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The famed jurist Learned Hand once said that the crime of conspiracy was “[the] darling of the modern prosecutor’s nursery.” Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925). While conspiracy charges are still effective charges for prosecutors, the “war on terrorism” has given prosecutors another favored weapon for their arsenal. That weapon is 18 U.S.C. 2339B, the workhorse statute for terrorism prosecutions. Designation is subject to limited court review Enacted in 1996 as part of the Antiterrorism and Effective Death Penalty Act, Section 2339B prohibits knowingly providing material support or resources to a foreign terrorist organization. In addition to civil penalties and the possibility of injunctions, the criminal penalty for violating this statute ranges from a maximum of 15 years in jail to life imprisonment, if the death of any person results. The designation of an organization as a “foreign terrorist organization” is delegated to the secretary of state and is subject to extremely limited review by the courts. See National Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001). Parties challenging that designation have minimal input and generally must wait until after the designation process is completed. Moreover, such a challenge must generally be done in designated administrative processes and not as a defense in a criminal proceeding. 8 U.S.C. 1189(a)(8); U.S. v. Sattar, 272 F. Supp. 2d 348, 367 (S.D.N.Y. 2003). But see U.S. v. Rahmani, 209 F. Supp. 2d 1045 (C.D. Calif. 2002) (indictment dismissed because designation procedure is unconstitutional on its face). Section 2339B prohibits a wide range of activities that are deemed “material support or resources.” These include “currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” 18 U.S.C. 2339A(b). Currently, dozens of defendants are being prosecuted under this statute. Since the Sept. 11, 2001, attack on the World Trade Center, Section 2339B has been used to prosecute some of the highest profile defendants, including John Walker Lindh, Zacarias Moussaoui and the Lackawanna Six. For the most part, prosecutors believe this statute is broad enough to prohibit almost any assistance, direct or indirect, that a person might provide to al-Queda and other terrorist groups. However, it has not been completely smooth sailing for the government in prosecutions under Section 2339B. Defendants have vigorously challenged the statute’s scope, claiming it is unconstitutionally vague and overbroad. Despite the seriousness with which everyone takes the war on terrorism, some courts have been receptive to these challenges. Prosecutors must be concerned about the ever-shrinking scope of their new favorite statute. For example, there have been several challenges to the language in Section 2339B prohibiting providing “personnel” to a foreign terrorist organization. In U.S. v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002), prosecutors alleged that Lindh had violated these provisions by attending al-Queda training camps and participating in Taliban operations. Lindh challenged this use of Section 2339B. He argued that providing “personnel” must mean more than just being physically present among members of a designated organization. Given its ordinary meaning, the term seems to imply that a defendant provides material support when he recruits others to participate with the designated group. Lindh argued that the government’s broad interpretation of the law ran afoul of protected rights of association. While the court in the Lindh case rejected this argument, a court on the opposite side of the country accepted it. In Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133-34 (9th Cir. 2000), cert. denied, 532 U.S. 904 (2001) ( Humanitarian Law Project II), the 9th U.S. Circuit Court of Appeals upheld an injunction barring enforcement of two terms of Section 2339B. The appeals court held that the district court could enjoin the enforcement of Section 2339B’s provisions prohibiting “personnel” and “training” because they are impermissibly overbroad, and therefore void for vagueness under the First and Fifth amendments. Recently, the same court reaffirmed its decision in Humanitarian Law Project v. Ashcroft, 352 F.3d 382 (9th Cir. 2003) ( Humanitarian Law Project III). It rejected the government’s argument that the definition of the terms “personnel” and “training” in the United States Attorney’s Manual provided citizens with reasonable notice of what is prohibited by the statute. Finding that the manual is not accessible to the public, and that it states on its face that it is not enforceable by any party, the court held that the “personnel” and “training” provisions should not be enforced. Humanitarian Law Project III, 352 F.3d at 401. Moreover, just last month, in Humanitarian Law Project v. Ashcroft, 2004 U.S. Dist. Lexis 926 (C.D. Calif. Jan. 22, 2004), U.S. District Judge Audrey B. Collins enjoined the government from using several provisions of Section 2339B to prosecute members of the project for providing material support to terrorists. In addition to agreeing that the portions of the statute prohibiting the provision of “training” and “personnel” are void for vagueness, Collins also barred the government from enforcing the act’s prohibition upon giving “expert advice or assistance.” It was easier for the court to make this ruling than it might have been for the judge in the Lindh case. Collins was not presented with the situation in Lindh where a U.S. citizen, captured on the battlefield while serving as an enemy soldier, sought to dismiss criminal charges against him when he was returned and prosecuted under American law. Rather, she had before her a human rights advocacy group that was worried that it, too, could be prosecuted because it provided advocacy and support for groups seeking liberation, such as the Kurds and the Tamil. While each of the groups supported by the advocacy group allegedly has branches involved in terrorist activities, they also have political and social-service branches. Thus, Collins had to anticipate how the law proscribing “material support,” might chill legitimate public advocacy and association, including efforts by the Humanitarian Law Project to educate the United Nations and the U.S. Congress about the plight of these people. Given the situation before her, Collins was willing to chip away further at the effectiveness of Section 2339B by barring prosecutions against the Humanitarian Law Project for providing “expert advice or assistance” to a foreign terrorist organization. While there could be situations where the application of that law would be constitutional, it could not be in the case of a human rights advocacy group. The 9th Circuit is not the only court to express concern with the scope of Section 2339B. In U.S. v. Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003), the court dismissed two counts of charges under the statute as void for vagueness. In Sattar, the government sought to prosecute attorney Lynne Stewart and others for allegedly providing material support to a foreign terrorist organization, namely “personnel, communications equipment, currency, financial securities and transportation.” The government alleged that the defendants violated the statute by providing a communications pipeline that allowed Sheikh Abdel Rahman, who is imprisoned for the first World Trade Center bombing case, to communicate with his followers around the world. U.S. District Judge John G. Koeltl agreed with the defendants that merely talking on the telephone does not constitute providing “communications equipment,” as barred by Section 2339B. Using the statute in this manner “provides neither notice nor standards for its application.” Id. at 358. Moreover, Koeltl agreed with the defense that, as applied, the statute was unconstitutionally vague in charging the defendants with providing “personnel” to a foreign terrorist organization. Despite the government’s best effort to define “employees of a terrorist organization” to include the defendants, Koeltl dismissed those provisions of the indictment. Courts have tried to reinin use of Section 2339B Finally, courts have tried to rein in the government’s use of Section 2339B by interpreting the statute to require that the government prove beyond a reasonable doubt that the accused knew that the organization he or she assisted was designated as a foreign terrorist organization or that the accused knew of the organization’s unlawful activities that caused it to be so designated. In Humanitarian Law Project v. Ashcroft, 352 F.3d 382 (9th Cir. 2003), the 9th Circuit engrafted this mens rea requirement onto the statute to save it from being struck down as violating due process. Thus, the nature of activities that constitute material support under Section 2339B is not the only limiting factor for prosecution. In any prosecution for a violation of this statute, the government has an increased burden of proving that at the time the assistance was provided, the defendants were aware of the terrorist activities or nature of the organization. Despite all of the limitations recently imposed by the courts on the government’s use of Section 2339B, it is still unlikely that defendants who actually join with terrorists will walk free. So far, the courts have only tempered the Justice Department’s aggressive use of the statute against those who indirectly support such organizations. Ultimately, the Supreme Court may have to resolve what specific acts of support can be criminally prosecuted. In the meantime, the new statutory darling of prosecutors appears to be undergoing a judicial makeover. Laurie L. Levenson is a professor of law, William M. Rains Fellow and director of the Center for Ethical Advocacy at Loyola Law School, Los Angeles.

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