First of several illegal provisions struck down by federal court
By David Rosenzweig
First published by the Los Angeles Times, January 27, 2004
The part of the “USA Patriot” Act that makes it illegal to give “expert advice or assistance” to foreign terrorist organizations has been declared unconstitutional by a Los Angeles federal judge.
In a ruling issued late Friday and made public Monday, U.S. District Judge Audrey B. Collins said the language in the law was so vague that “it could be construed to include unequivocally pure speech and advocacy protected by the 1st Amendment.”
The Washington, D.C.-based Center for Constitutional Rights, which brought the legal challenge, said it was the first time that any part of the post-9/11 anti-terrorism law had been declared unconstitutional.
Passed overwhelmingly by Congress, the Patriot Act contains more than 300 pages of amendments that give sweeping powers to law enforcement authorities. Since its passage, the act has come under increasing attack from a variety of quarters, from civil libertarians to librarians and politicians.
A spokesman for Atty. Gen. John Ashcroft said an appeal was being considered.
The center filed its lawsuit on behalf of two individuals and five organizations that support the Kurdistan Workers Party in Turkey and the Liberation Tigers of Tamil Eelam in Sri Lanka. Both groups were designated in 1997 as terrorist by the State Department.
The American plaintiffs in the lawsuit said they were interested only in providing humanitarian aid to the two groups, including advocating on their behalf before Congress and the United Nations and helping them with various nonviolent economic, social and educational programs.
“Our clients sought only to support lawful and nonviolent activity, yet the Patriot Act draws no distinction whatsoever between expert advice in human rights, designed to deter violence, and expert advice on how to build a bomb,” said David Cole, an attorney with the center and a Georgetown University law professor.
In a 36-page opinion, Collins concurred, saying that “the USA Patriot Act places no limitation on the type of expert advice and assistance which is prohibited, and instead bans the provision of all expert advice and assistance, regardless of its nature.”
The Justice Department denied that the law was vague. It contended in court papers that the Patriot Act did not bar advocacy on behalf of terrorist groups, but that other forms of support were clearly prohibited.
The contested portion of the law bars anyone from knowingly providing material support or resources to a designated foreign terrorist organization. Material support and resources are defined as money, lodging, training, expert advice or assistance, safe houses, false documents, communications equipment, weapons, explosives, personnel and transportation. Medicines and religious materials are specifically exempt.
Violators can be imprisoned for up to 15 years or face life imprisonment if their activities cause a death.
In their lawsuit, the plaintiffs said they had not provided any kind of support to the Kurdistan Workers Party or the Tamil Tigers, fearing criminal prosecution. The Workers Party was formed 25 years ago with the stated goal of winning self-determination for the Kurds in southeastern Turkey. The organization’s American supporters include the Los Angeles-based Humanitarian Law Project, headed by a retired administrative law judge, Ralph Fertig.
Fertig, a plaintiff in the lawsuit, stated that he and other members wanted to advocate for the Workers Party before Congress and the United Nations; to teach the party and the Kurds how to use international law to seek redress of their grievances; and to assist party leaders at future conferences aimed at reaching a peaceful settlement with Turkey.
In their complaint, the Tamil Tigers’ supporters — four organizations and one individual — said they wanted to provide medical advice and assistance to hospitals and medical centers in Tamil-controlled areas of Sri Lanka and also to offer the Tamil Tigers advice on economic development, law and political organization
Collins’ ruling was a replay of a decision she handed down three years ago in a case involving the same plaintiffs and the Antiterrorism and Effective Death Penalty Act of 1996, predecessor to the USA Patriot Act. In the earlier lawsuit, Collins found that the law’s prohibition against providing “personnel” or “training” to terrorist organizations was also unconstitutionally vague.
A panel of the U.S. 9th Circuit Court of Appeals upheld the judge in a 2-1 decision last December. The Justice Department is seeking a review of that ruling by an 11 member appeals court panel. Mark Corallo, the Justice Department’s public affairs director, said Monday that the government would consider asking that panel to take up Collins’ latest ruling as well.
In a written statement, he defended the Patriot Act as “an essential tool in the war on terror.” The law, he said, “has played a key part — and often the leading role — in a number of successful operations to protect innocent Americans from the deadly plans of terrorists dedicated to destroying America and our way of life.”
In his State of the Union address last week, President Bush made a point of defending the Patriot Act.
But on the next day, the Los Angeles City Council passed a resolution stating its opposition to the law.
© 2004 The Los Angeles Times