News

Federal Court Strikes Down Part of the "USA PATRIOT Act"

(January 27, 2004) - A federal district court in California has struck down a portion of the "USA PATRIOT Act" that makes it a crime to provide "expert advice or assistance" to organizations that the Secretary of State has designated as "terrorist." Judge Audrey Collins ruled that the term "expert advice or assistance" is so vague that it could easily include "unequivocally pure speech and advocacy protected by the First Amendment."1

The plaintiffs in the case, Humanitarian Law Project v. Ashcroft, include organizations and individuals who have in the past given the Kurdistan Workers' Party and the Liberation Tigers of Tamil (the "Tamil Tigers") medical and humanitarian aid, including help in petitioning Congress to support Kurdish human rights and to encourage negotiations with the Turkish government. The Secretary of State has listed both the Kurdistan Workers' Party and the Tamil Tigers as "foreign terrorist organizations," in a procedure that gave no advance notice, and very limited ability to contest the designation.2

The "expert advice or assistance" provision of the PATRIOT Act was actually an addition to a 1996 law, the "Antiterrorism and Effective Death Penalty Act," or "AEDPA." AEDPA established an adminstrative procedure for designating terrorist organizations, and stiff penalties for providing them with "material support." It included "training" and "personnel" within the definition of "material support," but both of those provisions were held to be unconstitutionally vague and overbroad in an earlier stage of the Humanitarian Law Project case.3

In that same case, though, the courts found that the abbreviated and largely secret procedure for designating terrorist organizations does not deprive either the organizations or those who might want to assist them of due process. The term "terrorist activity," as used in the law, includes, among other things, any unlawful use of, or threat to use, a weapon "(other than for mere personal monetary gain) with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property."4

The most recent decision in this ongoing case is a good reminder of the importance of the courts in setting some limits on government action at a time when the public's justified fear of terrorism has been used to compromise civil liberties in ways that often do not really improve our security or safety. Human rights advocacy and other "expert advice or assistance" on behalf of organizations that may be involved in violent struggles abroad can often ameliorate, rather than exacerbate, the global problems that lead to terrorism.

See The Impact of the USA PATRIOT Act: An Update, for more on the free-speech implications of "anti-terrorism" law.

NOTES

1. Humanitarian Law Project v. Ashcroft, No. CV 03-6107 (C.D. Cal. Jan. 22, 2004), slip opinion at 29, http://news.findlaw.com/hdocs/docs/terrorism/hlpash12304ord.pdf

2. The procedure is set out in sections 302 and 303 of the "Antiterrorism and Effective Death Penalty Act," 8 U.S. Code §§1189, 2339B. It was upheld in Humanitarian Law Project v. Reno, 9 F. Supp.2d 1176 (C.D. Cal. 1998), affirmed, 205 F.3d 1130 (9th Cir. 2000).

3. Humanitarian Law Project v. Reno, 9 F. Supp.2d 1176 (C.D. Cal. 1998), affirmed, 205 F.3d 1130 (9th Cir. 2000).

4. 8 U.S. Code §1182(a)(3)(B)(iii)(V).