US Tamils launch Constitutional challenge to Patriot Act

Professor David Cole CCR's Carol Sobel and Paul Hoffman are other attorneys representing the plaintiffs in this case labelled Humanitarian Law Project II et.al v. Ashcroft. et.al. Plaintiffs in this class action challenge also include Humanitarian Law Project and its president, Ralph Fertig, who wishes to advocate for the Kurdistan Workers Party (PKK) before international forums.

The plaintiffs raise a First Amendment challenge to a USA Patriot Act provision that broadens the already broad reach of the material support law, which was introduced in the Anti-Terrorism and Effective Death Penalty Act of 1996.

That law made it a crime to provide material support to any organization designated by the Secretary of State as a foreign terrorist organization, including support directed solely to the organization's lawful and peaceful ends. Section 805(a)(2)(B) of the USA Patriot Act amended the definition of material support to include "expert advice and assistance."

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United States & the Tamil Struggle

US Tamils launch Constitutional challenge to US Patriot Act
[Courtesy: TamilNet, 5 October 2003]

Professor David Cole of Georgetown University and Nancy Chang,Senior attorney at Center for Constitutional Rights, New York, will lead the legal challenge against the provision of the USA Patriot Act that criminalizes the provision of “expert advice and assistance” to proscribed organizations. Plaintiffs in this case filed by CCR include four US Tamil organizations and a Tamil-American physician, according to CCR attorneys.

David Cole, Georgetown University

Nancy Chang, CCR

Nancy Chang, Chris Dunn, an attorney at the New York Civil Liberties Union

The Tamil plaintiffs wish to lend their expertise in the fields of law, medicine, information technology, economics, and the cultural arts to support the humanitarian and political activities of the Liberation Tigers of Tamil Eelam (LTTE).

Plaintiff Dr. Nagalingam Jeyalingam, a Tamil-American physician, would like to provide his expert medical advice on how to improve the delivery of health care in war-ravaged areas of Sri Lanka that are under the control of the LTTE and to offer his services as a trained otolaryngologist to a local hospital.

Although the plaintiffs believe that providing expert advice and assistance towards such peace-oriented goals is protected under the First Amendment, they are afraid to do so out of fear of being prosecuted and convicted under the material support law.

“In its rush to pass the Patriot Act just six weeks after the September 11 attacks, Congress overlooked one of our most fundamental rights – the right to express our political beliefs, especially those that are controversial,” said CCR Senior Attorney Nancy Chang. “Now it is up to the judiciary to correct Congress’s excesses.”

The plaintiffs plan to file a summary judgment motion later this month that will seek a declaration that the term "expert advice and assistance," introduced by the USA Patriot Act, should be struck from the law because it is unconstitutionally vague and overbroad, Senior Attorney Chang said.

In a previous suit brought in March 1998 by the CCR on behalf of the same plaintiffs, the plaintiffs asked the court to declare that the material support statute, 18 U.S.C. § 2339B, violates the First Amendment insofar as it criminalizes the provision of such support.

Judge Audrey Collins rejected plaintiffs' argument that the ban on material support violates the First Amendment insofar as it criminalizes the provision of cash and humanitarian aid that is solely intended to further the lawful purposes of a designated organization. However, the Judge agreed with plaintiffs that the law is unconstitutionally vague to the extent that it criminalizes the provision of material support in the form of "personnel" and "training."

She found that these provisions "d[id] not . . . appear to allow persons of ordinary intelligence to determine what type of training or provision of personnel is prohibited" and, furthermore, "appeared to prohibit activity protected by the First Amendment -- distributing literature and information and training others to engage in advocacy."

She then issued a narrowly tailored preliminary injunction barring the government from prosecuting any of the plaintiffs in the suit or any members of the organizational plaintiffs for providing "personnel" or "training" to the LTTE.

Judge Collins' preliminary injunction was appealed to the Ninth Circuit, which affirmed it in March 2000. Her summary judgment order is now under review by the Ninth Circuit, which heard oral argument on March 5, 2003.

Professor David D. Cole is a full-time faculty member at Georgetown University Law Center. After graduating from Yale Law School, Professor Cole served as a law clerk to the Honorable Judge Arlin M. Adams of the United States Court of Appeals for the Third Circuit. Following his clerkship, he became a staff attorney for the Center for Constitutional Rights where he litigated numerous First Amendment cases, including United States v. Eichman, 496 U.S. 928 (1990), which protected flag burning under the First Amendment. He continues to litigate First Amendment and other constitutional issues as a volunteer attorney at the Center.

Nancy Chang is the Senior Litigation Attorney at the Center for Constitutional Rights in New York City. She graduated from Stanford University and completed law degree at New York University. Ms.Chang's work at CCR has focused on protecting the First Amendment rights of political activists against government efforts to silence dissent, safeguarding civil liberties against measures taken in the name of national security, protecting the constitutional rights of immigrants, and combating racial profiling.