposed to general knowledge." 18 U.S.C. 2339A(b)(2). It also defined "expert advice or assistance" to mean "advice or assistance derived from scientific, technical or other specialized knowledge." 18 U.S.C. 2339A(b)(3). Finally, IRTPA specified:

No person may be prosecuted under this section in connection with the term 'personnel' unless that per son has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, super vise, or otherwise direct the operation of that organi zation. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.

18 U.S.C. 2339B(h).

2. The Secretary of State has designated the Kur distan Workers' Party (PKK) and the Liberation Tigers of Tamil Eelam (Tamil Tigers or LTTE) as foreign ter rorist organizations. The PKK has not sought judicial review of its designation. See Humanitarian Law Pro ject v. Reno, 9 F. Supp. 2d 1176, 1180 (C.D. Cal. 1998). The LTTE sought judicial review, but the District of Columbia Circuit upheld its designation. See People's Mojahedin Org. of Iran v. United States Dep't of State, 182 F.3d 17 (D.C. Cir. 1999), cert. denied, 529 U.S. 1104 (2000).

a. The PKK was founded in 1974 for the purpose of establishing an independent Kurdish state in southeast ern Turkey. C.A. E.R. 20. Since its inception, the orga nization has waged a violent insurgency that has claimed over 22,000 lives. Ibid. In the 1990s, the PKK con ducted terrorist attacks on Turkish targets throughout Western Europe; it also targeted areas of Turkey fre quented by tourists. Id. at 20-21. For instance, in 1996, PKK members hijacked a bus in Turkey and kidnapped two passengers, one of whom was a United States citi zen. Id. at 21. Earlier, the PKK claimed responsibility for a series of bombings in Istanbul that killed two peo ple and wounded at least ten others, including a United States citizen. Ibid. In 1993, the PKK firebombed five sites in London. Id. at 22. In a separate incident that year, it kidnapped tourists from the United States and New Zealand and held them hostage. Ibid.

b. The Tamil Tigers were founded in 1976 for the purpose of creating an independent Tamil state in Sri Lanka. C.A. E.R. 22. The organization has used suicide bombings and political assassinations in its campaign for independence, killing hundreds of civilians in the pro cess. Id. at 22-25; see People's Mojahedin Org. of Iran, 182 F.3d at 19-20. In 1996, the Tamil Tigers exploded a truck bomb at the Central Bank in Colombo, Sri Lanka, killing 100 people and injuring more than 1400. C.A. E.R. 23. The following year, the group exploded another truck bomb near the World Trade Center in central Co lombo, injuring 100 people, including 7 United States citizens. Ibid. In 1998, a Tamil Tiger suicide bomber exploded a car bomb in Maradana, Sri Lanka, killing 37 people and injuring more than 238 others. Id. at 22. In addition, throughout the 1990s, the Tamil Tigers carried out several attacks on Sri Lankan government officials, killing the President, the Security Minister, and the Deputy Defense Minister. Id. at 24.1

3. Respondents are two United States citizens and five domestic organizations who wish to provide money and other support for what they say are lawful, nonvio lent activities of the PKK and the Tamil Tigers. They brought two separate actions, eventually consolidated in the district court, challenging the constitutionality of the material-support statute.

a. In the first action, respondents raised several constitutional challenges to the statute, including the assertion that the terms "training" and "personnel" are unconstitutionally vague. The district court rejected all of respondents' constitutional arguments except for the vagueness challenge, and it entered a preliminary injunction barring the enforcement of the challenged provisions against respondents with respect to the PKK and the LTTE. Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1176 (C.D. Cal. 1998), and 9 F. Supp. 2d 1205 (C.D. Cal. 1998). The court of appeals affirmed the preliminary injunction on the same ground. Humani tarian Law Project v. Reno, 205 F.3d 1130, 1137-1138 (9th Cir. 2000). Respondents petitioned for a writ of certiorari, seeking review of the rejection of their other constitutional claims, but this Court denied the petition. Humanitarian Law Project v. Ashcroft, 532 U.S. 904 (2001).

On remand, the district court permanently enjoined enforcement of the challenged provisions against re spondents, again on vagueness grounds. Humanitarian Law Project v. Reno, No. CV-98-1971ABC, 2001 WL 36105333 (C.D. Cal. Oct. 2, 2001). A panel of the court of appeals affirmed that judgment as well. Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir. 2003). After the IRTPA amendments be came law, however, the court granted the government's petition for rehearing en banc, vacated the panel's deci sion in relevant part, and remanded to the district court to consider the case in light of those amendments. Hu manitarian Law Project v. United States Dep't of Jus tice, 393 F.3d 902 (9th Cir. 2004) (en banc).

b. In the second action, respondents focused on the term "expert advice or assistance," asserting that it too is unconstitutionally vague. The district court agreed and enjoined the government from enforcing the chal lenged provision against respondents with respect to the PKK and the LTTE. Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (C.D. Cal. 2004). The court of appeals subsequently vacated and remanded that judgment for consideration of the IRTPA amend ments. Humanitarian Law Project v. Gonzales, No. 04-55871 (9th Cir. Apr. 1, 2005).

c. Both remanded cases were consolidated before the district court, where respondents asserted that the terms "training," "personnel," and "expert advice or as sistance" are unconstitutionally vague, even as amended and clarified by IRTPA. Respondents also argued that the term "service"-which IRTPA had added to the defi nition of "material support or resources"-is impermis sibly vague. The district court agreed with those claims, except as to "personnel," and it again entered an injunc tion. App., infra, 33a-76a.

4. The court of appeals affirmed. App., infra, 1a- 32a.

The court of appeals held that the term "training" is unconstitutionally vague. App., infra, 20a-23a. The court considered it "highly unlikely that a person of or dinary intelligence would know whether, when teaching someone to petition international bodies for [humanitar ian] aid, one is imparting a 'specific skill' or 'general knowledge.'" Id. at 21a-22a. In addition, "[e]ven if per sons of ordinary intelligence could discern between the instruction that imparts a 'specific skill,' as opposed to one that imparts 'general knowledge,'" the court stated that "the term 'training' could still be read to encompass speech and advocacy protected by the First Amend ment." Id. at 22a. The court concluded that the term "training" is vague "because it 'implicates, and poten tially chills, [respondents'] protected expressive activi ties.'" Id. at 22a-23a (quoting id. at 64a).

The court of appeals also held that the term "expert advice or assistance" is unconstitutionally vague. App., infra, 23a-24a. The court noted that the statute's defini tion of "expert advice or assistance" as "advice or assis tance derived from scientific, technical or other special ized knowledge," 18 U.S.C. 2339A(b)(3), was borrowed from Federal Rule of Evidence 702. But that borrowing, the court stated, "does not clarify the term 'expert ad vice or assistance' for the average person with no back ground in law." App., infra, 24a (quoting id. at 66a). In particular, the court concluded that "the 'other special ized knowledge' portion of the ban" would "cover consti tutionally protected advocacy." Ibid. By contrast, the court held that the provision was not vague insofar as it reached "scientific [or] technical * * * knowledge," because "the meaning of 'technical' and 'scientific' is reasonably understandable to a person of ordinary intel ligence." Ibid.

Similarly, the court of appeals held that the term "service" is vague "because it is easy to imagine protec ted expression that falls within the bounds of the term service,'" and because "each of the other challenged pro visions could be construed as a provision of 'service.'" App., infra, 25a (internal quotation marks omitted).

Finally, the court of appeals held that the term "per sonnel" is not vague. App., infra, 26a-27a. The court noted that, as a result of IRTPA, the statute "criminal izes providing 'personnel' to a foreign terrorist organiza tion only where a person, alone or with others, '[work]s under that terrorist organization's direction or control or . . . organize[s], manage[s], supervise[s], or other wise direct[s] the operation of that organization.'" Id. at 26a (brackets in original) (quoting 18 U.S.C. 2339B(h)). As amended, the court held, the term is not vague be cause it "no longer criminalizes pure speech protected by the First Amendment." Id. at 26a-27a.

5. The court of appeals denied a petition for rehear ing en banc. App., infra, 3a.

REASONS FOR GRANTING THE PETITION

The court of appeals declared parts of an Act of Con gress unconstitutionally vague under the Fifth Amend ment. Such a decision would ordinarily warrant this Court's review. That is especially so in this case, be cause the statute in question, which prohibits the know ing provision of material support to designated foreign terrorist organizations, is a vital part of the Nation's effort to fight international terrorism.

The court of appeals held that three components of the statutory definition of material support-"training," "expert advice or assistance," and "service"-are uncon stitutionally vague. That is incorrect. Each of those terms has an established meaning and is readily under standable by persons of ordinary intelligence. Because the statute provides fair notice of what is prohibited, it satisfies the requirements of the Due Process Clause.

The court of appeals believed that the terms at issue are vague primarily because they could be construed to prohibit speech that is protected by the First Amend ment. That conclusion rests on a confusion between the vagueness and overbreadth doctrines. The breadth of a statute, by itself, has nothing to do with whether the statute is vague. In any event, the statute in question regulates conduct, not speech, and does not violate the First Amendment in any of its applications. To the ex tent that there is any doubt about the statute's applica bility to constitutionally protected advocacy, the court of appeals could have construed the statute to avoid any constitutional infirmity, and erred in failing to do so.

A. This Court's Review Is Warranted Because The Court Of Appeals Invalidated An Important Act Of Congress

This Court should grant review because the court of appeals held that portions of an Act of Congress are un constitutional. App., infra, 20a-25a (concluding that the terms "training," "expert advice or assistance," and "service" in 18 U.S.C. 2339A(b)(1) are unconstitutionally vague). As this Court has repeatedly observed, judging the constitutionality of an Act of Congress is "the grav est and most delicate duty that this Court is called upon to perform." Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)). The Court has frequently reviewed lower- court decisions holding a federal law unconstitutional, even in the absence of a circuit conflict. See, e.g., United States v. Williams, 128 S. Ct. 1830 (2008); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison, 529 U.S. 598 (2000).

This Court's review is particularly appropriate in this case because the material-support statute is an im portant tool in the Nation's fight against international terrorism. Since 2001, the United States has charged approximately 120 defendants with violations of the material-support provision of 18 U.S.C. 2339B, and ap proximately 60 defendants have been convicted. Sever al of those prosecutions have involved the provision of "training," "expert advice or assistance, or "ser vice"-the parts of the statute struck down by the court of appeals in this case. See, e.g., Indictment at 4-5, United States v. Iqbal, No. 06-Cr-1054 (RMB) (S.D.N.Y. filed Jan. 20, 2007) (defendants were charged under Sec tion 2339B with providing satellite-television services to Hizballah; defendants pleaded guilty); Indictment at 1-2, United States v. Shah, No. 05-Cr-673 (LAP) (S.D.N.Y. filed Dec. 6, 2006) (defendants were charged under Section 2339B with providing al Qaeda "martial arts training and instruction" and "medical support to wounded jihadists"; one defendant pleaded guilty and the other was found guilty after a jury trial). And several of the cases have involved the provision of material support to the LTTE, one of the terrorist organizations at issue here. See, e.g., United States v. Osman, No. 06-cr-00416-CCB-1 (D. Md.); United States v. Sarachandran, No. 06-cr-00615-RJD-1 (E.D.N.Y.); United States v. Thavaraja, No. 06-cr-00616-RJD-JO-1 (E.D.N.Y.). Many of those prosecutions potentially pre vented substantial harm to the Nation.

When it enacted the material-support statute, Con gress expressly found that "international terrorism is a serious and deadly problem that threatens the vital interests of the United States," and that "foreign organi zations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." AEDPA § 301(a)(1) and (7), 110 Stat. 1247 (18 U.S.C. 2339B note) (emphasis added). "[T]he fungibility of financial re sources and other types of material support" means that when individuals "supply funds, goods, or services to [a terrorist] organization" to "defray the cost to the terror ist organization of running * * * ostensibly legitimate activities," their contribution "frees an equal sum that can then be spent on terrorist activities." H.R. Rep. No. 383, 104th Cong., 1st Sess. 81 (1995); see Boim v. Holy Land Found. for Relief & Dev., 549 F.3d 685, 698 (7th Cir. 2008) (en banc) ("Anyone who knowingly contrib utes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization's terrorist activities."), petition for cert. pending, No. 08-1441 (filed May 1, 2009). Accord ingly, Congress has banned a broad range of material support-regardless of whether the terrorist group claims to engage in otherwise lawful activities, and re gardless of whether the support is ostensibly given to assist those supposedly lawful activities.

The decision below seriously undermines the statu tory scheme created by Congress to address the prob lem of international terrorism. Under the injunction affirmed by the court of appeals, respondents are free to provide "training," "expert advice or assistance," and "service"-of whatever kind-to the PKK and the LTTE, organizations that the Secretary of State has found to engage in terrorist activity that "threatens the security of United States nationals or the national secu rity of the United States." 8 U.S.C. 1189(a)(1); see App., infra, 75a-76a. That result warrants correction by this Court.

B. The Court of Appeals Erred In Holding The Material- Support Statute Unconstitutionally Vague

1. The terms "training," "expert advice or assistance," and "service" are not vague

The Due Process Clause requires that a criminal statute be sufficiently clear to give a person of "ordinary intelligence a reasonable opportunity to know what is prohibited." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The Clause does not require that an offense be defined with "mathematical certainty," id. at 110, but only that it give "relatively clear guidelines as to prohib ited conduct," Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994). The statutory definition of "material support" in 18 U.S.C. 2339A(b)(1) easily satis fies that standard.

The court of appeals believed that, because "First Amendment freedoms" are at issue in this case, the gov ernment "may regulate * * * only with narrow speci ficity." App., infra, 20a (quoting Foti v. City of Menlo Park, 146 F.3d 629, 638-639 (9th Cir. 1998)). That is incorrect. As explained below, see pp. 19-21, infra, the material-support statute does not regulate speech; it is a regulation of conduct that only incidentally impinges on expression. In any event, this Court has observed that "perfect clarity and precise guidance have never been required even of regulations that restrict expres sive activity." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989).

Moreover, the court of appeals failed to appreciate that Section 2339B is violated only when the person pro viding material support knows that the organization being supported is a designated terrorist organization or has engaged in terrorism or terrorist activity. 18 U.S.C. 2339B(a)(1). That scienter requirement helps to miti gate any potential vagueness problem by reducing the possibility that the statute could be applied to innocent conduct. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-499 (1982).

The court of appeals identified three components of the definition of material support that it consid ered vague: "training," "expert advice or assistance," and "service." App., infra, 20a-25a. In fact, each of those terms is sufficiently clear to satisfy the Due Pro cess Clause.

a. Even before Congress clarified the definition of "training" by enacting IRTPA in 2004, the meaning of that term was clear and readily intelligible to the aver age person. "Train" is defined as "to teach or exercise (someone) in an art, profession, trade, or occupation," to "direct in attaining a skill," or to "give instruction to." Webster's Third New International Dictionary of the English Language 2424 (1993) (Webster's). As the court of appeals recognized in an earlier case, a person of ordi nary intelligence would readily understand those con cepts. See California Teachers Ass'n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (holding that "instruction" is a "word[] of common understanding" and is not unconstitutionally vague). Indeed, "training" is sufficiently intelligible that respondents used the term in their complaints to describe their own activities. C.A. E.R. 11-12 (alleging that respondents "would like to * * * provide the PKK * * * with training"); id. at 44 (same). The clarity of the statute as applied to respon dents' own conduct is fatal to their claim of vagueness. See Village of Hoffman Estates, 455 U.S. at 495 ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.").

IRPTA further clarifies the meaning of "training" by providing that it includes only "instruction or teaching designed to impart a specific skill, as opposed to general knowledge." 18 U.S.C. 2339A(b)(2). Contrary to the court of appeals' conclusion, App., infra, 21a-22a, that definition is clear on its face: a person of ordinary intel ligence is capable of distinguishing between what is com monly or generally known and what is not. See Pierce v. Underwood, 487 U.S. 552, 572 (1988) (distinguishing "some distinctive knowledge or specialized [litigation] skill" from "general lawyerly knowledge").

b. Likewise, the phrase "expert advice or assis tance" has a clearly understood meaning and is not vague. See Webster's 800 (defining "expert" as "having special skill or knowledge derived from training or expe rience"). Again, respondents themselves have used the term in describing their activities. See, e.g., C.A. E.R. 42 (alleging that some respondents "have devoted a sub stantial amount of time and resources to * * * provid ing training, expert advice and other forms of support to the PKK"); id. at 45 (alleging that other respondents "wish to offer their expert medical advice and assistance to the LTTE"); id. at 46-47.

The clarity of "expert advice or assistance" has only been enhanced by IRTPA, which further defines it to mean "advice or assistance derived from scientific, technical or other specialized knowledge." 18 U.S.C. 2339A(b)(3). That definition is derived from Federal Rule of Evidence 702, which permits expert witnesses to offer testimony based on "scientific, technical, or other specialized knowledge." This Court explained in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), that the category of scientific, technical, and other specialized knowledge consists of "specialized observations, the spe cialized translation of those observations into theory, a specialized theory itself, or the application of such a the ory in a particular case" that is based upon experiences "foreign in kind" to those of the population in general. Id. at 149. Once again, a person of ordinary intelligence could readily distinguish between common knowledge and knowledge that is so specialized that it is foreign to the experiences of most people.

The court of appeals believed that the origins of the phrase "expert advice or assistance" in Rule 702 did not clarify the statute "for the average person with no back ground in law." App., infra, 24a (quoting id. at 66a). But this Court's interpretation of Rule 702 has been based on the ordinary meaning of the rule's words, not on obscure legal arcana. See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 589-590 (1993) (citing dictio nary definitions of "scientific" and "knowledge"). The average person need not know anything about Rule 702 or about the relationship between Rule 702 and the phrase "expert advice or assistance" in order to under stand the meaning of that term.2

The analysis of the court of appeals is particularly puzzling because the court held that part of the phrase -namely, "scientific [or] technical * * * knowledge" -is not vague, while "other specialized knowledge" is vague. App., infra, 24a. But under the principle of ejusdem generis, "other specialized knowledge" takes its meaning from the surrounding (concededly non- vague) terms "scientific" and "technical." See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) ("[W]here general words follow specific words in a statu tory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.") (citation omitted). Indeed, "the average person with no back ground in law," App., infra, 24a, would not need to be familiar with "such Latin phrases as ejusdem generis and noscitur a sociis to reach [the] obvious conclusion" that "words grouped in a list should be given related meaning," Third Nat'l Bank v. Impac Ltd., 432 U.S. 312, 322-323 & n.16 (1977) (quotation marks omitted). More over, Kumho Tire makes clear that the entire phrase- "scientific, technical, or other specialized knowledge"- refers to knowledge based on experiences not usually shared by the general public. 526 U.S. at 148-149. That understanding of all the parts of the definition of "ex pert advice or assistance" taken together is just what a person of ordinary intelligence would take the words to mean.

c. The term "service" is also not unconstitutionally vague. "Service" refers to "an act done for the bene fit or at the command of another" or to "useful labor that does not produce a tangible commodity." Webster's 2075. Those words are readily understood by people of ordinary intelligence. In other contexts, courts of ap peals have found the same or similar terms to be suffi ciently clear to define the scope of criminal liability. See, e.g., United States v. Homa Int'l Trading Corp., 387 F.3d 144, 146 (2d Cir. 2004) (concluding that "[t]he term 'services,'" as used in a statute and Executive Or der prohibiting the export of "services" to Iran, is "un ambiguous"); United States v. Hescorp, Heavy Equip. Sales Corp., 801 F.2d 70, 77 (2d Cir.) (rejecting vague ness challenge to a provision of an Executive Order pro hibiting any person from engaging in any "service con tract" in Iran, because the language in the Executive Order "gave * * * fair notice" of what was prohibited), cert. denied, 479 U.S. 1018 (1986). The word is no less easy to understand in the material-support statute.

2. The court of appeals confused the vagueness and overbreadth doctrines

The decision of the court of appeals rested in large part on the court's view that prohibiting the provision of any "training," "expert advice or assistance," or "ser vice" to a terrorist group would violate the First Amend ment. For example, the court reasoned that "train ing" is vague because it could "be read to encompass speech and advocacy protected by the First Amend ment." App., infra, 22a; see id. at 24a (holding that "ex pert advice or assistance" is vague because it "continues to cover constitutionally protected advocacy"); id. at 25a (holding that "service" is vague "because it is easy to imagine protected expression that falls within the bounds of the term 'service'") (internal quotation marks omitted).

The court of appeals' analysis erroneously conflated the doctrines of vagueness and overbreadth. If the court were correct that "training" could "be read to en compass speech and advocacy protected by the First Amendment," App., infra, 22a, then the statute might be unconstitutional, as a matter of substantive First Amendment law, in some of its applications. And if those applications were sufficiently numerous in relation to the legitimate applications of the statute, then the statute would be vulnerable to an overbreadth challenge. See Virginia v. Hicks, 539 U.S. 113, 119-120 (2003). But overbreadth and vagueness are distinct doctrines, and the coverage of a statute, by itself, has nothing to do with whether its meaning is unclear. See Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (That a statute can be applied in many different situations "does not demon strate ambiguity. It demonstrates breadth.") (quotation marks omitted); Grayned, 408 U.S. at 114 ("A clear and precise enactment may nevertheless be 'overbroad' if in its reach it prohibits constitutionally protected con duct."). Assuming arguendo that this statute has uncon stitutional applications to protected First Amendment activity, that does not render the statute unconstitution ally vague.

3. The material-support statute does not violate the First Amendment

Even if the breadth of Section 2339B were some how relevant to a vagueness inquiry, the decision below would still be incorrect. Contrary to the view of the court of appeals, the statute does not restrict speech that is protected by the First Amendment.

a. Section 2339B is not aimed at speech. Instead, the statute is a regulation of conduct that, as the court below has previously recognized, serves a purpose unre lated to the content of any expression: "stopping aid to terrorist groups." App., infra, 28a (quoting Humani tarian Law Project, 205 F.3d at 1135). And as a regula tion of conduct that only incidentally restricts speech, Section 2339B easily survives review under the long standing test set out in United States v. O'Brien, 391 U.S. 367, 377 (1968)-i.e., that the regulation be within the government's power; that it promote an important interest; that the interest be unrelated to suppressing free expression; and that the regulation restrict First Amendment rights no more than is necessary. As the court of appeals observed, the statute is within the Fed eral Government's authority to regulate the dealings of its citizens with foreign entities; it promotes an essen tial government interest "in preventing the spread of international terrorism"; it is aimed at stopping aid to terrorist groups rather than at suppressing expres sion; and it is reasonably tailored, especially consider ing the "wide latitude" given to the government in an area "bound up with foreign policy considerations" and considering Congress's conclusion that designated ter rorist groups "are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Humanitarian Law Project, 205 F.3d at 1136 (internal quotation marks omitted); accord United States v. Hammoud, 381 F.3d 316, 329 (4th Cir. 2004) (en banc) ("Section 2339B satisfies all four prongs of the O'Brien test."), vacated on other grounds, 543 U.S. 1097 (2005), reinstated in relevant part, 405 F.3d 1034 (4th Cir. 2005).

The same analysis applies whether the material sup port takes the form of conduct or words, because the statute does not regulate the content of any expression, but only the act of knowingly giving material support. Nor does it matter, when the support takes the form of words, whether those words are intrinsically blamewor thy (e.g., training on how to build a bomb) or seemingly benign (e.g., advice on international law, or on how to program a computer). In either instance, the statute's aim is not directed at the content of speech, but at the act of aiding deadly terrorist organizations. Accord ingly, the prohibition does not contravene the First Amendment, as applied to plaintiffs' conduct or other wise.

b. Because the statute does not violate the First Amendment in any of its applications, it follows a forti ori that it is not overbroad. To be overbroad, a statute must prohibit a "substantial" amount of protected ex pression, judged in absolute terms and in relation to the law's plainly legitimate sweep. Hicks, 539 U.S. at 119- 120; see Williams, 128 S. Ct. at 1838. Even if respon dents could show some cases in which the statute would ban protected speech, those instances would not be "substantial" in absolute number, nor would they be "substantial" in relation to the numerous legitimate ap plications of the statute, such as prohibiting a person from training a terrorist organization on how to build a bomb, use a weapon, fly a plane, or launder money. See Hicks, 539 U.S. at 124 ("Rarely, if ever, will an overbreadth challenge succeed against a law or regula tion that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)."). Thus, as even the court below recognized in another part of its analysis, the stat ute is not overbroad. App., infra, 27a-29a.

c. The court of appeals drew a distinction between material support in the form of independent advocacy (which it held could not be prohibited consistent with the First Amendment), and material support provided di rectly to, or under the control of, a terrorist group (which can permissibly be banned). App., infra, 26a-27a. But the court failed to appreciate that the challenged terms-"training," "expert advice or assistance," and "service"-can easily be construed so as not to prohibit any independent advocacy, and thus so as not to offend the First Amendment even under the court of appeals' theory. The court of appeals was obliged to adopt such a construction if necessary to save the statute, and it erred by failing to do so. See Jones v. United States, 526 U.S. 227, 239 (1999) ("[W]here a statute is suscepti ble of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.") (internal quotation marks omitted); Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).

All the terms at issue here imply a relationship to another person or entity. The ordinary meaning of "ser vice," for example, is "an act done * * * at the com mand of another." Webster's 2075. One does not "serve" in the abstract; one serves someone or something. Simi larly, "training," "advice," and "assistance" all assume an object-the person to whom or entity to which the training, advice, and assistance are rendered-and some collaboration or other relationship between the giver and the recipient of the type of aid in question. The terms are therefore naturally read, even if not inevitably read, to exclude independent advocacy.

Other parts of Section 2339B also support this inter pretation. The key provision of the statute criminalizes only support provided "to" a foreign terrorist organiza tion, 18 U.S.C. 2339A(b)(1), 2339B(a)(1) (emphasis add ed), which suggests that it prohibits only support that is given directly to a terrorist group or provided with some significant level of collaboration. A person who acts in dependently to advocate for a terrorist group would not commonly be considered to have knowingly provided something "to" that terrorist organization; if independ ent support were covered, Congress would have prohib ited support "of" or "for" a terrorist group. And the scienter requirement ensures that the individual must knowingly provide support to an organization he or she knows is involved with terrorism, again implying a rela tionship other than independence between the two. See pp. 13-14, supra.

Accordingly, to the extent that Section 2339B's con stitutionality turns on ensuring that its prohibitions do not bar independent advocacy, the statute can easily be construed in such a fashion. And a court would be obliged to adopt that construction if necessary to save the statute, not only under general principles of consti tutional avoidance, but also under Congress's specific instruction that the statute not "be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment." 18 U.S.C. 2339B(i). The court of appeals, however, made no attempt to adopt a saving construction. Its failure to do so is another error war ranting this Court's review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
NEAL KUMAR KATYAL
Deputy Solicitor General
ERIC D. MILLER
Assistant to the Solicitor
General
DOUGLAS N. LETTER
JOSHUA WALDMAN
Attorneys

JUNE 2009

1 Sri Lankan forces recently recaptured the remaining portions of Sri Lankan territory that had been held by the LTTE. See Somini Sen gupta & Seth Mydans, Rebels Routed in Sri Lanka After 25 Years, N.Y. Times, May 18, 2009, at A1. That development does not moot this case, because it does not eliminate the possibility that elements of the LTTE could continue to operate. The Secretary of State may revoke her designation of a foreign terrorist organization "at any time" if she finds that "the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation," 8 U.S.C. 1189(a)(6)(A), but she has not taken such an action with respect to the LTTE. In any event, respondents have asserted that they wish to aid both the LTTE and the PKK, and the district court's order applies equally to the two groups. App., infra, 75a-76a. There is unquestion ably still a live controversy concerning the constitutionality of the statute as applied to the PKK.

2 In any event, the court of appeals' criticism rests on a misunder standing of the vagueness standard. Many terms in criminal statutes, such as "malice aforethought" or "conspiracy," are not clear as a matter of ordinary English but are nevertheless sufficiently definite to be en forceable because they have specialized meanings in the law.

 

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

 

No. 05-56753

HUMANITARIAN LAW PROJECT; RALPH FERTIG; ILANKAI THAMIL SANGRAM; TAMILS OF NORTHERN CALIFORNIA; TAMIL WELFARE AND HUMAN RIGHTS COMMITTEE; FEDERATION OF TAMIL SANGRAMS OF NORTH AMERICA; WORLD TAMIL COORDINATING COMMITTEE; NAGALINGAM JEYALINGAM, DR., PLAINTIFFS-APPELLEES

v.

MICHAEL B. MUKASEY,1 ATTORNEY GENERAL, OF THE UNITED STATES; UNITED STATES DEPARTMENT OF JUSTICE; CONDOLEEZA RICE, SECRETARY OF STATE; UNITED STATES DEPARTMENT OF STATE, DEFENDANTS-APPELLANTS

No. 05-56846

HUMANITARIAN LAW PROJECT; RALPH FERTIG; ILANKAI THAMIL SANGRAM; TAMILS OF NORTHERN CALIFORNIA; TAMIL WELFARE AND HUMAN RIGHTS COMMITTEE; FEDERATION OF TAMIL SANGRAMS OF NORTH AMERICA; WORLD TAMIL COORDINATING COMMITTEE; NAGALINGAM JEYALINGAM, DR., PLAINTIFFS-APPELLANTS

v.

MICHAEL B. MUKASEY,* ATTORNEY GENERAL, OF THE UNITED STATES; UNITED STATES DEPARTMENT OF JUSTICE; CONDOLEEZA RICE, SECRETARY OF STATE; UNITED STATES DEPARTMENT OF STATE, DEFENDANTS-APPELLEES

Filed: Dec. 10, 2007

Amended: Jan. 5, 2009

Before: HARRY PREGERSON, SIDNEY R. THOMAS, and JOHNNIE B. RAWLINSON, Circuit Judges.

ORDER

The opinion filed in this case on December 10, 2007, slip op. at 16135, 509 F.3d 1122 is hereby amended as follows:

At slip op. 16157, line 12: 509 F.3d at 1134, at the end of the paragraph, add the following footnote:

The issue of a facial vagueness challenge is not be fore this court. We therefore do not reach that issue.

At slip op. 16160, line 10: 509 F.3d at 1136, at the end of the paragraph, add the following footnote:

Whether the outcome would be different if evidence were presented showing that _service_ rendered to a designated foreign terrorist organization resulted in the receipt of money by the designated foreign terrorist organization itself is not an issue presented by this case. We therefore do not reach that issue.

With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehear ing en banc. The full court has been advised of these amendments and of the petition for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed. R. App. P. 35.) Future petitions for panel rehearing and future petitions for rehearing en banc will not be entertained.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

PREGERSON, Circuit Judge:

We are once again called upon to decide the constitu tionality of sections 302 and 303 of the Antiterrorism and Effective Death Penalty Act (_AEDPA_) and its 2004 amendment, the Intelligence Reform and Terror ism Prevention Act (_IRTPA_).

4. I. OVERVIEW

Section 302(a) of AEDPA, Pub. L. 104-132, 110 Stat. 1214 (1996), codified in 8 U.S.C. § 1189, authorizes the Secretary of State (the _Secretary_) to designate a group as a _foreign terrorist organization._ Section 303(a) makes it a crime for anyone to provide support to even the nonviolent activities of the designated organi zation. See 18 U.S.C. § 2339B(a). Specifically, 8 U.S.C. § 1189(a)(1) authorizes the Secretary of State

to designate an organization as a foreign terrorist organization . . . if the Secretary finds that (A) the organization is a foreign organization; (B) the organi zation engages in terrorist activity . . . ; and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.

8 U.S.C. § 1189(a)(1).

The pertinent facts may be found in prior published decisions in this case. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) (_HLP I_), cert. denied, 532 U.S. 904, 121 S. Ct. 1226, 149 L. Ed. 2d 136 (2001); see also Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir. 2003) (_HLP II_), vacated, 393 F.3d 902 (9th Cir. 2004). We, therefore, set forth only a brief overview of the facts of this case.

Plaintiffs are six organizations, a retired federal ad ministrative law judge, and a surgeon. The Kurdistan Workers Party, a.k.a Partiya Karkeran Kurdistan (_PKK_), and the Liberation Tigers of Tamil Eelam (_LTTE_) engage in a wide variety of unlawful and law ful activities. Plaintiffs seek to provide support only to nonviolent and lawful activities of PKK and LTTE. This support would help Kurds living in Turkey and Tamils living in Tamil Eelam in the Northern and Eastern pro vinces of Sri Lanka to achieve self-determination.2

On October 8, 1997, the Secretary of State desig nated PKK, LTTE, and twenty-eight other foreign orga nizations as _foreign terrorist organizations._ See 62 Fed. Reg. 52,650, 52,650-51 (Oct. 8, 1997). To this day, both PKK and LTTE remain on the designated foreign terrorist organization list. Plaintiffs, fearing that they would be criminally investigated, prosecuted, and con victed under section 2339B(a), have been withholding their support for the PKK and LTTE from the time they were designated as foreign terrorist organizations.

On March 19, 1998, Plaintiffs filed a complaint in the district court (CV-98-01971-ABC; appeal No. 05-56753), alleging that AEDPA violated their First and Fifth Amendment rights. Plaintiffs sought a preliminary in junction to bar the government from enforcing against them AEDPA's prohibition against providing _material support or resources_ to PKK and LTTE. In support of their motion for a preliminary injunction, Plaintiffs ar gued: (1) that AEDPA violated their First Amendment right to freedom of association and their Fifth Amend ment right to due process because section 2339B(a) im posed a criminal penalty for their association with the designated organizations without requiring the govern ment to prove that Plaintiffs had the specific intent to further the designated organizations' unlawful goals; (2) that AEDPA violated their First Amendment right to association by prohibiting them from making political contributions to the designated organizations; and (3) that AEDPA violated their First and Fifth Amendment rights because it gave the Secretary of State unfettered licensing power to designate a group as a foreign terror ist organization.

In June 1998, the district court partially granted Plaintiffs' motion for a preliminary injunction and en joined the Attorney General's enforcement of AEDPA with respect to its prohibition on providing _training_ and _personnel_ to PKK and LTTE. See Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1205, 1215 (C.D. Cal. 1998) (_DC-HLP I_). The district court held that _Plain tiffs have demonstrated a probability of success on their claim that the terms _personnel_ and _training_ are im permissibly vague._ Id. The district court rejected the remainder of Plaintiffs' challenges, holding that AEDPA's prohibition on providing _material support or resources_ to designated foreign terrorist organizations is a _content-neutral limitation on Plaintiffs' right to freedom of association_ and _is subject to an intermedi ate scrutiny level of review._ Id. at 1212. The district court also held that _AEDPA does not impose _guilt by association alone_ in violation of the First Amendment because the AEDPA only limits the permissible ways in which Plaintiffs can associate with PKK and LTTE._ Id . (emphasis in the original). In other words, the dis trict court held that AEDPA does not criminalize mere membership. Rather, AEDPA criminalizes conduct that provides _material support or resources_ to a designated foreign terrorist organization. Finally, the district court held that Plaintiffs failed to establish a probability of success on their claim that AEDPA affords the Secre tary of State unfettered discretion to designate a group as a foreign terrorist organization. See id. at 1213.

Both parties appealed the district court's order. On March 3, 2000, we affirmed the district court. See HLP I. In HLP I, we determined that AEDPA section 2339B is a content-neutral regulation of conduct subject to in termediate scrutiny. See id. at 1135. Further, we re jected Plaintiffs's licensing scheme argument and held that the discretion accorded to the Secretary of State to designate a group as a foreign terrorist organization is not _unfettered_ _because the regulation involves the conduct of foreign affairs_ for which the courts _owe the executive branch even more latitude._ Id. at 1137. Fi nally, we agreed with Plaintiffs that AEDPA's prohibi tions on providing _personnel_ and _training_ to desig nated foreign terrorist organizations were unconstitu tionally vague because these prohibitions could be read to criminalize conduct protected by the First Amend ment. See id. at 1137-38.

After the case went back to the district court, the government moved to dismiss and both parties sought summary judgment in their favor. The district court reaffirmed its prior decision in an unpublished or der. See Humanitarian Law Project v. Reno, No. CV 98-01971 ABC, 2001 WL 36105333, 2001 U.S. Dist. LEXIS 16729 (C.D. Cal. Oct. 3, 2001). The district court entered a permanent injunction against enforcing AEDPA's prohibition on providing _personnel_ and _training_ to designated organizations. See id. 2001 WL 36105333 at *12-13, 2001 U.S. Dist. LEXIS 16729 at *38. Both parties appealed. On appeal, in addition to renew ing previously raised arguments, Plaintiffs also raised a Fifth Amendment due process challenge, arguing that AEDPA section 2339B imposes vicarious liability be cause it does not contain a mens rea element.

On October 26, 2001, Congress enacted the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (_USA PATRIOT Act_), Pub. L. No. 107-56, § 805(a)(2), 115 Stat. 272 (Oct. 26, 2001). The USA PATRIOT Act amended AEDPA's definition of _material support or resources_ to include the prohibition against providing _expert advice or assistance_ to a designated foreign terrorist organization. See 18 U.S.C. § 2339A(b) and § 2339B(g)(4).

On August 27, 2003, Plaintiffs filed a separate com plaint in the district court (CV-03-06107-ABC; appeal No. 05-56846), challenging AEDPA's ban on providing _expert advice or assistance_ to a designated foreign terrorist organization. The district court found that term to be unconstitutionally vague, but not overbroad. See Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (C.D. Cal. 2004). The district court gran ted Plaintiffs's request for injunctive relief. See id. at 1204. Both parties appealed.

On December 3, 2003, we affirmed the district court's holding that the terms _training_ and _personnel_ were void for vagueness. See Humanitarian Law Project v. United States Dep't of Justice, 352 F.3d 382 (9th Cir. 2003) (_HLP II_), vacated, 393 F.3d 902 (9th Cir. 2004). A majority of the panel also read into the statute a mens rea requirement holding that, _to sustain a conviction under § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a for eign terrorist organization or that the donor had knowl edge of the organization's unlawful activities that caused it to be so designated._ Id. at 403. The parties sought, and we granted, en banc review of HLP II. See Human itarian Law Project v. United States Dep't of Justice, 382 F.3d 1154 (9th Cir. 2004).

On December 17, 2004, three days after the en banc panel heard oral argument, Congress passed the Intelli gence Reform and Terrorism Prevention Act (_IRTPA_) which amended AEDPA. As amended, AEDPA now provides in part:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or at tempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be im prisoned for any term of years or for life.

18 U.S.C. § 2339B(a)(1) (emphasis added).

The term _material support or resources_ includes:

any property, tangible or intangible, or service, in cluding currency or monetary instruments or finan cial securities, financial services, lodging, training, expert advice or assistance, safehouses, false docu mentation or identification, communications equip ment, facilities, weapons, lethal substances, explo sives, personnel (1 or more individuals who may be or include oneself), and transportation, except medi cine or religious materials.

18 U.S.C. § 2339A(b) (emphasis added).

In enacting IRTPA, Congress amended the definition of _material support or resources_ to include an addi tional ban on providing _service._ See id. Congress also defined for the first time the terms _training_ and _ex pert advice or assistance,_ 18 U.S.C. § 2339(A)(b)(2)-(3), and clarified the prohibition against providing _person nel_ to designated organizations, 18 U.S.C. § 2339B(h).

Post-IRTPA, _training_ refers to _instruction or teaching designed to impart a specific skill, as opposed to general knowledge._ 18 U.S.C. § 2339A(b)(2). _Ex pert advice or assistance_ encompasses _advice or assis tance derived from scientific, technical or other special ized knowledge._ 18 U.S.C. § 2339A(b)(3). _Personnel_ includes _1 or more individuals_ who _work under th[e] terrorist organization's direction or control or [who] or ganize, manage, supervise, or otherwise direct the oper ation of that organization._ 18 U.S.C. § 2339B(h). AEDPA, as amended by IRTPA, narrows the definition of _personnel_ by providing that _[i]ndividuals who act entirely independently of the foreign terrorist organiza tion to advance its goals or objectives shall not be con sidered to be working under the foreign terrorist organi zation's direction or control._ Id. (emphasis added).

Further, IRTPA provides that AEDPA's prohibition on providing _material support or resources_ to a desig nated foreign terrorist organization includes a mens rea requirement. To violate the statute, a person who pro vides _material support or resources_ to a designated organization must know that (1) _the organization is a designated terrorist organization,_ (2) _the organization has engaged or engages in terrorist activity,_ or that (3) _the organization has engaged or engages in terrorism._3 18 U.S.C. § 2339B(a)(1).

Lastly, AEDPA, as amended by IRTPA, gives the Secretary of State discretion to authorize (with the con currence of the Attorney General) certain forms of sup port4 otherwise proscribed under section 2339B(a) un less such support _may be used to carry out terrorist ac tivity._ 18 U.S.C. § 2339B(j).

Because of the amendments to AEDPA contained in IRTPA, the en banc panel, on December 21, 2004, _va cate[d] the judgment and injunction [of the HLP II pan el] regarding the terms _personnel_ and _training,_ and remanded [this case] to the district court for further proceedings._ See Humanitarian Law Project v. Uni ted States Dep't of State, 393 F.3d 902, 902 (9th Cir. 2004) (_HLP en banc_). The en banc panel also affirmed the district court's rulings on the rest of Plaintiffs' First Amendment challenges _for the reasons set out in [HLP I],_ and vacated the decision in HLP II. Id . On April 1, 2005, we remanded Plaintiffs' separate chal lenge to the term _expert advice or assistance_ to the district court to consider IRTPA's impact on the litiga tion.

On remand, the district court consolidated the two cases (the _personnel_ and _training_ challenge and the _expert advice and assistance_ challenge). Plaintiffs also challenge IRTPA's newly added term _service._ The parties thereafter filed cross-motions for summary judgment. On July 25, 2005, the district court granted in part and denied in part the summary judgment mo tions in the consolidated cases. See Humanitarian Law Project v. Gonzales, 380 F. Supp. 2d 1134 (C.D. Cal. 2005) (_DC-HLP III_). The district court held that the terms _training_ and _service_ are unconstitutionally vague. Id. at 1152. With respect to the term _expert advice or assistance,_ the district court held that the _other specialized knowledge_ part of the definition is void for vagueness, but that the _scientific_ and _tech nical_ knowledge part of the definition was not vague. Id. at 1151 & n.23. The district court also held that the newly-added definition of _personnel_ found in AEDPA section 2339B(h) cured the vagueness of that term. Id. at 1152. The district court rejected the rest of Plaintiffs' challenges and granted partial summary judgment for the government. See id. at 1155. Both parties timely appealed.

5. II. STANDARD OF REVIEW

We review the district court's order granting sum mary judgment de novo. See Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir. 1999) (en banc). We must de termine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court cor rectly applied the relevant substantive law and whether there are any genuine issues of material fact. See id.

The district court's determination that a statute is unconstitutionally vague is reviewed de novo. See Uni ted States v. Wyatt, 408 F.3d 1257, 1260 (9th Cir. 2005).

6. III. DISCUSSION

A. Specific Intent

In their prior appeals, Plaintiffs argued that AEDPA section 2339B(a) violates their Fifth Amendment due process rights because that section does not require proof of mens rea to convict a person for providing _ma terial support or resources_ to a designated foreign ter rorist organization. See HLP-II, 352 F.3d at 394. In HLP-II, we read the statute to require that the donor of the _material support or resources_ have knowledge _ei ther of an organization's designation or of the unlawful activities that caused it to be so designated._ Id. at 402-03.

In December 2004, Congress passed IRTPA that re vised AEDPA to essentially adopt our reading of AEDPA section 2339B to include a knowledge require ment. Thus, post-IRTPA, to convict a person for provid ing _material support or resources_ to a designated for eign terrorist organization, the government must prove that the donor defendant _ha[d] knowledge that the or ganization is a designated terrorist organization, that the organization has engaged or engages in terrorist ac tivity, or that the organization has engaged or engages in terrorism._ 18 U.S.C. § 2339B(a) (citations omitted). As explained above, on December 21, 2004, the en banc panel vacated our judgment in HLP II, and remanded the case to the district court for further proceedings in light of IRTPA. See HLP en banc, 393 F.3d 902. The district court's decision on remand is now the matter be fore us.

Plaintiffs argue that IRTPA does not sufficiently cure AEDPA section 2339B's mens rea deficiency. They contend that section 2339B(a) continues to violate due process because it does not require the government to prove that the donor defendant acted with specific intent to further the terrorist activity of the designated organi zation. Plaintiffs urge us to invalidate the statute or, alternatively, to read a specific intent requirement into the statute.

_In our jurisprudence guilt is personal._ Brown v. United States, 334 F.2d 488, 495 (9th Cir. 1964) (internal quotations and citation omitted). Thus, we must _con strue [a criminal] statute in light of the fundamental principle that a person is not criminally responsible un less _an evil-meaning mind_ accompanies _an evil-doing hand.__ United States v. Nguyen, 73 F.3d 887, 890 (9th Cir. 1995) (quoting Morissette v. United States, 342 U.S. 246, 251, 72 S. Ct. 240, 96 L. Ed. 288 (1952)). In other words, unless Congress expressly communicates its in tent to dispense with a mens rea requirement and create strict criminal liability, the notion of _personal guilt_ re quires some culpable intent before criminal liability at taches.

_[D]etermining the mental state required for com mission of a federal crime requires _construction of the statute and . . . inference of the intent of Congress.__ Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994) (quoting United States v. Balint, 258 U.S. 250, 253, 42 S. Ct. 301, 66 L. Ed. 604 (1922)). We remain mindful that we _should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components con templated by the words used in the statute._ Moris sette, 342 U.S. at 263, 72 S. Ct. 240.

In Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985), the Supreme Court exam ined the constitutionality of a federal statute that crim inalized the acquisition or possession of food stamps in any unauthorized manner. See id. at 420-21, 105 S. Ct. 2084. The statute contained no explicit mens rea re quirement. The Court read into the statute the require ment that the government prove that _the defendant knew his conduct to be unauthorized by statute or regu lations._ Id. at 425-26, 105 S. Ct. 2084 (emphasis added) (noting that _to interpret the statute otherwise would be to criminalize a broad range of apparently innocent con duct_).5

Here, AEDPA section 2339B(a) already requires the government to prove that the donor defendant provided _material support or resources_ to a designated foreign terrorist organization with knowledge that the donee organization is a designated foreign terrorist organiza tion, or with knowledge that the organization is or has engaged in terrorist activities or terrorism. 18 U.S.C. § 2339B(a). As amended, AEDPA section 2339B(a) com plies with the _conventional requirement for criminal conduct-awareness of some wrongdoing._ Staples, 511 U.S. at 606-07, 114 S. Ct. 1793. Thus, a person with such knowledge is put on notice that _providing material sup port or resources_ to a designated foreign terrorist or ganization is unlawful. Accordingly, we hold that the amended version of section 2339B comports with the Fifth Amendment's requirement of _personal guilt."

Plaintiffs urge us to read a specific intent require ment into AEDPA section 2339B. They rely on Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961). In Scales, the Supreme Court held that it was wrong to impute criminal guilt based on member ship in an organization without proof that the defendant acted with culpable intent. See id. at 224-25, 81 S. Ct. 1469. As amended, section 2339B(a) does not proscribe membership in or association with the terrorist organi zations,6 but seeks to punish only those who have pro vided _material support or resources_ to a foreign ter rorist organization with knowledge that the organization was a designated foreign terrorist organization, or that it is or has engaged in terrorist activities or terrorism. Accordingly, unlike the statute in Scales which was si lent with respect to requisite mens rea, section 2339B(a) exposes one to criminal liability only where the govern ment proves that the donor defendant acted with culpa ble intent-knowledge.

At oral argument, Plaintiffs conceded that, were we to read into section 2339B a specific intent requirement that the person providing _material support or resourc es_ do so with an intent to further the organization's unlawful goals (terrorist activity), we would be extend ing Scales. Because we find that acting with _know ledge_ satisfies the requirement of _personal guilt_ and eliminates any due process concerns, we decline Plain tiffs' invitation to extend the holding in Scales.

Plaintiffs also rely on what they consider _vicarious criminal liability_ cases where courts required proof of intent to further the group's illegal ends. Those cases are distinguishable. We disagree with Plaintiffs' charac terization of section 2339B(a) as a statute that imposes _vicarious criminal liability._

Vicarious liability involves holding one person ac countable for the actions of another. Section 2339B(a) criminalizes the act of knowingly providing _material support or resources_ to a designated foreign terrorist organization. Donor defendants are penalized for the criminal act of support. Donor defendants cannot be penalized under section 2339B(a) for the illegal conduct of the donee organization.

Ferguson v. Estelle, 718 F.2d 730 (5th Cir. 1983), is instructive. In Ferguson, defendants, participants in a violent riot, were prosecuted for arson committed by other rioters. See id. at 731-32. The court held that the state (Texas) could prosecute the defendants for arson even though they were not the arsonists. See id. at 731. The court noted that the statute at issue conformed with Scales's requirement of personal guilt because, to obtain a conviction, the state had to prove that the accused riot participants had specific intent to further the illegal aims of the rioters who committed arson. Id. at 736.

Unlike the statute at issue in Ferguson, section 2339B(a) seeks to punish only those who commit the acts proscribed by the statute. In other words, a person who provides _material support or resources_ to a designated foreign terrorist organization is liable for knowingly do ing so in violation of section 2339B(a). Section 2339B(a) does not impose _vicarious criminal liability_ because the statute cannot be invoked to punish the donor defen dant for crimes committed by the donee foreign terrorist organization. A person cannot be convicted of murder under section 2339B(a) if the foreign terrorist organiza tion committed an act of terrorism that took innocent lives. In sum, because section 2339B(a) does not impose _vicarious criminal liability,_ due process is satisfied without proof of specific intent to further the organiza tion's illegal goals.

Finally, in enacting IRTPA, Congress explicitly stat ed that knowledge of the organization's designation as a foreign terrorist organization, or knowledge of its en gagement in terrorist activities or terrorism is required to convict under section 2339B(a). As the district court correctly observed, Congress could have, but chose not to, impose a requirement that the defendant act with the specific intent to further the terrorist activity of the or ganization, a requirement clearly set forth in sections 2339A and 2339C of the statute, but left out of section 2339B. See DC HLP III, 380 F. Supp. 2d at 1146. More over, it is not our role to rewrite a statute, and we de cline to do so here. See HLP I, 205 F.3d at 1137-38.

Because there is no Fifth Amendment due process violation, we affirm the district court on this issue.

7. B. Vagueness

AEDPA section 2339B(a), as amended by IRTPA in December 2004, now criminalizes the act of knowingly providing _material support or resources_ to a desig nated foreign terrorist organization. The amended stat ute defines _material support and resources_ as:

any property, tangible or intangible, or service, in cluding currency or monetary instruments or finan cial securities, financial services, lodging, training, expert advice or assistance, safehouses, false docu mentation or identification, communications equip ment, facilities, weapons, lethal substances, explo sives, personnel (1 or more individuals who may be or include oneself), and transportation, except medi cine or religious materials.

18 U.S.C. § 2339A(b) (emphasis added).

Plaintiffs argue that this amended definition is im permissibly vague because the statute fails to notify a person of ordinary intelligence as to what conduct con stitutes _material support or resources._ Specifical ly, Plaintiffs argue that the prohibitions on providing _training,_ _expert advice or assistance,_ _service,_ and _personnel_ to designated organizations are vague be cause they are unclear and could be interpreted to crim inalize protected speech and expression.

The Due Process Clause of the Fifth Amendment requires that statutes clearly delineate the conduct they proscribe. See Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998). While due process does not _require _impossible standards' of clarity,_ Kolender v. Law son, 461 U.S. 352, 361, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983), the _requirement for clarity is enhanced when criminal sanctions are at issue or when the statute abut[s] upon sensitive areas of basic First Amendment freedoms,_ Info. Providers' Coal. for the Def. of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir. 1991) (alteration in original) (internal quotation marks omitted). In such cases, the statute _must be sufficient ly clear so as to allow persons of ordinary intelligence a reasonable opportunity to know what is prohibited._ HLP I, 205 F.3d at 1137 (quoting Foti, 146 F.3d at 638) (internal quotation marks omitted). Moreover, _[b]e cause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity._ Foti, 146 F.3d at 638-39 (inter nal quotation marks omitted).

Vague statutes are invalidated for three reasons: _(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on _arbitrary and discrimina tory enforcement_ by government officers; and (3) to avoid any chilling effect on the exercise of First Amend ment freedoms._ Id. at 638.

8. 1. _Training_

In HLP I, we held that the term _training_ under AEDPA was unconstitutionally vague. 205 F.3d at 1138. At the time of Plaintiffs' initial challenge in 1998, AEDPA provided no definition of the term _training._ After we issued our opinion in HLP I in 2000, Congress amended the statute and defined the term _training_ as _instruction or teaching designed to impart a specific skill, as opposed to general knowledge._ 18 U.S.C. § 2339A(b)(2). On remand, Plaintiffs argued to the dis trict court that the term _training_ as defined by IRTPA remains unconstitutionally vague. Plaintiffs contended that persons of ordinary intelligence must discern whe ther the topic they wish to teach to members of desig nated organizations amounts to _teaching designed to impart a specific skill,_ which is criminalized, or _gen eral knowledge,_ which is not. Specifically, Plaintiffs contended that they must guess whether training PKK members in how to use humanitarian and international human rights law to seek peaceful resolution of ongoing conflict amounts to teaching a _specific skill_ or _gener al[ized] knowledge."

The district court again agreed with Plaintiffs. The district court held that IRTPA did not cure the vague ness of the term _training,_ and enjoined the govern ment from enforcing against Plaintiffs AEDPA's ban on providing _training._ See DC-HLP III, 380 F. Supp. 2d at 1150, 1156. We agree.

Generally, we would start our vagueness analysis by considering the plain meaning of the language at issue. See Johnson v. Aljian, 490 F.3d 778, 780 (9th Cir. 2007). However, where Congress expressly defines a term, the definition provided by Congress guides our vagueness analysis. See United States v. Rowland, 464 F.3d 899, 905 (9th Cir. 2006).

To survive a vagueness challenge, the statute must be sufficiently clear to put a person of ordinary intelli gence on notice that his or her contemplated conduct is unlawful. See Foti, 146 F.3d at 638. Because we find it highly unlikely that a person of ordinary intelligence would know whether, when teaching someone to petition international bodies for tsunami related aid, one is im parting a _specific skill_ or _general knowledge,_ we find the statute's proscription on providing _training_ void for vagueness. See HLP I, 205 F.3d at 1138 (finding the term _training_ impermissibly vague because _a plaintiff who wishes to instruct members of a designated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expres sion falls within the scope of the term _training.__); see also Info. Providers' Coalition, 928 F.2d at 874.7

Even if persons of ordinary intelligence could discern between the instruction that imparts a _specific skill,_ as opposed to one that imparts _general knowledge,_ we hold that the term _training_ would remain impermis sibly vague. As we previously noted in HLP I, limiting the definition of the term _training_ to the _imparting of skills_ does not cure unconstitutional vagueness be cause, so defined, the term _training_ could still be read to encompass speech and advocacy protected by the First Amendment. See HLP I, 205 F.3d at 1138 (finding _training_ void for vagueness because _it is easy to im agine protected expression that falls within the bounds of this term_).8

For the foregoing reasons, we reject the govern ment's challenge and agree with the district court that the term _training_ remains impermissibly vague be cause it _implicates, and potentially chills, Plaintiffs' protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct for ordinary people to understand._ DC-HLP III, 380 F. Supp. 2d at 1150 (citing Info. Providers' Coalition, 928 F.2d at 874).

9. 2. _Expert Advice or Assistance_

The district court previously invalidated the unde fined term _expert advice or assistance_ on vagueness grounds. The district court reasoned that the prohibi tion against providing _expert advice or assistance_ could be construed to criminalize activities protected by the First Amendment. Id. at 1151. The government ap pealed. We now have the benefit of IRTPA's language while reviewing this appeal.

IRTPA defines the term _expert advice or assis tance_ as imparting _scientific, technical, or other spe cialized knowledge._ 18 U.S.C. § 2339A(b)(3).

The government argues that the ban on _expert ad vice or assistance_ is not vague. The government relies on the Federal Rules of Evidence's definition of expert testimony as testimony based on _scientific, technical, or other specialized knowledge._ Fed. R. Evid. 702; see also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-91, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). The government argues that this definition gives a person of ordinary intelligence reasonable notice of conduct pro hibited under the statute. Plaintiffs contend that the definition of _expert advice or assistance_ is vague as ap plied to them because they cannot determine what _oth er specialized knowledge_ means.

We agree with the district court that _the Federal Rules of Evidence's inclusion of the phrase _scientific, technical, or other specialized knowledge_ does not clar ify the term _expert advice or assistance_ for the average person with no background in law._ DC-HLP III, 380 F. Supp. 2d at 1151.

At oral argument, the government stated that filing an amicus brief in support of a foreign terrorist organi zation would violate AEDPA's prohibition against pro viding _expert advice or assistance._ Because the _other specialized knowledge_ portion of the ban on providing _expert advice or assistance_ continues to cover consti tutionally protected advocacy, we hold that it is void for vagueness. See HLP I, 205 F.3d at 1137-38; NAACP v. Button, 371 U.S. 415, 432-33, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963) (noting that vagueness and overbreadth de pend on _the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application_).

The portion of the _expert advice or assistance_ defi nition that refers to _scientific_ and _technical_ knowl edge is not vague. Unlike _other specialized know ledge,_ which covers every conceivable subject, the meaning of _technical_ and _scientific_ is reasonably un derstandable to a person of ordinary intelligence. See Houghton Mifflin Reading Spelling and Vocabulary Word Lists (5th Grade), http://www-kes.stjohns.k12.fl. us/wordlists/5th/vocab2.htm (including _technical_ as a fifth-grade vocabulary word); see also Tennessee De partment of Education Third Grade Science Vocabulary, http://jc-schools.net/tutorials/vocab/sci-3.htm (including _scientific method_ on third-grade vocabulary list).

 

10. 3. _Service_

IRTPA amended the definition of _material support or resources_ to add the prohibition on rendering _ser vice_ to a designated foreign terrorist organization. There is no statutory definition of the term _service._

Plaintiffs argue that proscribing _service_ is vague because each of the other challenged provisions could be construed as a provision of _service._ The district court agreed.

We adopt the district court's holding and its reason ing. See DC-HLP III, 380 F. Supp. 2d at 1151-52. The term _service_ presumably includes providing members of PKK and LTTE with _expert advice or assistance_ on how to lobby or petition representative bodies such as the United Nations. _Service_ would also include _train ing_ members of PKK or LTTE on how to use humani tarian and international law to peacefully resolve ongo ing disputes. Thus, we hold that the term _service_ is impermissibly vague because _the statute defines _ser vice_ to include _training_ or _expert advice or assis tance,_ _ and because _ _it is easy to imagine protected expression that falls within the bounds' of the term _ser vice.__ Id. at 1152.9

 

 

11. 4. _Personnel_

In HLP I, we concluded that _personnel_ was imper missibly vague because the term could be interpreted to encompass expressive activity protected by the First Amendment. HLP I, 205 F.3d at 1137. We stated that, _[i]t is easy to see how someone could be unsure about what AEDPA prohibits with the use of the term _person nel,_ as it blurs the line between protected expres sion and unprotected conduct._ Id. We observed that _[s]omeone who advocates the cause of the PKK could be seen as supplying them with personnel. . . . But advo cacy is pure speech protected by the First Amendment._ Id.

As stated above, in 2004, Congress passed IRTPA which amended AEDPA. IRTPA added a limitation to the ban on providing _personnel._ 18 U.S.C. § 2339B(h). Section 2339B(h) clarifies that section 2339B(a) crim inalizes providing _personnel_ to a foreign terrorist or ganization only where a person, alone or with others, _[work]s under that terrorist organization's direction or control or . . . organize[s], manage[s], supervise[s], or otherwise direct[s] the operation of that organization._ Section 2339B(h) also states that the ban on _personnel_ does not criminalize the conduct of _[i]ndividuals who act entirely independently of the foreign terrorist orga nization to advance its goals or objectives._ Id.

As amended by IRTPA, AEDPA's prohibition on providing _personnel_ is not vague because the ban no longer _blurs the line between protected expression and unprotected conduct._ HLP I, 205 F.3d at 1137. Unlike the version of the statute before it was amended by IRTPA, the prohibition on _personnel_ no longer crim inalizes pure speech protected by the First Amendment. Section 2339B(h) clarifies that Plaintiffs advocating law ful causes of PKK and LTTE cannot be held liable for providing these organizations with _personnel_ as long as they engage in such advocacy _entirely independently of th[ose] foreign terrorist organization[s]._ 18 U.S.C. § 2339B(h).

Because IRTPA's definition of _personnel_ provides fair notice of prohibited conduct to a person of ordinary intelligence and no longer punishes protected speech, we hold that the term _personnel_ as defined in IRTPA is not vague.

C. Overbreadth

Plaintiffs argue that the terms _training,_ _person nel,_ _expert advice or assistance_ and _service_ are substantially overbroad. The district court rejected Plaintiffs' challenge. See DC-HLP III, 380 F. Supp. 2d at 1152-53. We affirm.

A statute is facially overbroad when its application to protected speech is _substantial, not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications._ Virginia v. Hicks, 539 U.S. 113, 119-20, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003) (in ternal quotation marks and citations omitted). The Su preme Court held in Hicks that _[r]arely, if ever, will an overbreadth challenge succeed against a law or regula tion that is not specifically addressed to speech or to conduct necessarily associated with speech._ Id. at 124, 123 S. Ct. 2191. The Court reasoned that the _concern with chilling protected speech attenuates as the other wise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct._ Id. (internal quotation marks and citations omitted).

We have previously held that AEDPA's prohibition against providing _material support or resources_ to a designated organization _is not aimed at interfering with the expressive component of [Plaintiffs'] conduct but at stopping aid to terrorist groups._ HLP I, 205 F.3d at 1135. Thus, because the statute is not aimed primarily at speech, an overbreadth challenge is more difficult to show. However, we still conduct the Hicks analysis. That is, we decide whether the material support stat ute's application to protected speech is substantial when compared to the scope of the law's plainly legitimate applications. See Hicks, 539 U.S. at 118-19, 123 S. Ct. 2191.

Section 2339B(a)'s ban on provision of _material sup port or resources_ to designated foreign terrorist orga nizations undoubtably has many legitimate applications. For instance, the importance of curbing terrorism can not be underestimated. Cutting off _material support or resources_ from terrorist organizations deprives them of means with which to carry out acts of terrorism and potentially leads to their demise. Thus, section 2339B(a) can legitimately be applied to criminalize facilitation of terrorism in the form of providing foreign terrorist or ganizations with income, weapons, or expertise in con structing explosive devices. See HLP I, 205 F.3d at 1133.

The Supreme Court cautioned in Hicks that _there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitu tionally unprotected speech, or especially to constitu tionally unprotected conduct._ Hicks, 539 U.S. at 119, 123 S. Ct. 2191. Were we to restrain the government from enforcing section 2339B(a) that prohibits individu als in the United States from providing _material sup port or resources_ to foreign terrorist organizations, we would potentially be placing our nation in danger of fu ture terrorist attacks.

Moreover, although Plaintiffs may be able to identify particular instances of protected speech that may fall within the statute, those instances are not substantial when compared to the legitimate applications of section 2339B(a).

Thus, because AEDPA section 2339B is not aimed at expressive conduct and because it does not cover a sub stantial amount of protected speech, we hold that the prohibition against providing _material support or resources_ to a foreign terrorist organization is not fa cially overbroad.

D. Licensing Scheme

IRTPA added section 2339B(j), an entirely new sec tion, to AEDPA. Section 2339B(j) allows the Secretary of State, with the concurrence of the Attorney General, to grant approval for individuals and organizations to carry out activities that would otherwise be considered providing _material support or resources_ to designated foreign terrorist organizations. 18 U.S.C. § 2339B(j). Section 2339B(j) states that no one can be prosecuted under the terms __personnel,_ _training,_ or _expert ad vice or assistance_ if the provision of that material sup port or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General._ 18 U.S.C. 2339B(j). The ex ception limits the scope of discretion by providing only that the _Secretary of State may not approve the provi sion of any material support that may be used to carry out terrorist activity._ Id.

Plaintiffs argue that this provision constitutes an unconstitutional licensing scheme. We disagree.

Courts may entertain pre-enforcement facial chal lenges to a licensing scheme where the law has a _close enough nexus to expression, or to conduct commonly as sociated with expression, to pose a real and substantial threat of the identified censorship risks._ City of Lake wood v. Plain Dealer Publ'g Co., 486 U.S. 750, 759, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988). A licensing scheme is facially invalid if the _licensing law gives a government official or agency substantial power to dis criminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speaker._ Id . The relevant censorship risks include _self-censorship by speakers in order to avoid being denied a license to speak_ and the _difficulty of effectively detecting, re viewing, and correcting content-based censorship _as ap plied_ without standards by which to measure the licen sor's action._ Id.

In our first decision, we rejected Plaintiffs' challenge to the licensing scheme in another portion of AEDPA that allows the Secretary of State to designate a group as a foreign terrorist organization. See HLP I, 205 F.3d at 1136-37. We held that the Secretary of State's discre tion to designate a group as a foreign terrorist organiza tion was not unconstitutional. See id. We reasoned that _AEDPA does not regulate speech or association per se. Rather, the restriction is on the act of giving material support to designated foreign organizations._ Id. at 1136-37. We reach the same conclusion here.

Section 2339B(j) gives the Secretary of State the discretion to approve the provision of _material support or resources._ It does not regulate speech per se. Rath er, the statute permits the Secretary of State to autho rize the otherwise prohibited provision of _material sup port or resources_ to a designated foreign terrorist or ganization. Indeed, we clarified in HLP I that contribu tions of _material support or resources_ to foreign enti ties designated as foreign terrorist organizations should not be equated with political expression and association itself, even if such organizations are engaged in political expression. See HLP I, 205 F.3d at 1134-35 (contrasting the Buckley doctrine, where monetary support is a proxy for speech and is therefore a constitutionally pro tected activity). Thus, we hold that the discretion given to the Secretary poses no _real and substantial threat_ to Plaintiffs' protected expression or their expressive conduct. See City of Lakewood, 486 U.S. at 759, 108 S. Ct. 2138.

We recognize that it is possible for the Secretary to exercise his or her discretion in a way that discriminates against the donor of _material support or assistance._ For example, the Secretary could conceivably exempt from prosecution a person who teaches peacemaking skills to members of Hezbollah, but deny Plaintiffs im munity from prosecution if they teach the same peace making skills to PKK. However, when evaluating the constitutionality of a licensing scheme, we look at how closely the prior restraint, on its face, regulates consti tutionally protected activity. Here, even though it is possible for the Secretary to refuse to exercise his or her discretion to exempt from prosecution a disliked speaker, any such power is incidental. The statute does not give the Secretary _substantial power to discrimi nate based on the content or viewpoint of speech_ or the identity of the speaker. Id. (emphasis added).

Moreover, in Plaintiffs' case, any potential for con tent or viewpoint-based discrimination or discrimination based on the identity of the speaker is significantly re duced because the government is enjoined from enforc ing those provisions of the statute we hold vague. Thus, because Plaintiffs are already immune from prosecution for protected speech, the danger that the Secretary can base his or her exercise of discretion on Plaintiffs' iden tity or the content or viewpoint of Plaintiffs' message is almost non-existent.

Accordingly, we affirm the district court's holding that section 2339B(j) does not have a close enough nexus to protected speech to allow a facial challenge.

IV. CONCLUSION

For the foregoing reasons, the judgment of the dis trict court is AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Nos. CV98-1971ABCRCX,

CV03-6107ABCRCX

HUMANITARIAN LAW PROJECT, ET AL., PLAINTIFFS

v.

ALBERTO GONZALES, ET AL., DEFENDANTS

July 25, 2005

ORDER RE: PLAINTIFFS' MOTION FOR

SUMMARY JUDGMENT AND DEFENDANTS' MOTION TO DISMISS AND MOTION FOR

SUMMARY JUDGMENT

COLLINS, District Judge.

This action involves a challenge to portions of the Antiterrorism and Effective Death Penalty Act and the Intelligence Reform and Terrorism Prevention Act. Specifically, the parties seek summary judgment re garding the constitutionality of the prohibition on pro viding material support or resources, including _train ing,_ _expert advice or assistance,_ _personnel,_ and _service,_ to designated foreign terrorist organizations.

The Humanitarian Law Project, Ralph Fertig, Ilan kai Thamil Sangam, Dr. Nagalingam Jeyalingam, World Tamil Coordinating Committee, Federation of Tamil Sangams of North America, and Tamil Welfare and Hu man Rights Committee (collectively, _Plaintiffs_) desire to provide support for the lawful activities of two organi zations that have been designated as foreign terrorist organizations. Plaintiffs seek summary judgment and an injunction to prohibit the enforcement of the criminal ban on providing material support to such organizations. Alberto Gonzales (in his official capacity as United States Attorney General), the United States Depart ment of Justice, Condoleeza Rice (in her official capacity as Secretary of the Department of State), and the Uni ted States Department of State (collectively, _Defen dants_) bring a motion to dismiss and cross-motion for summary judgment. After considering the parties' sub missions, the arguments of counsel, and the case file, the Court hereby DENIES Defendants' motion to dismiss and GRANTS IN PART and DENIES IN PART the parties' cross-motions for summary judgment.

I. FACTUAL BACKGROUND

The background of this case is well known to the par ties and to the Court and need not be recited at length here. Plaintiffs are five organizations and two United States citizens seeking to provide support to the lawful, nonviolent activities of the Partiya Karkeran Kurdistan (Kurdistan Workers' Party) (_PKK_) and the Liberation Tigers of Tamil Eelam (_LTTE_). The PKK and the LTTE have been designated as foreign terrorist organ izations.

The PKK is a political organization representing the interests of the Kurds in Turkey, with the goal of achiev ing self-determination for the Kurds in Southeastern Turkey. Plaintiffs allege that the Turkish government has subjected the Kurds to human rights abuses and discrimination for decades. The PKK's efforts on behalf of the Kurds include political organizing and advocacy, providing social services and humanitarian aid to Kur dish refugees, and engaging in military combat with Turkish armed forces.

Plaintiffs wish to support the PKK's lawful and non violent activities towards achieving self-determination. Specifically, Plaintiffs seek to provide training in the use of humanitarian and international law for the peaceful resolution of disputes, engage in political advocacy on behalf of the Kurds living in Turkey, and teach the PKK how to petition for relief before representative bodies like the United Nations.

The LTTE represents the interests of Tamils in Sri Lanka, with the goal of achieving self-determination for the Tamil residents of Tamil Eelam in the Northern and Eastern provinces of Sri Lanka. Plaintiffs allege that the Tamils constitute an ethnic group that has for de cades been subjected to human rights abuses and dis criminatory treatment by the Sinhalese, who have gov erned Sri Lanka since the nation gained its independ ence in 1948. The LTTE's activities include political organizing and advocacy, providing social services and humanitarian aid, defending the Tamil people from hu man rights abuses, and using military force against the government of Sri Lanka.

Plaintiffs wish to support the LTTE's lawful and non violent activities towards furthering the human rights and well-being of Tamils in Sri Lanka. In particular, Plaintiffs emphasize the desperately increased need for aid following the tsunamis that devastated the Sri Lanka region in December 2004, especially in Tamil areas along the Northeast Coast. Plaintiffs seek to provide training in the presentation of claims to mediators and interna tional bodies for tsunami-related aid, offer legal exper tise in negotiating peace agreements between the LTTE and the Sri Lankan government, and engage in political advocacy on behalf of Tamils living in Sri Lanka.

In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the _AEDPA_) proscribing all material support and resources to designated foreign terrorist organizations in the interests of law enforce ment and national security. Specifically, the AEDPA sought to prevent the United States from becoming a base for terrorist fundraising. Congress recognized that terrorist groups are often structured to include po litical or humanitarian components in addition to terror ist components. Such an organizational structure allows terrorist groups to raise funds under the guise of politi cal or humanitarian causes. Those funds can then be diverted to terrorist activities.

Following the September 11, 2001 terrorist attacks on the World Trade Center Twin Towers in New York, Congress enacted the Uniting and Strengthening Amer ica by Providing Appropriate Tools Required to Inter cept and Obstruct Terrorism Act (the _USA PATRIOT Act_) and the Intelligence Reform and Terrorism Pre vention Act (the _IRTPA_) in 2001 and 2004, respec tively, to further its goal of eliminating material sup port or resources to foreign terrorist organizations. The USA PATRIOT Act and the IRTPA amended the AEDPA.

While Plaintiffs are committed to providing the above-mentioned support, they fear doing so would ex pose them to criminal prosecution under the AEDPA for providing material support and resources to foreign ter rorist organizations. Accordingly, Plaintiffs challenge the portion of the AEDPA, as amended by the IRTPA, providing as follows:

Whoever knowingly provides material support or resources to a foreign terrorist organization, or at tempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be im prisoned for any term of years or for life.

18 U.S.C. § 2339B(a).

The AEDPA, as amended by the USA PATRIOT Act and the IRTPA, defines _material support or resources_ as:

any property, tangible or intangible, or service, in cluding currency or monetary instruments or finan cial securities, financial services, lodging, training, expert advice or assistance, safehouses, false docu mentation or identification, communications equip ment, facilities, weapons, lethal substances, explo sives, personnel (1 or more individuals who may be or include oneself), and transportation, except medi cine or religious materials.

18 U.S.C. § 2339A(b)(1) (emphasis added).

II. PROCEDURAL BACKGROUND

The procedural history of the cases before the Court is somewhat complex.

A. Case No. 98-1971

Plaintiffs first filed a complaint on March 19, 1998 in Case No. 98-1971, in which they alleged that the AEDPA violated the First and Fifth Amendments. Spe cifically, Plaintiffs sought a preliminary injunction bar ring the enforcement of the AEDPA against them for three reasons: (1) the AEDPA's prohibition on provid ing material support to foreign terrorist organizations violated the First Amendment rights of freedom of speech and association; (2) the AEDPA unconstitution ally granted the Secretary of State unfettered discre tion to designate disfavored organizations as foreign terrorist organizations; and (3) the terms _training_ and _personnel_ were impermissibly vague under the Fifth Amendment. The Court rejected most of Plaintiffs' ar guments, instead finding that the AEDPA neither vio lated the First Amendment nor allowed the Secretary of State unfettered discretion to blacklist organizations. However, the Court agreed in part with Plaintiffs' argu ments regarding vagueness and, therefore, preliminarily enjoined the prosecution of Plaintiffs and their members under the AEDPA's prohibition on providing _training_ and _personnel_ to foreign terrorist organizations. See Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1176 (C.D. Cal. 1998) (_District Court-HLP I_).

On March 3, 2000, the Ninth Circuit affirmed this Court's order. See Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000) (_HLP I_). In response, this Court issued a permanent injunction on October 2, 2001, which the Ninth Circuit upheld on December 3, 2003. See Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th Cir. 2003) (_HLP II_), vacated, 393 F.3d 902 (9th Cir. 2004). In addition to upholding this Court's conclusion that _train ing_ and _personnel_ are impermissibly vague, the Ninth Circuit's ruling in HLP II construed the AEDPA to require that the donor of material support have knowledge that the recipient either had been designated as a foreign terrorist organization or engaged in terror ist activities. Subsequently, the Ninth Circuit voted to rehear the three-judge panel's ruling in HLP II en banc. See Humanitarian Law Project v. United States De partment of State, 382 F.3d 1154 (9th Cir. 2004).

However, on December 17, 2004, three days after oral argument before the en banc panel, Congress en acted the IRTPA, amending the terms _training,_ _per sonnel,_ _expert advice or assistance_ and adding the term _service_ to the definition of _material support or resources_ to designated terrorist organizations. See 18 U.S.C. §§ 2339A(b); 2339B(h). The IRTPA also clarified a mens rea requirement that the donor know that the foreign terrorist organization has been designated as a foreign terrorist organization or has engaged in terror ist activities. Accordingly, the AEDPA, as amended by the IRTPA, now states: _To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organization, that the organization has engaged or engages in terrorist activity, or that the organization has engaged or engages in terrorism.

. . . _ 18 U.S.C. § 2339B (internal citations omitted).

Subsequently, on December 21, 2004, the Ninth Cir cuit en banc panel declined to decide HLP II in light of Congress's amendment of the terms at issue and adoption of a mens rea requirement. However, the Ninth Circuit affirmed this Court's October 2, 2001 or der holding the terms _training_ and _personnel_ im permissibly vague for the reasons set forth in HLP I. See Humanitarian Law Project v. United States De partment of State, 393 F.3d 902 (9th Cir. 2004). The Ninth Circuit also vacated its order in HLP II, in which it had previously construed the AEDPA to require knowledge that a recipient organization was either a foreign terrorist organization or had engaged in terror ist activities. The Ninth Circuit then remanded the case to this Court for further proceedings. See id.

B. Case No. 03-6107

On October 31, 2001, Congress enacted the USA PA TRIOT Act, amending the AEDPA to add _expert advice or assistance_ to the definition of _material support or resources_ to designated terrorist organizations. See 18 U.S.C. §§ 2339A(b); 2339B(g)(4). Plaintiffs filed a second complaint in this Court on August 27, 2003, in Case No. 03-6107, in which they alleged that the prohibi tion on providing _expert advice and assistance_ viola ted the First and Fifth Amendments. On March 17, 2004, this Court again rejected most of Plaintiffs' argu ments. However, the Court enjoined Defendants from enforcing the _expert advice or assistance_ provision against Plaintiffs, finding the term _expert advice or as sistance,_ like _training_ and _personnel,_ to be imper missibly vague. See Humanitarian Law Project v. Ash croft, 309 F. Supp. 2d 1185 (C.D. Cal. 2004) (_District Court-HLP II_). Thereafter, the parties cross-appealed this Court's ruling to the Ninth Circuit. In view of the IRTPA amendments, the Ninth Circuit subsequently remanded the case to this Court to allow it to be heard with the earlier case.

C. Consolidation of Case No. 98-1971 and Case No. 03-6107

The two cases filed by Plaintiffs (the first construing _training_ and _personnel_ and the second construing _expert advice or assistance_) were consolidated in this Court, and the parties agreed to an extended briefing schedule on the instant cross-motions. On May 16, 2005, Plaintiffs filed the instant motion for summary judg ment. Defendants filed their opposition to Plaintiffs' motion for summary judgment on July 8, 2005.10 Defen dants also filed a motion to dismiss and cross-motion for summary judgment on July 8, 2005. The parties filed replies in support of their respective cross-motions on July 18, 2005 and July 20, 2005. On July 25, 2005, De fendants submitted a supplemental brief without the Court's permission regarding the vagueness challenge. Oral argument was heard on July 25, 2005.

III. LEGAL STANDARDS

A. Motion to Dismiss for Lack of Justiciability

A motion to dismiss will be denied unless it appears that the plaintiff can prove no set of facts that would entitle him or her to relief. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997). All material allega tions in the complaint will be taken as true and con strued in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

Standing is a threshold requirement in every federal case. See Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). _As an aspect of justic iability, the standing question is whether the plaintiff has alleged such a personal stake in the controversy as to warrant his invocation of federal court jurisdiction._ MAI Sys. Corp. v. UIPS, 856 F. Supp. 538, 540 (N.D. Cal. 1994) (citation omitted). Article III standing con sists of _three separate but interrelated components_: _(1) a distinct and palpable injury to the plaintiff; (2) a fairly traceable causal connection between the injury and challenged conduct; and (3) a substantial likelihood that the relief requested will prevent or redress the injury._ Id. (citing McMichael v. County of Napa, 709 F.2d 1268, 1269 (9th Cir. 1983)).

B. Motion for Summary Judgment

Summary judgment shall be granted when there is no genuine issue of material fact and the movant is enti tled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The moving party bears the initial burden of iden tifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to _go beyond the pleadings, and by [its] own affidavits, or by the _deposi tions, answers to interrogatories, or admissions on file,_ designate _specific facts showing that there is a genuine issue for trial.__ Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citations omitted). A dispute about a material fact is genuine _if the evidence is such that a reasonable jury could return a verdict for the nonmoving party._ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party discharges its burden by showing that the nonmoving party has not disclosed the existence of any _significant probative evidence tending to support the complaint._ First Natal Bank v. Cities Serv. Co., 391 U.S. 253, 290, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968). The Court views the inferences drawn from the facts in the light most favorable to the party opposing the mo tion. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contrac tor's Ass'n, 809 F.2d 626, 631 (9th Cir. 1987).

When the parties file cross-motions for summary judgment, the district court must consider all of the evi dence submitted in support of both motions to evaluate whether a genuine issue of material fact exists preclud ing summary judgment for either party. See Fair Hous ing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1135 (9th Cir. 2001).

IV. DISCUSSION

A. Defendants' Motion to Dismiss

Defendants move to dismiss Plaintiffs' challenge to the terms _training,_ _expert advice or assistance,_ _personnel,_ and _service_ _for lack of justiciability_. According to Defendants, Plaintiffs lack standing to bring a vagueness challenge under the Fifth Amend ment for two reasons: (1) Plaintiffs rely on speculative hypotheticals inapplicable to their own conduct; and (2) Plaintiffs conflate vagueness under the First and Fifth Amendments. Plaintiffs oppose Defendants' motion, ar guing that their claims are justiciable under both the First and Fifth Amendments because they face a credi ble threat of prosecution for their own intended activi ties. The Court finds that Defendants' motion to dismiss for lack of justiciability must be DENIED.

_To satisfy the Article III case or controversy re quirement, [a plaintiff] must establish, among other things, that it has suffered a constitutionally cognizable injury-in-fact._ California Pro-Life Council, Inc. v. Get man, 328 F.3d 1088, 1093 (9th Cir. 2003). _[N]either the mere existence of a proscriptive statute nor a general ized threat of prosecution satisfies the _case or con troversy_ requirement._ Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc). Instead, there must be a _genuine threat of imminent prosecution._ Id. _In evaluating the genuine ness of a claimed threat of prosecution, [the Ninth Cir cuit considers] whether the plaintiffs have articulated a _concrete plan_ to violate the law in question, whether the prosecuting authorities have communicated a spe cific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged statute._ Id.

Plaintiffs have identified more than a hypothetical intent to violate the law. In fact, Plaintiffs have provid ed services in the past specifically to the PKK and the LTTE and would do so again if the fear of criminal pros ecution were removed. Plaintiffs' desire to provide ser vices is heightened by the December 2004 tsunamis that impacted the Sri Lankan coast. Further, Defendants' contention that Plaintiffs lack standing to attack the AEDPA for vagueness based on mere hypothetical situ ations ignores the evidence that Plaintiffs submitted regarding their intended activities. Plaintiffs do not seek injunctive relief as to hypothetical activities, but as to their own.11

Finally, Defendants do not contest that Plaintiffs face a threat of prosecution or that the challenged stat ute has been enforced in the past. Plaintiffs' intended activities arguably fall within the statute's reach, and the government has been active in its enforcement of the AEDPA. Therefore, the Court finds that Plaintiffs have sufficiently established standing to assert a vagueness challenge.12

B. The Parties' Cross-Motions for Summary Judg ment

Plaintiffs move for summary judgment on three grounds: (1) the prohibition on providing material sup port or resources to foreign terrorist organizations with out requiring a showing of specific intent to further the organization's unlawful terrorist activities violates due process under the Fifth Amendment; (2) the prohibitions on _training,_ _expert advice or assistance,_ _person nel,_ and _service,_ as amended by the IRTPA, are im permissibly vague under the Fifth Amendment; and (3) the provision exempting prosecution for providing mate rial support to a foreign terrorist organization that has been approved by the Secretary of State is an unconsti tutional licensing scheme under the First Amendment.

Defendants, in turn, seek summary judgment on three grounds: (1) the AEDPA, as amended by the IRTPA, is consistent with Congressional intent, and its mens rea requirement is constitutionally sufficient un der the Fifth Amendment; (2) the terms _training,_ _ex pert advice or assistance,_ _personnel,_ and _service_ are neither vague nor overbroad under the First and Fifth Amendments in relation to Plaintiffs' own conduct; and (3) the IRTPA amendments do not grant the gov ernment unconstitutional licensing authority.

After considering the arguments, the Court finds that the parties' cross-motions for summary judgment must be GRANTED IN PART and DENIED IN PART as follows: (1) the prohibition on providing material sup port to foreign terrorist organizations without requiring a showing of specific intent to further the organization's unlawful terrorist activities does not violate due process under the Fifth Amendment; (2) the terms _training,_ _expert advice or assistance,_ and _service_ are imper missibly vague; (3) the term _personnel_ is not imper missibly vague; (4) the prohibitions on providing _train ing,_ _expert advice or assistance,_ _personnel,_ and _service_ are not overbroad; and (5) the exemption from prosecution for providing material support that has been approved by the Secretary of State is not an unconstitu tional licensing scheme under the First Amendment. The Court addresses each of these issues in turn below.

1. The Prohibition on Providing Material Support or Resources Does Not Violate the Fifth Amendment.

Citing Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961), Plaintiffs argue that the AEDPA's prohibition on providing material support or resources to foreign terrorist organizations violates due process under the Fifth Amendment. Specifically, Plain tiffs contend that the prohibition imposes vicarious crim inal liability without requiring proof of specific intent to further the terrorist activities of foreign terrorist orga nizations. Plaintiffs, therefore, urge the Court to read a specific intent mens rea requirement into 18 U.S.C. § 2339B in order to avoid Fifth Amendment due process concerns.

Defendants, in contrast, assert that the AEDPA does not impose vicarious criminal liability, but instead pro hibits only the conduct of giving material support or resources to foreign terrorist organizations. Moreover, Defendants point to Congressional intent regarding the mens rea required and Congress's wide latitude to legis late in the foreign affairs arena. Defendants also con tend that the Ninth Circuit previously rejected the spe cific intent argument in HLP II. Finally, Defendants note that the IRTPA amendment requiring that a donor know that the recipient of the material support is a for eign terrorist organization adequately addresses Plain tiffs' concerns regarding specific intent.

As further explained below, the Court finds that the AEDPA does not violate due process under the Fifth Amendment and, therefore, declines to read a specific intent requirement into the statute. First, Scales is inapposite, as the holding there turned on specific facts not present here. Second, the clear and unambiguous Congressional intent to exclude a specific intent require ment precludes a judicial interpretation of a specific intent element. Finally, the statute's current require ment that a donor know that the recipient of material support is a foreign terrorist organization eliminates any Fifth Amendment due process concerns.

a. Scales Is Distinguishable from This Case.

Plaintiffs rely primarily on Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961), a Communist Party membership case, to support their argument that the AEDPA violates due process under the Fifth Amendment. Scales involved a Fifth Amend ment challenge to a conviction under the Smith Act, which prohibited membership in a group advocating the overthrow of the government by force or violence, with punishment by fine or imprisonment for up to twenty years. See Scales, 367 U.S. at 206 n.1, 81 S. Ct. 1469; 18 U.S.C. § 2385. The defendant contended that the Smith Act violated the Fifth Amendment because it un constitutionally imputed guilt based on associational membership rather than concrete criminal conduct. The Supreme Court agreed that _[i]n our jurisprudence guilt is personal_ and that _[m]embership, without more, in an organization engaged in illegal advocacy_ was insuffi cient to satisfy personal guilt. Id. at 224-25, 81 S. Ct. 1469. Nevertheless, the Supreme Court upheld the con viction because the defendant was not merely a member of the Communist Party, but had committed concrete acts with a specific intent to further the organization's illegal activities. Id. at 226-27, 81 S. Ct. 1469.

Plaintiffs attempt to stretch the Scales holding re garding the Smith Act into a general rule that specific intent is always constitutionally required. However, Scales was not so broad, but focused specifically on the Smith Act's criminal prohibition on membership in cer tain organizations, including the Communist Party. In deed, membership itself was an element of the offense. While Scales discussed the concept of personal guilt in relation to _status or conduct,_ a close reading of Scales reveals that at heart, it was concerned with criminaliz ing associational membership in violation of the First Amendment.13 By requiring specific intent in addition to actual membership, the Supreme Court sought to _pre vent[ ] a conviction on what otherwise might be regard ed as merely an expression of sympathy with the alleged criminal enterprise, unaccompanied by any significant action in its support or any commitment to undertake such action._ Scales, 367 U.S. at 228, 81 S. Ct. 1469. In contrast, the AEDPA does not criminalize mere mem bership, association, or expressions of sympathy with foreign terrorist organizations.14 Instead, the AEDPA permits membership and affiliation with foreign terror ist organizations, but prohibits the conduct of providing material support or resources to an organization that one knows is a designated foreign terrorist organization or is engaged in terrorist activities.

b. Clear Congressional Intent Precludes a Judicial Reading of Specific Intent Into the AEDPA.

Plaintiffs urge the Court to read an additional mens rea requirement into 18 U.S.C. § 2339B to require the government to prove that a donor specifically intended to further the terrorist activities of the foreign terrorist organization.15 Plaintiffs cite three cases in which the Supreme Court read a mens rea requirement into fed eral criminal statutes, namely, Liparota v. United States, 471 U.S. 419, 105 S. Ct. 2084, 85 L. Ed. 2d 434 (1985), Staples v. United States, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), and U.S. v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). As explained below, none of these cases war rants a judicial interpretation that would contravene the clear Congressional intent to dispense with a specific intent requirement.

In Liparota, the Supreme Court interpreted a fed eral statute criminalizing the acquisition or possession of food stamps in any unauthorized manner to include a mens rea requirement that a defendant must know that he or she acquired or possessed food stamps in an unau thorized manner. In doing so, the Supreme Court noted that Congress has the power to define the elements of a federal statutory crime: _The definition of the elements of a criminal offense is entrusted to the legislature, par ticularly in the case of federal crimes, which are solely creatures of statute._ Liparota, 471 U.S. at 424, 105 S. Ct. 2084. Finding, however, that the legislative history of the statute was silent as to a mens rea requirement and that criminal statutes without mens rea are __gen erally disfavored,__ the Court concluded that it was pro per to read a mens rea element into the statute. Id. at 425-26, 105 S. Ct. 2084 (quoting United States v. Gyp sum Co., 438 U.S. 422, 438, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978)). In so concluding, the Supreme Court noted that its result would likely have been different if Con gress had intended to omit a mens rea element to the offense:

Of course, Congress could have intended that this broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. How ever, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.

Id. at 427, 105 S. Ct. 2084. Thus, the Court unequivo cally recognized that Congress, as the creator of federal crimes, has the power to dispense with mens rea, even when doing so would criminalize a broad range of con duct.

Subsequently, in Staples, the Supreme Court inter preted the National Firearms Act, which criminalizes the possession of an unregistered firearm by up to ten years imprisonment, to have a mens rea element. See 26 U.S.C. § 5861(d). Specifically, the Supreme Court held that a defendant must know that the gun he or she pos sesses is actually a firearm in order to be convicted. See Staples, 511 U.S. at 619, 114 S. Ct. 1793. In construing a mens rea requirement, the Court drew on statutory construction and legislative intent, reiterating that _[w]e have long recognized that determining the mental state required for commission of a federal crime requires _construction of the statute and . . . inference of the intent of Congress.__ Id., at 605, 114 S. Ct. 1793 (quot ing United States v. Balint, 258 U.S. 250, 253, 42 S. Ct. 301, 66 L. Ed. 604 (1922)). As that section of the Na tional Firearms Act was silent as to scienter, the Su preme Court construed the statute to include mens rea, noting that the statute's harsh penalties further sup ported such a reading. However, the Supreme Court emphasized that its holding was _a narrow one,_ depend ent on the lack of Congressional intent in that case to dispense with mens rea. Staples, 511 U.S. at 619, 114 S. Ct. 1793. Moreover, the Supreme Court again reiter ated that Congress had the authority to eliminate a mens rea requirement: _[I]f Congress thinks it neces sary to reduce the Government's burden at trial to en sure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a mens rea requirement._ Id. at 616 n.11, 114 S. Ct. 1793.

Several months later, in X-Citement Video, the Su preme Court interpreted the Protection of Children Against Sexual Exploitation Act, which prohibits the interstate transportation of visual depictions of minors engaged in sexually explicit conduct, to require that a defendant knew that the performers were minors. See 18 U.S.C. § 2252(a)(1)(A)-(2)(A). The Supreme Court noted that both the statutory construction and legisla tive history could support a scienter requirement, which would help justify the harsh penalties and avoid absurd applications of the statute.16 See X-Citement Video, 513 U.S. at 69-72, 115 S. Ct. 464. In so concluding, the Su preme Court again acknowledged Congress's authority to craft statutes without a mens rea element, observing that courts may construe a mens rea requirement _so long as such a reading is not plainly contrary to the in tent of Congress._ Id. at 78, 115 S. Ct. 464 (emphasis added).

Accordingly, following Liparota, Staples, and X-Cite ment Video, the Court must analyze the statutory lan guage and Congressional intent with respect to the AEDPA, as amended by the IRTPA.17 The AEDPA's statutory language regarding the mens rea required is straightforward, namely, that a donor know that the recipient of the material support is a foreign terrorist organization or engages in terrorist activities. See 18 U.S.C. § 2339B.

With respect to legislative intent, moreover, Con gress's intent regarding the level of mens rea required for violation of 18 U.S.C. § 2339B is clear and unambigu ous. First, Congress enacted 18 U.S.C. § 2339B in 1996, only two years after it had enacted 18 U.S.C. § 2339A, which prohibits the provision of material support or re sources _knowing or intending_ that they be used for executing violent federal crimes. 18 U.S.C. § 2339A. While the statutory language of § 2339A includes an ex plicit mens rea requirement to further illegal activities, such a requirement is notably missing from the statu tory language of § 2339B. Instead, § 2339B requires only that an individual knowingly provide material sup port or resources.18 This Court must assume that Con gress knows how to include a specific intent requirement when it so desires, as evidenced by § 2339A, and that Congress acted deliberately in excluding such an intent requirement in § 2339B.19

Second, the legislative history indicates that Con gress enacted § 2339B in order to close a loophole left by § 2339A. Congress, concerned that terrorist organiza tions would raise funds _under the cloak of a humanitar ian or charitable exercise,_ sought to pass legislation that would _severely restrict the ability of terrorist or ganizations to raise much needed funds for their terror ist acts within the United States._ H.R. Rep. 104-383, at *43 (1995). As § 2339A was limited to donors intending to further the commission of specific federal offenses, Congress passed § 2339B to encompass donors who ac ted without the intent to further federal crimes.

In fact, during Congressional hearings on the legisla tion, representatives from civil liberties, humanitarian, and religious organizations objected to the criminaliza tion of all donations without regard to a donor's intent and a donee's humanitarian deeds. See _Civil Liberties Implications of H.R. 1710, the Comprehensive Antiter rorism Act of 1995 and Related Legislative Responses to Terrorism_: Hearing before the United States House of Representatives Committee on the Judiciary, 104th Con gress (1995) (statement of Gregory T. Nojeim of the American Civil Liberties Union); _The Comprehensive Antiterrorism Act of 1995 and Its Implications for Civil Liberties_: Hearing before the House Committee on the Judiciary, 104th Congress (1995) (statement of Azizah Y. Al-Hibri, American Muslim Council); _The Comprehen sive Antiterrorism Act of 1995 and Its Implications for Civil Liberties_: Hearing before the House Committee on the Judiciary, 104th Congress (1995) (statement of Ehalil E. Jahshan, National Association of Arab Ameri cans).20

Congress, however, rejected these objections in en acting § 2339B. In fact, it made a specific finding that _foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contri bution to such an organization facilitates that conduct._21 AEDPA § 301(a)(7), 18 U.S.C. § 2339B note. Congress's concerns regarding the fungibility of money and re sources have also been noted by the Ninth Circuit. See HLP I, 205 F.3d at 1136 (_More fundamentally, money is fungible; giving support intended to aid an organiza tion's peaceful activities frees up resources that can be used for terrorist acts._). Moreover, the single sentence to which Plaintiffs cling-Senator Orrin Hatch's 1996 statement-is insufficient to negate Congress's subse quently enacted and amended clear intent.22 This iso- lated statement does not justify a judicial reading of specific intent into the statute, particularly given that Senator Hatch subsequently supported the IRTPA with out a specific intent provision.

Finally, Congress's 2004 IRTPA amendment under scores Congress's decision to dispense with any specific intent requirement. The 2004 IRTPA amendment clari fied that the only mens rea required under § 2339B is that a donor know that the recipient is a foreign terror ist organization.23 Notably, Congress passed the IRTPA in the aftermath of the Ninth Circuit's decision in HLP II and the Middle District of Florida's contrasting decision in United States v. Al-Arian, 308 F. Supp. 2d 1322 (M.D. Fla. 2004) and United States v. Al-Arian, 329 F. Supp. 2d 1294 (M.D. Fla. 2004), (together, _Al- Arian_). As discussed above, the Ninth Circuit held in HLP II that the Fifth Amendment required the govern ment to prove that a donor knew the recipient was either a foreign terrorist organization or engaged in terrorist activities. The Middle District of Florida held in Al- Arian that the Fifth Amendment required the govern ment to prove that a donor not only knew the recipient was a foreign terrorist organization, but also that the donor specifically intended to further the terrorist activ ities of the foreign terrorist organization. This Court must assume that Congress, with full awareness of these decisions, incorporated the HLP II holding into the stat ute and rejected the Al-Arian ruling requiring specific intent. Therefore, the Court finds that an imposition of specific intent to further terrorist activities cannot be reconciled with Congress's clear intent in passing the AEDPA and the IRTPA.24

Based on Congress's recent IRTPA amendments, the Court believes that Congress would prefer to further amend the statute to cure any remaining vagueness problems rather than have a court impose a mens rea requirement that would eliminate the distinctions Con gress purposely drew between § 2339B versus §§ 2339A and 2339C.25 If, contrary to its findings and the legisla- tive history of § 2339B, Congress did not, in fact, intend to dispense with a mens rea specific intent requirement, it remains free to amend the statute by explicitly requir ing the additional element of specific intent. See Sta ples, 511 U.S. at 616 n.11, 114 S. Ct. 1793.

c. The Mens Rea Requirement in § 2339B Satisfies Any Due Process Concerns.

In any event, Congress's recent clarification of the mens rea required under § 2339B satisfies any due pro cess issues under the Fifth Amendment. Significantly, the Ninth Circuit in HLP II did not extend its Fifth Amendment analysis of Scales to require that the gov ernment prove specific intent to further terrorist activi ties.26 Rather, the Ninth Circuit held that it was suffi cient to _avoid due process concerns_ to require that the government _prove beyond a reasonable doubt that the accused knew that the organization was designated as a foreign terrorist organization or that the accused knew of the organization's unlawful activities that caused it to be so designated._27 HLP II, 352 F.3d at 405. The AEDPA, as amended by the IRTPA, incorporates this reading of mens rea and prohibits the provision of mate rial support to a recipient that the donor knows is a for eign terrorist organization.28 Accordingly, Congress's clarification of the mens rea requirement satisfies the notion of personal guilt under the Due Process Clause because an offender must know that he or she was mate rially supporting a foreign terrorist organization.

2. The Prohibitions on _Training,_ _Expert Advice or Assistance,_ and _Service_ Are Impermissibly Vague, but _Personnel_ Is Permissible.

Plaintiffs argue that the IRTPA amendments of the terms _training,_ _expert advice or assistance,_ and _personnel_ fail to cure the vagueness concerns identi fied in HLP I, District Court-HLP I, and District Court-HLP II. Plaintiffs allege that, in fact, the IRTPA amendments exacerbate the vagueness concerns.29 Moreover, Plaintiffs contend that Congress added an other vague term, _service,_ to the statute. Defendants respond that the terms _training,_ _expert advice or as sistance,_ _personnel,_ and _service_ are clear and straightforward.30

A challenge to a statute based on vagueness grounds requires the court to consider whether the statute is _sufficiently clear so as not to cause persons _of common intelligence . . . necessarily [to] guess at its meaning and [to] differ as to its application.__ United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1996) (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)). Vague statutes are void for three reasons: _(1) to avoid punishing people for be havior that they could not have known was illegal; (2) to avoid subjective enforcement of the laws based on _ar bitrary and discriminatory enforcement_ by government officers; and (3) to avoid any chilling effect on the exer cise of First Amendment freedoms._ Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972)).

_[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whe ther it threatens to inhibit the exercise of constitution ally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply._ Village of Hoff man Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362 (1982). _The requirement of clarity is enhanced when criminal sanctions are at issue or when the statute abuts upon sensitive areas of basic First Amendment freedoms._ Information Providers' Coalition for the Defense of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir. 1991) (internal quotation marks and citations omit ted). Thus, under the Due Process Clause, a criminal statute is void for vagueness if it _fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute._ United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 989 (1954). A criminal statute must therefore _define the criminal offense with sufficient definiteness that ordi nary people can understand what conduct is prohibited. . . . _ Kolender v. Lawson, 461 U.S. 352, 357, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983).

After considering the arguments, the Court finds that the terms _training,_ _expert advice or assistance,_ and _service_ are impermissibly vague under the Fifth Amendment. With respect to the term _personnel,_ the Court finds that the IRTPA amendment to _personnel_ sufficiently cures the previous vagueness concerns. The Court addresses each of these terms separately below.

a. _Training_ Is Impermissibly Vague.

This Court previously concluded that _training,_ an undefined term, was impermissibly vague because it easily reached protected activities, such as teaching how to seek redress for human rights violations before the United Nations. See District Court-HLP I, 9 F. Supp. 2d at 1204, aff'd, 205 F.3d 1130, 1138. The IRTPA amendment now defines _training_ as _instruction or teaching designed to impart a specific skill, as opposed to general knowledge._ 18 U.S.C. § 2339A(b)(2).

Plaintiffs contend that the amendment to _training_ exacerbates the vagueness problem because Plaintiffs must now guess whether teaching international law, peacemaking, or lobbying constitutes a _specific skill_ or _general knowledge._ Defendants respond that training encompasses a broad range of conduct, ranging from flying lessons to training in the use of weapons.

The Court agrees with Plaintiffs that the IRTPA amendment to _training_ (distinguishing between _spe cific skill_ and _general knowledge_) fails to cure the vagueness concerns that the Court previously identified. Even as amended, the term _training_ is not sufficiently clear so that persons of ordinary intelligence can reason ably understand what conduct the statute prohib its. Moreover, the IRTPA amendment leaves the term _training_ impermissibly vague because it easily encom passes protected speech and advocacy, such as teaching international law for peacemaking resolutions or how to petition the United Nations to seek redress for human rights violations.31

In fact, the Ninth Circuit indicated in HLP I that limiting _training_ to the _imparting of skills_ would be insufficient because such a definition would encompass protected speech and advocacy activities. The Ninth Circuit explained:

Again, it is easy to imagine protected expression that falls within the bounds of this term. For example, a plaintiff who wishes to instruct members of a desig nated group on how to petition the United Nations to give aid to their group could plausibly decide that such protected expression falls within the scope of the term _training._ The government insists that the term is best understood to forbid the imparting of skills to foreign terrorist organizations through training. Yet, presumably, this definition would en compass teaching international law to members of designated organizations. The result would be dif ferent if the term _training_ were qualified to include only military training or training in terrorist activi ties.

HLP I, 205 F.3d at 1138.

_Training_ implicates, and potentially chills, Plain tiffs' protected expressive activities and imposes crimi nal sanctions of up to fifteen years imprisonment with out sufficiently defining the prohibited conduct for ordi nary people to understand. Therefore, the Court finds that _training_ fails to satisfy the enhanced requirement of clarity for statutes touching upon protected activities under the First Amendment or imposing criminal sanc tions. See Information Providers' Coalition for the De fense of the First Amendment, 928 F.2d at 874.

 

 

b. _Expert Advice or Assistance_ Is Impermissibly Vague.

The Court previously found _expert advice or assis tance,_ an undefined term, to be impermissibly vague under the same analysis it applied to _training_ and _personnel_ because _expert advice or assistance_ could be construed to include First Amendment protected ac tivities. See District Court-HLP II, 309 F. Supp. 2d at 1200-01 (_The _expert advice or assistance_ Plaintiffs seek to offer includes advocacy and associational activi ties protected by the First Amendment, which Defen dants concede are not prohibited under the USA PA TRIOT Act._).

The IRTPA amendments define _expert advice or assistance_ as _scientific, technical, or other specialized knowledge._ 18 U.S.C. § 2339A(b)(3) (emphasis added). Plaintiffs contend that the _specialized knowledge_ por tion of this definition is vague because it merely repeats what an expert is and provides no additional clarity. Similar to their attack on the term _training,_ Plaintiffs assert that they must now guess whether their expert advice constitutes _specialized knowledge._ Defendants argue that _expert advice or assistance_ is not vague be cause the definition is derived from the established Fed eral Rules of Evidence regarding expert testimony.

The Court agrees with Plaintiffs that the IRTPA amendment to _expert advice or assistance_ (adding _specialized knowledge_) does not cure the vagueness issues. Even as amended, the statute fails to identify the prohibited conduct in a manner that persons of ordi nary intelligence can reasonably understand. Similar to the Court's discussion of _training_ above, _expert ad vice or assistance_ remains impermissibly vague because _specialized knowledge_ includes the same protected ac tivities that _training_ covers, such as teaching interna tional law for peacemaking resolutions or how to petition the United Nations to seek redress for human rights violations. Moreover, the Federal Rules of Evidence's inclusion of the phrase _scientific, technical, or other specialized knowledge_ does not clarify the term _expert advice or assistance_ for the average person with no background in law. Accordingly, the Court finds that the _expert advice or assistance_ fails to provide fair no tice of the prohibited conduct and is impermissibly vague.32

c. _Service_ Is Impermissibly Vague.

Plaintiffs attack the IRTPA's insertion of the unde fined term _service_ to the definition of _material sup port or resources_ on vagueness grounds.33 According to Plaintiffs, the prohibition on _service_ is at least as sweeping as the prohibitions on _training,_ _expert ad vice or assistance,_ and _personnel,_ as each of these could be construed as services. Defendants concede that the term _service_ is broad, but argue that it is a com mon term that the dictionary defines (among other defi nitions) as _an act done for the benefit or at the com mand of another_ or _useful labor that does not produce a tangible commodity._ Defendants' Opposition at 21. Plaintiffs reply that Defendants' own definition is vague and would infringe on all sorts of speech and advocacy done for the benefit of another that is clearly protected by the First Amendment.

In addition, Plaintiffs note that Defendants' argu ment that any activity done _for the benefit of another _ would violate the ban on _services_ contradicts Defen dants' concession that Plaintiffs could freely engage in _human rights and political advocacy on behalf of the PKK and the Kurds before any forum of their choosing._ Defendants' Opposition at 17 (emphasis added). Plain tiffs argue that this supposed distinction proves their point. In other words, _service_ is impermissibly vague because it forces Plaintiffs to guess whether their hu man rights and political advocacy constitutes action taken _on behalf of another,_ which Defendants concede is protected action, or _for the benefit of another,_ which Defendants argue is prohibited.

The Court finds that the undefined term _service_ in the IRTPA is impermissibly vague, as the statute de fines _service_ to include _training_ or _expert advice or assistance,_ terms the Court has already ruled are vague. Like _training_ and _expert advice or assis tance,_ _it is easy to imagine protected expression that falls within the bounds of_ the term _service._ HLP I, 205 F.3d at 1137. Moreover, there is no readily appar ent distinction between taking action _on behalf of another_ and _for the benefit of another._ Defendants' contradictory arguments on the scope of the prohibition only underscore the vagueness. As with _training_ and _expert advice or assistance,_ the term _service_ fails to meet the enhanced requirement of clarity for statutes affecting protected expressive activities and imposing criminal sanctions.

d. _Personnel_ Is Not Impermissibly Vague.

The Court previously found personnel to be imper missibly vague because it _broadly encompasses the type of human resources which Plaintiffs seek to pro vide, including the distribution of LTTE literature and informational materials and working directly with PKK members at peace conferences and other meetings._ District Court-HLP I, 9 F. Supp. 2d at 1204. The Ninth Circuit affirmed, finding that the ban on personnel _blurs the line between protected expression and unpro tected conduct,_ as an individual _who advocates the cause of the PKK could be seen as supplying them with personnel._ HLP I, 205 F.3d at 1137.

The IRTPA amendment now limits prosecution for providing _personnel_ to the provision of _one or more individuals_ to a foreign terrorist organization _to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization._ 18 U.S.C. § 2339B(h). Further, the statute states that _[i]ndividu als who act entirely independently of the foreign terror ist organization to advance its goals or objectives shall not be considered to be working under the foreign ter rorist organization's direction and control._ Id. Plain tiffs argue that the new language distinguishing be tween acting under an organization's _direction and control_ and acting _independently_ still impinges on protected activities. Defendants respond that the IRTPA amendments use clear terms that are readily understandable to persons of ordinary intelligence.

The Court finds that the IRTPA amendment suffi ciently narrows the term _personnel_ to provide fair notice of the prohibited conduct. Limiting the provision of personnel to those working under the _direction or control_ of a foreign terrorist organization or actually managing or supervising a foreign terrorist organization operation sufficiently identifies the prohibited conduct such that persons of ordinary intelligence can reason ably understand and avoid such conduct.

3. The Prohibitions on _Training,_ _Expert Advice or Assistance,_ _Personnel,_ and _Service_ Are Not Substantially Overbroad.

Plaintiffs also contend that the prohibitions on _training,_ _expert advice or assistance,_ _personnel,_ and _service_ are sweepingly overbroad because they proscribe a substantial amount of speech activity that is protected by the First Amendment.34

_The First Amendment doctrine of overbreadth is an exception to [the] normal rule regarding the standards for facial challenges._ Virginia v. Hicks, 539 U.S. 113, 118, 123 S. Ct. 2191, 156 L. Ed. 2d 148 (2003). Under the overbreadth doctrine, a _showing that a law punishes a _substantial_ amount of protected free speech, _judged in relation to the statute's plainly legitimate sweep, suf fices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deter rence to constitutionally protected expression.'" Id. at 118-19, 123 S. Ct. 2191 (internal quotation marks and ci tations omitted).

However, the Supreme Court has recognized that _there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot jus tify prohibiting all enforcement of that law-particularly a law that reflects _legitimate state interests in main taining comprehensive controls over harmful, constitu tionally unprotected conduct.__ Hicks, 539 U.S. at 119, 123 S. Ct. 2191 (citations omitted). Accordingly, the Supreme Court requires that the _law's application to protected speech be _substantial,_ not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications before applying the _strong med icine_ of the overbreadth invalidation._ Id.

This Court has previously rejected Plaintiffs' over breadth arguments and sees no reason to revisit the is sue, as the arguments remain the same. Plaintiffs have failed to establish that the prohibitions on _training,_ _personnel,_ _expert advice or assistance,_ and _service_ are substantially overbroad, as the prohibitions are con tent-neutral and their purpose of deterring and punish ing the provision of material support to foreign terrorist organizations is legitimate. Further, the statute's appli cation to protected speech is not _substantial_ both in an absolute sense and relative to the scope of the law's plainly legitimate applications. The Court, therefore, declines to apply the _strong medicine_ of the over breadth doctrine, finding instead that as-applied litiga tion will provide a sufficient safeguard for any potential First Amendment violation.

 

4. The IRTPA Does Not Impose an Unconstitutional Discretionary Licensing Scheme.

Plaintiffs' final argument in support of their motion for summary judgment is that the IRTPA exception to prosecution under 18 U.S.C. § 2339B(j) constitutes an unconstitutional licensing scheme.35 The statutory ex ception provides:

No person may be prosecuted under this section in connection with the term _personnel,_ _training,_ or _expert advice or assistance_ if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity.

18 U.S.C. § 2339B(j).

According to Plaintiffs, this provision grants the Sec retary of State unfettered discretion to license speech because it targets those sections of 18 U.S.C. § 2339B(a) that concern expressive activity, namely, _training,_ _ex pert advice or assistance,_ and _personnel,_ and vests a government official with unbridled discretion to permit individuals to provide such support to foreign terrorist organizations. Plaintiffs rely on cases involving prior restraints to support their argument that 18 U.S.C. § 2339B(j) is an unconstitutional licensing scheme.

In City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988), the Supreme Court struck down a licensing statute re quiring permits from the mayor to place newspaper racks on public property because _in the area of free ex pression a licensing statute placing unbridled discretion in the hands of a government official or agency consti tutes a prior restraint and may result in censorship._ City of Lakewood, 486 U.S. at 757, 108 S. Ct. 2138. Simi larly, in Forsyth County v. The Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992), the Supreme Court invalidated an ordinance regarding assembly and parade permit fees as an overly broad pri or restraint on public speech. In striking the ordinance, the Supreme Court noted that a licensing scheme must be narrowly tailored with reasonable and definite standards, and must not be content-based or delegate overly broad discretion to the issuing official. See For syth County, 505 U.S. at 130-33, 112 S. Ct. 2395. See also FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226-27, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990) (prior re straint must include a time limit within which govern ment official must decide whether to issue a license).

Defendants respond that these cases do not apply to the instant case, as § 2339B(j) is not a prior restraint li censing scheme. While conceding that the City of Lake wood and Forsyth involved restrictions on speech pend ing a permit from a government official, Defendants maintain that § 2339B(j) imposes no restriction at all on Plaintiffs' activities. Rather, according to Defendants, the other sections of the AEDPA, as discussed earlier, prohibit Plaintiffs from providing material support or resources to foreign terrorist organizations. See 18 U.S.C. § 2339B(a).36

The Court finds that 18 U.S.C. § 2339B(j) does not impose an unconstitutional licensing scheme. In fact, § 2339B(j) operates as an exception to prosecution un der § 2339B(a) for providing material support or re sources as to _training,_ _expert advice or assistance,_ and _personnel._ As this Court has previously held, the AEDPA's actual prohibition on providing material sup port is not directed to speech or advocacy in violation of the First Amendment. See District Court-HLP I, 9 F. Supp. 2d at 1196-97, aff'd, 205 F.3d at 1135-36. Rather, Plaintiffs are restricted only from the conduct of provid ing material support to foreign terrorist organizations and remain free to exercise their First Amendment rights with no prior restraints. Accordingly, the City of Lakewood and Forsyth are inapplicable to this case.37 The Court therefore DENIES Plaintiffs' motion for summary judgment on this basis, finding that Plaintiffs have failed to establish that 18 U.S.C. § 2339B(j) is an unconstitutional licensing scheme in violation of the First Amendment.

V. CONCLUSION

The Court concludes that Plaintiffs have standing to raise vagueness challenges to the terms _training,_ _ex pert advice or assistance,_ _personnel,_ and _service._ Therefore, Defendants' motion to dismiss for lack of standing is DENIED.

The parties' cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART as follows:

1. The Court finds that the lack of a specific in tent requirement to further the terrorist activi ties of foreign terrorist organizations in the AEDPA's prohibition on providing material sup port or resources to foreign terrorist organiza tions does not violate due process under the Fifth Amendment. The Court therefore GRANTS De fendants' motion and DENIES Plaintiffs' motion on this ground.

2. The Court finds that the AEDPA's prohibi tions on material support or resources in the form of _training,_ _expert advice or assistance,_ _per sonnel,_ and _service_ are not overbroad under the First Amendment. The Court therefore GRANTS Defendants' motion and DENIES Plain tiffs' motion on this ground.

3. The Court finds that the term _personnel_ is not impermissibly vague under the Fifth Amend ment. The Court therefore GRANTS Defen dants' motion and DENIES Plaintiffs' motion on this ground.

4. The Court finds that the terms _training_; _ex pert advice or assistance_ in the form of _special ized knowledge_; and _service_ are impermissibly vague under the Fifth Amendment. The Court therefore GRANTS Plaintiffs' motion and DE NIES Defendants' motion on this ground.

5. The Court finds that the IRTPA amendment prohibiting the prosecution of donors who re ceived approval from the Secretary of State to provide material support or resources is not an unconstitutional licensing scheme under the First Amendment. The Court therefore GRANTS De fendants' motion and DENIES Plaintiffs' motion on this ground.

Accordingly, Defendants, their officers, agents, em ployees, and successors are ENJOINED from enforcing 18 U.S.C. § 2339B's prohibition on providing _training_; _expert advice or assistance_ in the form of _specialized knowledge_; or _service_ to the PKK or the LTTE against any of the named Plaintiffs or their members.38 The Court declines to grant a nationwide injunction.

IT IS SO ORDERED.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

16. APPENDIX C

 

1. 18 U.S.C. 2339A provides:

Providing material support to terrorists

(a) OFFENSE.-Whoever provides material support or resources or conceals or disguises the nature, loca tion, source, or ownership of material support or re sources, knowing or intending that they are to be used in preparation for, or in carrying out, a violation of sec tion 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), section 46502 or 60123(b) of title 49, or any offense listed in section 2332b(g)(5)(B) (except for sections 2339A and 2339B) or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. A violation of this section may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law.

(b) DEFINITIONS.-As used in this section-

(1) the term _material support or resources_ means any property, tangible or intangible, or ser vice, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communica tions equipment, facilities, weapons, lethal substanc es, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, ex cept medicine or religious materials;

(2) the term _training_ means instruction or teaching designed to impart a specific skill, as op posed to general knowledge; and

(3) the term _expert advice or assistance_ means advice or assistance derived from scientific, technical or other specialized knowledge.

 

2. 18 U.S.C. 2339B provides in pertinent part:

Providing material support or resources to designated foreign terrorist organizations

(a) PROHIBITED ACTIVITIES.-

(1) UNLAWFUL CONDUCT.-Whoever knowingly pro vides material support or resources to a foreign terror ist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have knowledge that the organization is a designated terrorist organiza tion (as defined in subsection (g)(6)), that the organiza tion has engaged or engages in terrorist activity (as de fined in section 212(a)(3)(B) of the Immigration and Na tionality Act), or that the organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989).

* * * * *

(c) INJUNCTION.-Whenever it appears to the Sec retary or the Attorney General that any person is en gaged in, or is about to engage in, any act that consti tutes, or would constitute, a violation of this section, the Attorney General may initiate civil action in a district court of the United States to enjoin such violation.

(d) EXTRATERRITORIAL JURISDICTION.-

(1) IN GENERAL.-There is jurisdiction over an offense under subsection (a) if-

(A) an offender is a national of the United States (as defined in section 101(a)(22) of the Im migration and Nationality Act (8 U.S.C. 1101(a)(22))) or an alien lawfully admitted for per manent residence in the United States (as defined in section 101(a)(20) of the Immigration and Na tionality Act (8 U.S.C. 1101(a)(20)));

(B) an offender is a stateless person whose ha bitual residence is in the United States;

(C) after the conduct required for the offense occurs an offender is brought into or found in the United States, even if the conduct required for the offense occurs outside the United States;

(D) the offense occurs in whole or in part within the United States;

(E) the offense occurs in or affects interstate or foreign commerce; or

(F) an offender aids or abets any person over whom jurisdiction exists under this paragraph in committing an offense under subsection (a) or con spires with any person over whom jurisdiction ex ists under this paragraph to commit an offense un der subsection (a).

(2) EXTRATERRITORIAL JURISDICTION.-There is extraterritorial Federal jurisdiction over an offense under this section.

* * * * *

(g) DEFINITIONS.-As used in this section-

(1) the term _classified information_ has the meaning given that term in section 1(a) of the Classi fied Information Procedures Act (18 U.S.C. App.);

(2) the term _financial institution_ has the same meaning as in section 5312(a)(2) of title 31, United States Code;

(3) the term _funds_ includes coin or currency of the United States or any other country, traveler's checks, personal checks, bank checks, money orders, stocks, bonds, debentures, drafts, letters of credit, any other negotiable instrument, and any electronic representation of any of the foregoing;

(4) the term _material support or resources_ has the same meaning given that term in section 2339A (including the definitions of _training_ and _expert advice or assistance_ in that section);

(5) the term _Secretary_ means the Secretary of the Treasury; and

(6) the term _terrorist organization_ means an organization designated as a terrorist organization under section 219 of the Immigration and Nationality Act.

(h) PROVISION OF PERSONNEL.-No person may be prosecuted under this section in connection with the term _personnel_ unless that person has knowingly pro vided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that ter rorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely inde pendently of the foreign terrorist organization to ad vance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control.

(i) RULE OF CONSTRUCTION.-Nothing in this sec tion shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amend ment to the Constitution of the United States.

(j) EXCEPTION.-No person may be prosecuted un der this section in connection with the term _personnel_, _training_, or _expert advice or assistance_ if the provi sion of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out ter rorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act).

 

1 Michael B. Mukasey is substituted for his predecessor, Alberto R. Gonzales, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).

2 Plaintiffs who support PKK want: (1) to train members of PKK on how to use humanitarian and international law to peacefully resolve dis putes, (2) to engage in political advocacy on behalf of Kurds who live in Turkey, and (3) to teach PKK members how to petition various repre sentative bodies such as the United Nations for relief.

Plaintiffs who support LTTE want: (1) to train members of LTTE to present claims for tsunami-related aid to mediators and international bodies, (2) to offer their legal expertise in negotiating peace agreements between the LTTE and the Sri Lankan government, and (3) to engage in political advocacy on behalf of Tamils who live in Sri Lanka.

3 This language essentially adopts our holding in HLP II, where we held that _to sustain a conviction under § 2339B, the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a foreign terrorist or ganization or that the donor had knowledge of the organization's unlaw ful activities that caused it to be so designated._ HLP II, 352 F.3d at 403.

4 Section 2339B(j) allows the Secretary of State to exempt from pro secution persons who may otherwise be held liable for providing _train ing,_ _expert advice or assistance,_ and _personnel._ 18 U.S.C. § 2339B( j).

5 The other two cases Plaintiffs rely on, Staples, 511 U.S. 600, 114 S. Ct. 1793, 128 L. Ed. 2d 608, and United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994), also involved statutes that did not contain an explicit mens rea requirement. In Stap les, the Supreme Court interpreted the statute punishing possession of an unregistered machine gun to require knowledge that the gun he or she possessed is unregistered. See Staples, 511 U.S. at 619, 114 S. Ct. 1793. Similarly, in X-Citement Video, the Court interpreted the term _knowingly_ to require that defendant knew that the persons appearing in a sexually explicit video were minors. See X-Citement Video, 513 U.S. at 78, 115 S. Ct. 464. However, as in Liparota, the Court required that, in the absence of a specific mens rea requirement, the government prove the defendant acted knowingly.

6 Although section 2339B(a) does not punish mere membership, the statute does prohibit the paying of membership dues. See HLP I, 205 F.3d at 1134 (rejecting Plaintiffs' argument that _the First Amendment requires the government to demonstrate a specific intent to aid an or ganization's illegal activities before attaching liability to the donation of funds[ ]_).

7 The issue of a facial vagueness challenge is not before this court. We therefore do not reach that issue.

8 In deciding previously raised challenges such as vagueness, we are bound by our decision in HLP I. See Murdoch v. Castro, 489 F.3d 1063, 1067 (9th Cir. 2007) (_ _[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.__).

9 Whether the outcome would be different if evidence were presented showing that _service_ rendered to a designated foreign terrorist or ganization resulted in the receipt of money by the designated foreign terrorist organization itself is not an issue presented by this case. We therefore do not reach that issue.

10 Defendants' opposition was originally due on June 10, 2005. Due to extenuating circumstances, the Court granted Defendants an extension of time to file their opposition on July 8, 2005.

11 Defendants' reliance on Hill v. Colorado, 530 U.S. 703, 733, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000) as support that courts may not con sider hypothetical situations in void for vagueness challenges is mis placed. In Hill, the Supreme Court declined to entertain hypotheticals after it had already found that the _the likelihood that anyone would not understand any of those common words [in the statute] seems quite remote._ Hill, 530 U.S. at 733, 120 S. Ct. 2480. In contrast, the statu tory language regarding the ban on _training,_ _expert advice or assis tance,_ _personnel,_ and _service_ is more ambiguous and complex.

12 The Court also rejects Defendants' argument regarding the confla tion of vagueness under the First and Fifth Amendments. Citing Par ker v. Levy, 417 U.S. 733, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974), Defen dants contend that a statute must be vague in all applications in order to be held unconstitutionally vague under the Fifth Amendment. Ac cording to Defendants, Plaintiffs conflate vagueness and overbreadth by asserting vagueness as applied to the hypothetical conduct of others instead of Plaintiffs' own intended activities. The Supreme Court rejec ted this argument in Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983). Specifically, the Supreme Court stated, _First, it neglects the fact that we permit a facial challenge if a law reaches _a substantial amount of constitutionally protected conduct._ Second, where a statute imposes criminal penalties, the standard of certainty is higher. This concern has, at times, led us to invalidate a criminal sta tute on its face even when it could conceivably have had some valid ap plication . . . _ Kolender, 461 U.S. at 358 n. 8, 103 S. Ct. 1855 (cita tions omitted). The Supreme Court noted that _we have traditionally viewed vagueness and overbreadth as logically related and similar doc trines._ Id. The Supreme Court further distinguished Parker as a case involving military regulation. See id. Accordingly, the Court rejects Defendants' argument that Plaintiffs' First Amendment concerns are limited to a First Amendment overbreadth attack and cannot be raised in the context of a Fifth Amendment vagueness challenge. As discussed below, Plaintiffs' Fifth Amendment vagueness challenge is intertwined with their First Amendment concerns. The legal standards applied to a vagueness challenge and an overbreadth challenge, however, differ. Accordingly, the Court addresses Plaintiffs' vagueness and overbreadth arguments separately below.

13 In addition to Scales, Plaintiffs also cite two Ninth Circuit cases from the same era regarding Communist Party membership: Hellman v. United States, 298 F.2d 810 (9th Cir. 1961) and Brown v. United States, 334 F.2d 488 (9th Cir. 1964). As with Scales, Hellman and Brown are distinguishable from the instant case because they involved imputed guilt based on Communist Party membership without further proof of active conduct or intent to overthrow the government.

14 Both the Ninth Circuit and this Court have rejected Plaintiffs' First Amendment associational challenges to the AEDPA's criminalization of material support to foreign terrorist organizations. See HLP I, 205 F.3d at 1134 (_We therefore do not agree . . . that the First Amend ment requires the government to demonstrate a specific intent to aid an organization's illegal activities before attaching liability to the dona tion of funds._); District Court-HLP I, 9 F. Supp. 2d at 1191 (_AEDPA does not criminalize mere association with designated terrorist organ izations by prohibiting the provision of material support regardless of the donor's intent. . . . _). As previously noted, Plaintiffs remain free to affiliate with and advocate on behalf of foreign terrorist organiza tions.

15 The AEDPA, as amended by the IRTPA, currently reads, _To vio late this paragraph, a person must have knowledge that the organiza tion is a designated terrorist organization, that the organization has en gaged or engages in terrorist activity, or that the organization has en gaged or engages in terrorism. . . . _ 18 U.S.C. § 2339B (internal cita tions omitted).

16 The Court notes, however, that the Supreme Court has specifically stated that even absurd consequences resulting from an elimination of mens rea would not _justify judicial disregard of a clear command to that effect from Congress, but they do admonish us to caution in assum ing that Congress, without clear expression, intends in any instance to do so._ Morissette v. United States, 342 U.S. 246, 256 n.14, 72 S. Ct. 240, 96 L. Ed. 288 (1952).

17 The Court notes that the Supreme Court did not impose a specific intent requirement in any of these cases. Instead, the Supreme Court construed a mens rea requiring that a defendant act with knowledge of the prohibited conduct. See Liparota, 471 U.S. 419, 105 S. Ct. 2084 (defendant must know that he or she acquired or possessed food stamps in an unauthorized manner), Staples, 511 U.S. 600, 114 S. Ct. 1793 (de fendant must know that he or she possessed an unregistered firearm), and X-Citement Video, 513 U.S. 64, 115 S. Ct. 464 (defendant must know that the performers in sexually explicit videos were minors).

18 As discussed below, Congress clarified in the IRTPA amendments that a donor must know that the recipient of the material support or re sources is a foreign terrorist organization or engages in terrorist activ ities.

19 The Court notes that 18 U.S.C. § 2339C also included a specific intent requirement.

20 It is noteworthy that _the AEDPA's predecessor, the Violent Crime Control and Law Enforcement act of 1994, specifically excepted from _material support,_ _humanitarian assistance to persons not directly involved_ in terrorist activities . . . . However, the government enacted the AEDPA and specifically deleted this exception permitting contributions for humanitarian assistance . . . . _ District Court-HLP I, 9 F. Supp. 2d at 1194 (citations omitted).

21 Plaintiffs argue that this finding is undercut by Congress's allow ance of unlimited donations of medicine and religious items. But as the Ninth Circuit explained in HLP I, Congress is entitled to select what types of assistance to allow and what types to prohibit. See HLP I, 205 F.3d at 1136 n.4.

22 In introducing the Senate Conference Report to the Senate, Sena tor Hatch stated: _This bill also includes provisions making it a crime to knowingly provide material support to the terrorist functions of for eign groups designated by a Presidential finding to be engaged in ter rorist activities._ 142 Cong. Rec. S3354 (April 16, 1996) (statement of Sen. Hatch).

23 Plaintiffs previously asserted that the AEDPA was unconstitutional under the First Amendment because it prohibits donating material sup port even if the donor does not have the specific intent to aid in the re cipient organization's unlawful activities. In rejecting Plaintiffs' specific intent argument under the First Amendment, the Ninth Circuit noted, _Material support given to a terrorist organization can be used to pro mote the organization's unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used._ HLP I, 205 F.3d at 1134. See also District Court-HLP I, 9 F. Supp. 2d at 1192.

24 This Court respectfully disagrees with the Middle District of Flor ida's decision in Al-Arian. In Al-Arian, the court engrafted a mens rea element into § 2339B, requiring that a donor of material support intend to further the terrorist activities of the foreign terrorist organization. The Middle District of Florida noted that courts should interpret sta tutes to avoid constitutional issues. The Court cited as examples the morally innocent cab driver or hotel clerk providing transportation or lodging, respectively, to a foreign terrorist organization member in New York City for a United Nations meeting. As discussed above, this Court finds that the legislative history of the statute and Congress's ac tions since the Al-Arian opinion reveal an unequivocal intent to exclude any mens rea requirement beyond the plain language of the statute, as amended by the IRTPA. Moreover, the circumstances of the hotel clerk and cab driver are not before this Court.

25 While the Court recognizes that courts often defer to the political branches in the foreign affairs context, the Court also notes that its de cision does not rest on that ground. Even in legislation affecting for eign affairs, the judiciary must, of course, balance constitutional rights with governmental interests. See Hamdi v. Rumsfeld, 542 U.S. 507, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004).

26 As already noted above, HLP II was vacated by the Ninth Circuit after Congress enacted the IRTPA.

27 Moreover, the Ninth Circuit read the statement by Senator Hatch upon which Plaintiffs rely as supportive of this level of mens rea. See HLP II, 352 F.3d at 402 (citing 142 Cong. Rec. S3354 (daily ed. April 16, 1996) (statement of Sen. Hatch)).

28 While Al-Arian interpreted § 2339B to have two elements of per sonal guilt, namely, knowledge of the recipient's status as a foreign ter rorist organization and intent to further the organization's terrorist activities, the Court notes that the statute can also be read as having a single element of personal guilt. For instance, in X-Citement Video, the Supreme Court held that _the age of the performers is the crucial ele ment separating legal innocence from wrongful conduct,_ as sexually explicit videos featuring adults would not be prohibited. X-Citement Video, 513 U.S. at 73, 115 S. Ct. 464. Here, the status of the recipient organization is the crucial element separating legal innocence from wrongful conduct, as the provision of material support to non-foreign terrorist organizations would not be prohibited by the AEDPA.

29 The 2004 IRTPA amendment also states that _[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment. . . . _ 18 U.S.C. § 2339B(i). Plaintiffs assert that such _boilerplate language_ is super fluous and fails to eliminate constitutional concerns. The Court agrees, and Defendants do not contest, that this provision is inadequate to cure potential vagueness issues because it does not clarify the prohibited conduct with sufficient definiteness for ordinary people.

30 As discussed above, Defendants' contention that Plaintiffs lack standing to attack the AEDPA for vagueness based on mere hypotheti cal situations ignores Plaintiffs' submitted evidence of their intended conduct. Plaintiffs do not seek injunctive relief as to hypothetical activ ities, but as to their own.

31 Defendants contend that the AEDPA prohibits Plaintiffs from pro viding _advice or training _on how to engage in human rights advocacy on their own behalf and on how to use international law to seek redress for human rights violations.__ Defendants' Opposition at 16. This posi tion is in direct contrast to the Ninth Circuit and this Court's holdings, which recognized that such activities are protected under the First Amendment rights to free speech and association. See HLP I, 205 F.3d at 1137-38; District Court-HLP I, 9 F. Supp. 2d at 1204; District Court- HLP II, 309 F. Supp. 2d at 1200-01.

32 Plaintiffs attack only the _specialized knowledge_ portion of the definition of _expert advice or assistance_ as vague. The Court's injunc tion of enforcement of this prohibition against Plaintiffs applies only to the _specialized knowledge_ portion of the definition, not the _scientific, technical . . . knowledge_ portion of the definition, which the Court finds is not vague.

33 Plaintiffs did not file an amended complaint challenging the ban on _service,_ which was recently enacted in December 2004. In any event, the parties briefed the issue fully. In the interest of judicial economy, the Court deems the complaint amended so that these issues may be re solved together.

34 Plaintiffs recognize that the Court has previously rejected their overbreadth argument in the past, but wish to preserve their right to appeal.

35 Having found that _personnel_ and the _scientific, technical . . . knowledge_ portion of the ban on _expert advice or assistance_ are not vague, the Court must address Plaintiffs' challenge to 18 U.S.C. § 2339B(j).

36 Furthermore, Defendants assert that Plaintiffs lack standing to bring this claim because they are not harmed by the exception set forth in 18 U.S.C. § 2339B(j). The Court agrees that Defendants have asser ted a sound argument regarding standing. Plaintiffs have failed to ar ticulate how they are injured by 18 U.S.C. § 2339B(j), as the prohibition on providing material support is set forth in another section of the AEDPA. Nevertheless, the Court addresses Plaintiffs' claim on the merits.

37 Moreover, the Court notes that even if the exception constituted a licensing scheme, there would be no unfettered discretion in its applica tion. On the contrary, the Secretary of State cannot approve material support without determining that it will not be used for terrorist activ ity. This Court previously rejected Plaintiffs' challenges to the Secre tary of State's discretion in designating foreign terrorist organizations, which requires a determination that an organization actually engages in terrorist activity. See District Court-HLP I, 9 F. Supp. 2d at 1199-1200; see also HLP I, 205 F.3d at 1137 (affirming this Court's de cision and noting that because _the regulation involves the conduct of foreign affairs, we owe the executive branch even more latitude than in the domestic context_).

38 This Court's injunction does not enjoin enforcement of the remain ing categories of material support or resources against Plaintiffs, name ly, _property, tangible or intangible_; _currency or monetary instru ments or financial securities_; _financial services_; _lodging_; _expert advice or assistance_ in the form of _scientific or technical . . . know ledge_; _safehouses_; _false documentation or identification_; _commu nications equipment_; _facilities_; _weapons_; _lethal substances_; _ex plosives_; _personnel (1 or more individuals who may be or include one self)_; and _transportation._