Terrorism: United States Law & Practise
U.S Court declares Patriot Act Provision Unconstitutional
TamilNet, January 27, 2004
Text of Court
Ruling on Patriot Act in PDF, 22 January 2004
Citing Free Speech, Judge Voids Part of Anti-Terror Act
In a landmark decision declaring Patriot Act's
addition of "expert advice and assistance" to the definition of
material support is unconstitutionally vague, Judge Audrey Collins
in Los Angeles enjoined the U.S.Government from enforcing the USA
PATRIOT Act's prohibition on providing 'expert advice or assistance'
to foreign terrorist organizations against the plaintiffs Ralph
Fertig, Dr. Jeyalingam, the Humanitarian Law Project, the Ilankai
Thamil Sangam and its members, and the Tamil Welfare and Human
Rights Committee and its members.
"It is the first time that a court has struck down a portion of the
controversial law approved by Congress six weeks after the September
11, 2001 attacks," Washington Post said. The court, however,
declined to grant a nationwide injunction.
"Judge Collins said the section of the USA Patriot Act is so broad
that it "could be construed to include unequivocally pure speech and
advocacy protected by the First Amendment," and that it "places no
limitations on the type of expert advice and assistance which is
prohibited," Washington Post said.
Professor David Cole who argued the case said the decision "calls
into question the government's reliance on overbroad laws imposing
guilt by association in the war on terrorism."
"Our clients sought only to support lawful and nonviolent activity,
yet the Patriot Act provision draws no distinction whatsoever
between expert advice in human rights, designed to deter violence,
and expert advice on how to build a bomb," Cole is quoted as saying
in the Washington Post.
"The critical thing here is that this is the first demonstration
that courts will not allow Congress in the name of fighting
terrorism to ignore our constitutional rights," New York times
reported quoting Nancy Chang, a senior lawyer with the Center for
Constitutional Rights, the New York-based organization that brought
the lawsuit against the Justice Department on behalf of the
humanitarian groups. "By using a broad and vague definition of
terrorism, that has a chilling effect on free speech."
Mark Carallo, a spokesman for the Justice Department, said the
provision of the Patriot Act "made clear that Americans are
threatened as much by the person who teaches a terrorist build a
bomb as by the one who pushes the button. The provision was an
elaboration on an earlier law, enacted in 1996, that bans giving
material support to terrorists. The USA Patriot Act's addition of
words barring 'expert advice or assistance' was only a 'modest,
incremental' change to the earlier law," the Washington post
reported.
Professor David Cole of Georgetown University and Nancy Chang,
Senior attorney at Center for Constitutional Rights, New York, lead
the legal challenge. Tamil plaintiffs wished 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).
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.
The Patriot Act 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."
Ninth Circuit's December 3, 2003 ruling in HLP I, which affirms
Judge Collins' earlier ruling that the terms "training" and
"personnel" in the 1996 definition of material support are
unconstitutionally vague. The Ninth Circuit also held that an
individual can be found guilty of the crime of material support only
if he actually knows that he is giving material support to a
designated foreign terrorist organization or a group involved in
criminal activity. Both sides have requested the Ninth Circuit for
rehearing en banc.
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Citing Free Speech, Judge Voids Part of Anti-Terror Act
Eric Lichtblau in
New York Times, 27 January 2004
WASHINGTON, Jan. 26 � For the first time, a federal judge
has struck down part of the sweeping antiterrorism law known as the USA
Patriot Act, joining other courts that have challenged integral parts of the
Bush administration's campaign against terrorism.
In Los Angeles,
the judge, Audrey B. Collins of Federal District Court, United States
District Court said in a decision made public on Monday that a provision in
the law banning certain types of support for terrorist groups was so vague
that it risked running afoul of the First Amendment.
Civil liberties
advocates hailed the decision as an important victory in efforts to rein in
what they regard as legal abuses in the government's antiterrorism
initiatives. The Justice Department defended the law as a crucial tool in
the fight against terrorists and promised to review the Los Angeles ruling.
At issue was a provision in the act, passed by Congress after the attacks of
Sept. 11, 2001, that expanded previous antiterrorism law to prohibit anyone
from providing "expert advice or assistance" to known terrorist groups. The
measure was part of a broader set of prohibitions that the administration
has relied heavily on in prosecuting people in Lackawanna, N.Y., Portland,
Ore., Detroit and elsewhere accused of providing money, training, Internet
services and other "material support" to terrorist groups.
In Los
Angeles, several humanitarian groups that work with Kurdish refugees in
Turkey and Tamil residents of Sri Lanka had sued the government, arguing in
a lawsuit that the antiterrorism act was so ill defined that they had
stopped writing political material and helping organize peace conferences
for fear that they would be prosecuted.
Judge Collins agreed that
the ban on providing advice and assistance to terrorists was "impermissibly
vague" and blocked the Justice Department from enforcing it against the
plaintiffs.
"The USA Patriot Act places no limitation on the type of
expert advice and assistance which is prohibited, and instead bans the
provision of all expert advice and assistance regardless of its nature,"
Judge Collins wrote in a ruling issued late Friday.
As a result, the
law could be construed to include "unequivocally pure speech and advocacy
protected by the First Amendment," wrote the judge, who was appointed to the
bench by President Bill Clinton.
At the same time, however, Judge
Collins sided with the government in rejecting some of the plaintiffs'
arguments, and she declined to grant a nationwide injunction against the
Justice Department.
Even so, lawyers for the humanitarian groups
said they were heartened by the ruling. It came seven weeks after many of
the same plaintiffs won a ruling in a separate but related case before a
federal appeals court in San Francisco. That court, the United States Court
of Appeals for the Ninth Circuit, found that a 1996 antiterrorism law
prohibiting anyone from providing training or personnel for terrorist groups
was too vague to pass constitutional muster. In recent months, other courts
have also challenged the administration's designation of enemy combatants
and other aspects of the campaign against terrorism, but the Los Angeles
decision was the first by a federal judge to strike down any portion of the
Patriot Act.
"The critical thing here is that this is the first
demonstration that courts will not allow Congress in the name of fighting
terrorism to ignore our constitutional rights," said Nancy Chang, a senior
lawyer with the Center for Constitutional Rights, the New York-based
organization that brought the lawsuit against the Justice Department on
behalf of the humanitarian groups. "By using a broad and vague definition of
terrorism, that has a chilling effect on free speech."
The Justice
Department, which already sought a review of the related decision in San
Francisco, also plans to review Judge Collins's ruling to decide whether it
should be appealed, officials said.
Administration officials have
made clear that they consider the Patriot Act to be an integral part of
their efforts to identify, track and disrupt terrorist activities.
Indeed, President Bush in his State of the Union message last week urged
Congress to renew parts of the act that are scheduled to expire in 2005. But
the administration may face a tough sell in Congress, with a growing number
of lawmakers from both parties questioning whether the government's expanded
powers in dozens of areas of law enforcement have infringed on civil
liberties. In largely symbolic votes, more than 230 communities nationwide
have raised formal objections to the law.
Mark Corallo, a spokesman
for the Justice Department, said in a statement on Monday that the language
banning expert advice or assistance to terrorists represented only "a modest
enhancement" of previous law.
"By targeting those who provide
material support by providing expert advice or assistance," Mr. Corallo
said, "the law made clear that Americans are threatened as much by the
person who teaches a terrorist to build a bomb as by the one who pushes the
button."
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