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San Francisco-Six judges on two federal appellate courts have expressed concern in two separate cases that the government’s broad power to label people and groups as terrorist will sweep in too many innocent people who pose no national threat. Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals issued a stinging critique of a federal law last week that allows designation of groups as foreign terrorist organizations, but prevents anyone criminally charged with providing financial support to them to challenge the terror designation. It flies in the face of “free and open expression and that of justice and fair play,” wrote Kozinski, in dissenting from denial of en banc reconsideration in U.S. v. Afshari, No. 02-50355. Four judges joined in his dissent, but the court requires 13 votes to reconsider an earlier opinion. “I think these are signs of a broader problem,” said David Cole, a Georgetown University Law Center professor and a lawyer in a third case challenging the criminalizing of humanitarian support to a Kurdish group labeled as terrorist. The laws criminalizing material support “were drafted so expansively they sweep in people not culpable in any moral sense,” he said. ‘Shame on us’ In the 3d Circuit, Judge Maryanne Trump Barry said if the phrase “Give me your huddled masses yearning to breathe free” has become an empty entreaty, then “shame on us.” Barry said that the congressional definition of terrorist activity “sweeps in not only the big guy, but also the little guy who poses no risk to anyone.” Barry objected to denial of asylum for Malachy McAllister, who completed a seven-year prison term for his role as a lookout 25 years ago for the Irish National Liberation Army in an attempted shooting of a Royal Ulster Constabulary officer in Northern Ireland. After his release, McAllister’s wife and three children were shot at in their home. The family fled to New Jersey seeking asylum but has been denied, based on the 1985 “terrorist activity.” “No one now suggests that Malachy poses a threat to anyone, much less to our national security, but this is a fact that Congress does not permit us to consider,” Barry wrote in McAllister v. Attorney General, No. 03-4513. In the 9th Circuit case, seven Iranians were indicted in 2001 for funneling funds to a dissident group opposed to the current fundamentalist regime in Iran. The government has accused the group, Mujahedin-e Khalq (MEK), of anti-Iran terrorism beginning in 1997. The law barring material support to groups designated foreign terrorist organizations does not allow defendants to challenge the designation-only the group itself by filing suit in Washington. But as Kozinski pointed out, the seven gathered money after 1999, when the D.C. Circuit had held that the designation violated due process, but before the U.S. attorney general redesignated it a terror group in 2001-retroactively to 1999. Those indicted for fundraising could not raise a challenge to the MEK terror designation in their own defense. The seven will spend up to 10 years in prison “for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization,” wrote Kozinski. That list currently contains more than 35 groups. “In this case and others we are seeing the government taking extreme steps and going beyond what the Constitution allows in their association,” said Rebekah Evenson of San Francisco’s Altshuler, Berzon, Nussbaum, Rubin & Demain, an attorney for one of the Iranians. Evenson said that they are considering a Supreme Court appeal but no decision has been made. The Justice Department did not return a call for comment on the cases. Cole said that “both decisions reflect the judges’ recognition that we have gone overboard in the attempt to cut off funding for support for terror organizations.” He added, “We have resurrected a guilt by association akin to the McCarthy era.” Cole has a separate challenge in the case of the Humanitarian Law Project in Los Angeles that faced criminal sanctions if it continued training peaceful negotiation tactics to a Kurdish group designated as foreign terrorists because the training was considered material support to a terror group. Humanitarian Law Project v. Reno, 205 F.3d 1130 (2000), is back before the 9th Circuit.

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