Humanitarian Law Project v. U.S. Treasury Dept.

578 F.3d 1133

HUMANITARIAN LAW PROJECT; Ralph Fertig; Ilankai Thamil Sangam; Tamil Welfare and Human Rights Committee; World Tamil Coordinating Committee; Nagalingam Jeyalingam, Plaintiffs-Appellants, v. UNITED STATES TREASURY DEPARTMENT; Timothy F. Geithner, Secretary of the OPINION Treasury; Eric H. Holder Jr., Attorney General; United States Department of Justice; Hillary Rodham Clinton, Secretary of State; United States Department of State,^* Defendants-Appellees.

No. 07-55893.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 19, 2008.

Filed August 24, 2009.

David Cole, Georgetown University Law Center, Washington, D.C., for the plaintiffs-appellants.

Joshua Waldman, U.S. Department of Justice, Civil Division, Washington, D.C.; Douglas N. Letter, U.S. Department of Justice, Civil Division, Washington, D.C., (argued), for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Audrey B. Collins, District Judge, Presiding. D.C. No. CV-05-08047-ABC.

Before HARRY PREGERSON and PAMELA ANN RYMER, Circuit Judges, and EDWARD R. KORMAN,^** District Judge.

Opinion by Judge RYMER; Dissent by Judge PREGERSON.

RYMER, Circuit Judge:

We are asked to invalidate the President's authority to designate terrorist organizations when there is an extraordinary threat to national security, as well as the Secretary of the Treasury's authorization to designate further organizations; and to declare that a ban on providing "services" to, or for the benefit of, such organizations, is unconstitutionally vague and overbroad.

In the wake of September 11, 2001, President George W. Bush declared a national emergency and, invoking the powers vested in him by the International Economic Powers Act (IEEPA), 50 U.S.C. § 1701, et seq., and the United Nations Participation Act (UNPA), 22 U.S.C. § 287c, signed Executive Order 13224. The Executive Order blocks property of twenty-seven designated terrorists, and authorizes the Secretary of the Treasury to designate others whom the Secretary determines to be acting for, providing support or services to, or are otherwise associated with, designated persons.

The Humanitarian Law Project (HLP)¹ wants to support lawful activities of two organizations that are designated as foreign terrorist organizations—the Kurdistan Worker's Party (PKK) in Turkey, and the Liberation Tigers of Tamil Elam (LTTE) in Sri Lanka. It claims to have been deterred from doing so out of fear that HLP, too, will be designated as a terrorist organization pursuant to Executive Order 13224 and its implementing regulations, if HLP provides services of any sort to the PKK and the LTTE. Consequently, HLP brought this action to challenge, on First and Fifth Amendment grounds, the President's authority to designate organizations as terrorists under IEEPA and UNPA; the Secretary of the Treasury's designation authority from the President under Executive Order 13224; the Executive Order's ban on providing services to designated terrorist organizations; and the regulatory licensing scheme under which organizations may apply for permission to engage in activities that are otherwise prohibited.

The district court held in published opinions that HLP lacks standing to contest the President's authority or the licensing scheme; and rejected its contention that the Secretary's designation authority, or the ban on services, is unconstitutionally infirm. Humanitarian Law Project v. United States Dep't of Treasury, 463 F.Supp.2d 1049 (C.D.Cal.2006); Humanitarian Law Project v. United States Dep't of Treasury, 484 F.Supp.2d 1099 (C.D.Cal. 2007).

We agree with the district court that the Humanitarian Law Project lacks standing to challenge the President's designation authority because HLP has never been designated, or threatened with designation, on account of it. We disagree with HLP's contention that self-censorship suffices for injury-in-fact because IEEPA on its face does not regulate speech, but conduct. Therefore, the standing requirements for preenforcement challenges set out in Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134 (9th Cir.2000), apply. We conclude that HLP likewise cannot show injury-in-fact with respect to the licensing regulations as it has never applied for, or been denied, a license. We also agree with the district court that the Secretary's authority to designate terrorist groups is adequately constrained by criteria in the Executive Order. Similarly, the ban on "services" to designated organizations is not unconstitutionally vague; "services" are clearly enough delineated by examples in the regulations for a person of ordinary intelligence to understand what kind of activities are not permitted. HLP worries that protected speech such as independent advocacy may be caught in the net, but the Secretary does not interpret the ban this way, nor do we. Finally, we hold that no mens rea is required for IEEPA's civil provisions, and its criminal provisions raise no constitutional concerns as they include willfulness, or knowledge of unlawfulness, as an element. Accordingly, we affirm.

I

This is not the first time that HLP and the government have collided over the government's power to regulate non-terrorist activities in aid of terrorist organizations. HLP previously took on the ban against providing material support and resources to foreign terrorist organizations in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, and its 2004 amendment, the Intelligence Reform and Terrorism Prevention Act (IRTPA), see 18 U.S.C. § 2339B. That history is recounted in Humanitarian Law Project v. Mukasey, 552 F.3d 916, 920-24 (9th Cir.2009) (HLP III) (amending opinion filed December 10, 2007). Though involving a different statute with different text, HLP III and Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) (HLP I), inform some of the issues in this case and both parties draw succor from what we have held.

AEDPA made it a crime for anyone knowingly to provide "material support or resources" to a foreign terrorist organization designated by the Secretary of State. 8 U.S.C. § 1189(a)(1); 18 U.S.C. § 2339B(a). HLP argued that AEDPA imposed guilt by association, and was unconstitutionally vague and overbroad. We rejected HLP's right of association argument in HLP I, holding that the statute prohibited "the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives with which to carry out their grisly missions." HLP I, 205 F.3d at 1133. We pointed out that advocacy is different from donations of material support, expressive conduct is different from pure speech, and "money is fungible; giving support intended to aid an organization's peaceful activities frees up resources that can be used for terrorist acts." Id. at 1136. We also noted that AEDPA did not regulate speech or association per se, and rejected HLP's argument that the Secretary of State had unfettered discretion to designate a group as a foreign terrorist organization. Id. at 1136-37. We held that the Secretary's authority to designate only those groups that engage in terrorist activities sufficiently cabined his discretion. However, we agreed with HLP that two components of "material support"— "training" and "personnel"—were unconstitutionally vague because uncertainty about what was meant could blur the line between protected expression and unprotected conduct. Id. at 1137-38.

After HLP I (on interlocutory appeal) and before HLP III (on appeal from summary judgment), Congress amended the definition of "material support or resources" to include, among other things, an additional prohibition against providing "service" to a designated foreign terrorist organization. HLP III, 552 F.3d at 923. Responding to HLP's due process argument, we declined to read a specific intent requirement into the revised statute, as it already required knowledge that the organization to which material support was offered was a designated foreign terrorist organization. Id. at 926. However, we held that prohibitions on providing "training," "expert advice or assistance," "service" and "personnel" to designated organizations were unconstitutionally vague because these terms could be read as encompassing speech and advocacy protected by the First Amendment. Id. at 928-30. We declined to hold that AEDPA's ban against providing "material support or resources" was overbroad, as it was not aimed at expressive conduct but rather, as we said in HLP I, "at stopping aid to terrorist groups." Id. at 931-32 (quoting HLP I, 205 F.3d at 1135).

IEEPA, which was enacted in 1977, was not at issue in the earlier litigation. It vests the President with authority to deal with any "unusual and extraordinary threat" to the national security whose source in whole or substantial part is outside of the United States, if the President declares a national emergency. 50 U.S.C. § 1701(a).² IEEPA mandates that the President must consult Congress "in every possible instance" before exercising his authority, id. § 1703(a), and the President's actions are to be reviewed periodically by Congress, id. § 1622(b). When such a national emergency is declared, IEEPA provides that the President may issue regulations to "block" any transaction "with respect to ... any property in which any foreign country or a national thereof has any interest[.]" Id. § 1702(a)(1)(B). However, the President's authority does not extend to regulating or prohibiting donations of food, clothing, and medicine, intended to be used to relieve human suffering, unless the President determines that such donations would "seriously impair his ability to deal with any national emergency." Id. § 1702(b)(2). Section 1704 provides that "[t]he President may issue such regulations, including regulations prescribing definitions, as...