U.S. v. Al-Arian

329 F.Supp.2d 1294

UNITED STATES of America v. Sami Amin AL-ARIAN, Sameeh Hammoudeh, Ghassan Zayed Ballut, Hatim Naji Fariz

No. 8:03CR77T30TBM.

United States District Court, M.D. Florida, Tampa Division.

August 4, 2004.

Daniel W. Eckhart, U.S. Attorney's Office, Middle District of Florida, Orlando, FL, Walter E. Furr, III, U.S Attorney's Office, Middle District of Florida, Tampa, FL, for Plaintiff.

Kevin T. Beck, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, Stephen N. Bernstein, Stephen N. Bernstein, P.A., Gainesville, FL, Jeffrey Geldert Brown, Brown & Doherty, P.A, Palm Harbor, FL, Richard P. Condon, Law Office of Richard P. Condon, Kissimmee, FL, M. Allison Guagliardo, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, Daniel Mario Hernandez, Law Office of Daniel M. Hernandez, Tampa, FL, Donald E. Horrox, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, Bruce G. Howie, Piper, Ludin, Howie & Werner, P.A., St. Petersburg, FL, Franklyn Louderback, Louderback and Helinger, St. Petersburg, FL, Nicholas M. Matassini, The Matassini Law Firm, P.A., Tampa, FL, William B. Moffitt, Cozen O'Connor, P.C., Washington, DC, Linda G. Moreno, Law Office of Linda Moreno, Tampa, FL, Wadie E. Said, Federal Public Defender's Office, Middle District of Florida, Tampa, FL, Terry Zitek, U.S. Attorney's Office, Tampa, FL, for Defendants.

ORDER

MOODY, District Judge.

This cause came on for consideration without oral argument upon the Government's Motion for Modification of Ruling on Scienter under 18 U.S.C. § 2339B(a)(1) (Dkts.# 519, 520) and Defendants' responses (Dkts.# 540, 541, 543, 563) thereto. After close consideration, the motion is denied.

I. BACKGROUND

This is a criminal action against alleged members of the Palestinian Islamic Jihad-Shiqaqi Faction (the "PIJ") who purportedly operated and directed fundraising and other organizational activities in the United States for almost twenty years. The PIJ is a foreign organization that uses violence, principally suicide bombings, and threats of violence to pressure Israel to cede territory to the Palestinian people. The PIJ has been designated a foreign terrorist organization ("FTO") and a specially designated terrorist ("SDT") by the United States government. Both designations create potential legal consequences (including criminal liability) to those people in the United States that support or are associated with the PIJ.

On February 19, 2003, the government indicted eight defendants in a 50 count indictment that included counts for: (1) conspiracy to commit racketeering (Count 1); (2) conspiracy to commit murder, maim, or injure persons outside the United States (Count 2); (3) conspiracy to provide material support to or for the benefit of foreign terrorists (Counts 3 and 4); (4) violations of the Travel Act (Counts 5 through 44); (5) violation of the immigration laws of the United States (Counts 45 and 46); (6) obstruction of justice (Count 47); and (7) perjury (Counts 48 through 50). The four Defendants¹ that are before this Court moved to dismiss the Indictment, raising a variety of constitutional and procedural issues. In support of their respective positions, Defendants and the government filed over three hundred pages of briefs. The parties' briefs largely concentrated on the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 ("AEDPA"). In addition to the lengthy briefs filed by the parties, this Court conducted an oral argument that lasted over three hours that also focused on the constitutionality of AEDPA and the statutory construction of that statute.

During oral argument, this Court questioned government's counsel at length on the mens rea required to support a conviction under Section 2339B of AEDPA. The government took the position that the mens rea necessary to support a conviction under Section 2339B was proof that a: "defendant knew of the designation of the organization as a foreign terrorist organization or the defendant knew that the organization engaged in or had engaged in terrorist activity...." Hrg. Tr. Jan. 21, 2004 at 81. Indeed, the government explicitly adopted the mens rea requirements utilized by the Ninth Circuit in Humanitarian Law Project v. U.S. Dep't of Justice, 352 F.3d 382 (9th Cir.2003) (hereinafter "Humantarian II") and Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) (hereinafter "Humanitarian I") (collectively Humanitarian I and Humanitarian II are referred to as the "Humanitarian cases").² The government argued that the presence of a mens rea requirement in AEDPA avoided or cured the constitutional problems raised by Defendants.

On March 12, 2004, this Court entered an Order disposing of numerous pretrial motions, including Defendants' motions to dismiss the Indictment. In its Order, this Court denied almost all of Defendants' motions to dismiss,³ including Defendants' motions to declare AEDPA unconstitutional. As a prerequisite to dealing with the constitutionality of AEDPA, this Court interpreted the mens rea required to support a conviction under Section 2339B(a)(1) as requiring the government to prove beyond a reasonable doubt that a defendant knew (had a specific intent) that the support would further the illegal activities of a FTO.⁴ On April 26, 2004, the government sought reconsideration of this specific intent requirement.⁵ For the most part, the government's arguments in the instant motion remain unchanged from those positions it advanced in response to the original motions to dismiss.⁶

II. DISCUSSION

While this Court does not normally view its role in the federal judiciary as one to comment on theoretical or philosophical subjects, this Court finds that it is appropriate to do so briefly here. Underlying the motions to dismiss is a question that has troubled courts throughout this Nation's history: how does this Nation (and its courts) balance an individual's constitutional rights against national security and foreign policy interests? Normally, the doctrine of separation of powers requires that courts, including this one, defer to executive and legislative determinations on foreign policy and national security questions. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 696, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (stating that "heightened deference [is due] to the judgments of political branches with respect to matters of national security."). But, less deference is required when individual constitutional rights are implicated. See, e.g., United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (stating that: "[i]t would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those [constitutional] liberties ... which makes the defense of the Nation worthwhile."). More recently, Justice O'Connor acknowledged the judiciaries' role in such issues, stating that in "our most challenging and uncertain moments ... we must preserve our commitment at home to the principles for which we fight abroad." Hamdi v. Rumsfeld, ___ U.S. ___, ___, 124 S.Ct. 2633, 2647-48, 159 L.Ed.2d 578 (2004) (O'Connor, J., plurality). She continued by bluntly commenting that "a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens" and that the courts should play their necessary role to balance individual constitutional rights with the government's interest(s). Id. at 2650.

While these Defendants have not been charged with making war against the United States and no state of war exists between the United States and the PIJ, the foreign policy and national security interests implicated in this case and by AEDPA are no less weighty. In its prior Order, this Court, being mindful of the weighty governmental interests implicated in this case and the First Amendment and other constitutional rights of these Defendants, attempted to achieve the appropriate balance. The government now seeks reconsideration of that balance, arguing that this Court weighed too heavily the individual constitutional rights⁷ touched by 18 U.S.C. § 2339B.⁸ This Court disagrees.

A. STATUTORY INTERPRETATION

In its prior Order, the question of statutory interpretation before this Court was how to construe Section 2339B(a)(1), which provides that persons who:

knowingly provide[ ] material support⁹ or resources to a foreign terrorist organization, or attempt[ ] or conspire[] to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and if the death of any person results, shall be imprisoned for any term of years or for life.

18 U.S.C. § 2339B(a)(1). There are at least three logical constructions of the level of knowledge required by this statute:

(1) knowledge simply that a person is providing something defined as "material support" in the statute;¹⁰

(2) knowledge, in addition to the first requirement, that the recipient is a FTO or is an entity that engaged in the type of terrorist activity that would lead to designation as a FTO; or

(3) knowledge, in addition to the previous two requirements, that the recipient could or would utilize the support to further the illegal activities of the entity.

The government concedes that the first construction violates the Supreme Court's decision in United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). It urges that this Court reconsider its prior ruling, adopt the second construction, and reject the third construction (the construction that this Court previously chose). Central to this Court's adoption of the third construction and largely unaddressed in the instant motion is the canon of statutory interpretation that courts are to interpret statutes in a manner that avoids constitutional difficulty.¹¹ See, e.g., Jones v. United States, 526 U.S. 227, 239-40, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); X-Citement Video, 513...