U.S. Supreme Court Decision on
Anti-Terrorism Law and Tamil Activism in the US

Note by V.Rudrakumaran, 10 March 2001

�The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. Plaintiffs are even free to praise the groups for using terrorism as a means of achieving their ends.� - Judge Kozinski, California Ninth Circuit Court of Appeals

On 5th March 2001, the US Supreme Court declined to hear appeals, both by the US Government and the plaintiffs, on a case involving the US Anti-Terrorism Law. William K. Suter, the Clerk to the Supreme Court of the United States, in a short letter to the attorneys said, �The petition for writ of certiorari is denied.� Thus, the ruling of the California Ninth Circuit Court of Appeals [3 March 2000] on this matter was upheld.

Two American citizens and six US organizations filed a lawsuit in 1998 (Humanitarian Law Project v Reno), seeking a preliminary injunction on the enforcement of the Anti Terrorism and Effective Death Penalty Act (AEDPA) against them. The plaintiffs wished to provide material support for the humanitarian activities of the PKK and the LTTE, two of the organizations proscribed by the Secretary of State under this Act.

The District Court denied the injunction on the grounds that such material support could be diverted to terrorist activities. However, the court agreed with the plaintiffs that the terms �training� and �personnel� were �impermissibly vague,� and prohibited the enforcement of AEDPA on these two matters.

Both parties appealed to the 9th Circuit Court of California, which on 3rd March 2000 upheld the lower court decision. The Circuit Court Judge, in affirming the lower court decision, made certain statements that are highly pertinent to the performance of Tamil activists in the US. The Circuit Judge Kozinski, said,

�The statute does not prohibit being a member of one of the designated groups or vigorously promoting and supporting the political goals of the group. Plaintiffs are even free to praise the groups for using terrorism as a means of achieving their ends. What AEDPA prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives...�

�Plaintiffs here do not contend they are prohibited from advocating the goals of the foreign terrorist organizations, espousing their views or even being members of such groups. They can do so without fear of penalty...�

In striking down the prohibition on supplying �personnel� and �training�, the judge ruled against the US Attorney General, and sided with the plaintiffs (the two citizens and the six organizations). In this regard the judge said,

�It is easy to see how someone could be unsure about what AEDPA prohibits with the use of the term �personnel,� as it blurs the line between protected expression and unprotected conduct. Someone who advocates the cause of the PKK could be seen as supplying them with personnel; it even fits under the government�s rubric of freeing up resources, since having an independent advocate frees up members to engage in terrorist activities instead of advocacy. But advocacy is pure speech protected by the First Amendment.

The term �training� fares little better. 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 designated 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 encompass teaching international law to members of designated organizations. The result would be different if the term �training� were qualified to include only military training, or training in terrorist activities.

Because plaintiffs have demonstrated that they are likely to succeed on the merits of their claim with respect to the terms �training� and �personnel,� we conclude that the district court did not abuse its discretion in issuing its limited preliminary injunction.�

V. Rudrakumaran Esq., one of the attorneys who represented Tamils in this legal action, clarified and summarized the end result of this legal proceedings as follows:

Permissible Activities:

Political campaigns on behalf of or under the direction of the LTTE or independent of the LTTE, in furtherance of LTTE�s political program are permitted. Public support for the LTTE�s armed struggle is also permitted.
U.S. citizens and permanent residents can function as LTTE representatives.
LTTE members are eligible for asylum, provided they were not involved in terrorist activities.

Prohibited Activities:

Giving money to the LTTE is prohibited. [Contributions to humanitarian organizations, such as the TRO is allowed. Providing Medical supplies and religious material to the LTTE are also allowable].

Members or Representatives of the LTTE can be denied visitors� visa to enter the U.S.

Judgment of the 9th Circuit Court of Appeals � Full Text