Material-support-to-terrorism prosecutions: fighting terrorism by eroding judicial review.

• Author: Tunis, Brent

INTRODUCTION

In April 1996, Congress passed and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (1) Section 303 of the Act, which became 18 U.S.C. [section] 2339B, made it a federal crime to "knowingly provide[] material support or resources to a foreign terrorist organization," (2) and section 219, later 8 U.S.C. [section] 1189, empowered the Secretary of State to designate groups as "foreign terrorist organizations" (3) ("FTOs"). Prior to 9/11 [section] 2339B was only invoked three times for criminal prosecutions. (4) However, since 9/11 it has become the most commonly used statute by the government in conducting terrorism-related prosecutions. (5)

In our post-9/11 world, the ban on material support to terrorism is a popular tool in protecting the United States' national security because it is "a preventive measure--it criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur." (6) It prevents such aid to terrorist organizations by broadly defining "material support or resources" as "any property, tangible or intangible, or service," and stipulating that anyone who knowingly provides such support can be imprisoned for up to fifteen years. (7) There is no doubt that many FTOs have been weakened through the loss of valuable aid and funding for their illegal activities because of this law. (8)

Unfortunately, along with this effort to bolster national security has come an erosion of meaningful judicial review of material-support-to-terrorism charges. Congress passed (and later amended) [section] 1189 and [section] 2339B with numerous provisions limiting the ability of the courts to review (1) the designation of a group as an FTO, (9) and (2) whether a defendant's material support has or would likely further any terrorist activities. (10) In addition, the courts have readily accepted this lessened judicial review, even at the cost of diminishing defendants' rights under the First and Fifth Amendments. (11) Recently, in Holder v. Humanitarian Law Project ("HLP VI"), the Supreme Court further limited the scope of judicial review under [section] 2339B by broadly deferring to the judgment of the legislative branch. (12)

This jurisprudence amounts to statutes created by Congress and interpreted by the courts that are almost non-reviewable and extremely likely to result in a conviction. (13) As the law now stands, a defendant charged with violating [section] 2339B may not defend himself by: (1) challenging the designation of a group as an FTO, (14) (2) challenging the constitutionality of the FTO designation process, (15) (3) arguing that he did not intend or know that his actions would support illegal terrorist activities, (16) or (4) arguing that his actions did not or will not support any illegal terrorist activities. (17) Going forward, there is the perverse possibility that individuals will be charged with materially supporting terrorism even if their actions could in no way reasonably support terrorist activity or threaten national security. (18) Hence, Congress should reform both [section] 1189 and [section] 2339B to expand the scope of judicial review and allow defendants to present a defense to an FTO designation or a charge that they materially supported that FTO. (19) Although doing so may make material-support prosecutions less of a "sure thing" for the government, it will prevent the erosion of our First Amendment rights and ensure that those convicted of providing material support actually threatened national security. (20)

Part I analyzes the FTO designation process of [section] 1189, beginning with the high level of deference accorded to the Secretary of State and how this presents due process concerns under the Fifth Amendment. Part II examines Congress's expansion of the activities that [section] 2339B prohibits under the definition of "material support," as well as the decreased ability for the courts to review such a charge. (21) Part III evaluates HLP VI's expansive holding and deference to Congress. (22) This Part also explains how the Court ignored the plaintiffs' First Amendment rights by denying their freedom to associate and limiting their ability to organize a proper defense. (23) Part IV analyzes Justice Breyer's solution to avoid such constitutional infringement and lack of judicial review, (24) and suggests a revised standard for [section] 2339B that only bans the defendant's material support if it presents a clear and present danger of furthering terrorist activities. (25) Such a standard would expand judicial review, allow defendants to argue that their support will only contribute to lawful activities, and remove constitutional concerns while still respecting the government's substantial interest in national security. (26) If a specific form of material support is found to threaten national security, then it should be prohibited. But where it poses no realistic threat, the courts should respect a defendant's freedom to associate and not look to find him guilty as soon as he steps foot in the courtroom.

1. THE FTO DESIGNATION PROCESS

   The designation of a group as an FTO plays an important and necessary role in the subsequent prosecution of an individual for materially supporting terrorism. Section A of this Part examines the lack of oversight and strong deference given to the Secretary of State in deciding who will be designated as an FTO. Although an FTO can seek judicial review of its designation, Section B discusses how such review is extremely limited because an organization is given little time to challenge its designation and is foreclosed from presenting any evidence on its behalf. Section C analyzes the lack of due process provided to a group that is designated as an FTO under [section] 1189 and the unwillingness of the D.C. Circuit to strike down this law or vacate decisions arising from it.

   1. Strong Deference to the Secretary of State

      An FTO designation under [section] 1189 (27) has severe implications for the organization labeled as such, as well as for anyone who provides material support to that organization. (28) For the organization, it will likely see its assets in the United States frozen, (29) and may also suffer irreparable harm to its reputation. (30) For the individual who provides material support, he may face imprisonment for up to fifteen years, and, if not a U.S. citizen, he may be deported and have restrictions placed on his freedom to travel. (31) Moreover, the individual charged with material support "may not defend himself.., by arguing that the organization he allegedly supported was improperly designated an FTO." (32) Thus, this designation process plays a significant role in the eventual prosecution of a defendant for material support to terrorism. (33) Unfortunately, FTO designations under [section] 1189 suffer from a similar lack of judicial review that plagues the [section] 2339B prosecutions following them. (34)

      The Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, is authorized to designate a group as an FTO if the Secretary finds that the group is (A) a foreign organization (B) engaged in terrorist activity (or with the capability and intent to engage in terrorist activity or terrorism) (C) that threatens the security of the United States or its citizens. (35) After finding all three elements, the Secretary must then notify select congressional leaders in writing of her intent to designate the organization. (36) If Congress disagrees with the designation, it may revoke or block the designation by an Act of Congress. (37) However, because such notice must be given a mere seven days prior to the actual designation, it is unlikely that the initial designation will be prevented. (38) More significantly, "[a]t no time during the designation process is the Secretary required to notify the organization that it is being considered for designation as an FTO." (39) The organization is only made aware of its designation after the designation has been published in the Federal Register and, thus, already gone into effect. (40) Accordingly, the organization is given no opportunity to respond or challenge the allegations that it is an FTO prior to its designation. (41) This led the court in National Council of Resistance of Iran v. Department of State ("NCRI") to exclaim, "[t]he unique feature of this statutory procedure is the dearth of procedural participation and protection afforded the designated entity. At no point ... is the alleged [FTO] afforded notice of the materials used against it, or a right to comment on such materials...." (42)

      Indeed, throughout the process the Secretary relies solely on the administrative record she creates, along with any classified information that she receives, in making her decision. (43) Not only does the FTO have no real ability to challenge her findings, but there is also no meaningful check on the Secretary's judgment from any other source prior to the designation. (44) Although the Secretary is required to "consult" with the Attorney General and the Secretary of Treasury, "[t]hey are all dependent agencies of the Executive branch susceptible to internal pressures and have no incentive for challenging each other's discretionary powers." (45) The Secretary is given almost complete discretion and deference in making the designation. (46) Consequently, it is especially important that an FTO is able to seek effective judicial review to challenge its designation. (47)

   2. Extremely Limited Judicial Review

      Although an FTO may seek judicial review of its designation in the D.C. Circuit, (48) such review is so limited that it risks being "a meaningless formality, rather than a real opportunity to challenge the liberty or property deprivation." (49) Under the statute, judicial review will only be granted if it is sought no later than thirty days after the designation is...