Humanitarian Law Project v. United States Department of Justice

RAWLINSON, Circuit Judge,

dissenting.

I respectfully dissent from that portion of the majority opinion holding that 18 U.S.C. § 2339B violates Plaintiffs’ due process rights under the Constitution.

As a preliminary matter, I would not exercise our available discretion to reach the due process issue. The majority opinion notes that the Plaintiffs raised the due process issue “for the first time on appeal to this court.” (Maj. Opinion at 394). Nevertheless, the majority elected to exercise its discretion to resolve the newly-raised due process issue, ostensibly to prevent injustice. (Maj. Op. at 394).

The majority opinion relies primarily upon the case of Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) to justify the exercise of discretion to address this previously unmentioned claim. The majority opinion implies that “injustice might otherwise result” if the Plaintiffs’ newly-minted due process claim went unresolved on appeal. (Maj. Op. at 394). However, it is interesting to note that in W%ilff, the Supreme Court expressly ruled that the case under consideration was not one “where injustice might otherwise result” if the newly raised issue went unresolved on appeal. 428 U.S. at 121, 96 S.Ct. 2868.

*406In Wulff, the Supreme Court identified the case of Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), as an example of a circumstance “where injustice might otherwise result” absent resolution of a previously unraised issue. Id.

In Hormel, the Supreme Court determined that “injustice might otherwise result” because, absent resolution of the previously unraised issue, the taxpayer would “escape payment of a tax which under the record before us he clearly owes.” 312 U.S. at 560, 61 S.Ct. 719.

No such eventuality looms over the parties in this case. There is no assertion that any party will escape prospective culpability or lose prospective enforcement capability.

No extraordinary issues of injustice exist in this case. Accordingly, I would not exercise discretion to review the previously unraised issue of whether or not 18 U.S.C. § 2339B violates Plaintiffs’ due process rights under the Fifth Amendment to the United States Constitution. Nevertheless, in recognition of the majority’s disagreement with that view, I proceed to a discussion of the merits of Plaintiffs’ due process claims.

No one disputes that the PKK and the LTTE are terrorist organizations. The record in this case reflects that the PKK’s terrorist activities have resulted in the deaths of over 22,000 individuals, primarily from bombings. The LTTE has a similar history, engaging in bombings, gun battles, assassinations, and machete attacks, causing widespread death and destruction. Despite these organizations’ conceded histories of extreme violence, Plaintiffs assert that § 2339B deprives them of their due process rights to contribute to the nonviolent activities of the PKK and the LTTE.

It is important to note that § 2339B prohibits “knowingly providing] material support or resources to a foreign terrorist organization.” Nonetheless, the majority rules that the Plaintiffs’ due process rights are violated absent a narrowing interpretation that incorporates a showing of “personal guilt” on the part of the donor. (Maj. Op. at 402-03).

The majority opinion cites five cases to bolster its “personal guilt” theory:

1) Scales v. United States, 367 U.S. 203, 224-28, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961);
2) Hellman v. United States, 298 F.2d 810, 813-14 (9th Cir.1961);
3) Brown v. United States, 334 F.2d 488, 491-492, 496 (9th Cir.1964);
4) Wieman v. Updegraff, 344 U.S. 183, 188, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1952); and
5) Aptheker v. Secretary of State, 378 U.S. 500, 514, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964).

Regrettably, I cannot agree that these cases support application of the “personal guilt” theory to the facts of this case, because none of the cases relied upon by the majority are analogous.

Scales involved the Smith Act, which prohibited, among other things, membership in a group that advocated overthrowing the United States government. 367 U.S. at 206 n. 1, 81 S.Ct. 1469. In rejecting Mr. Scales’ due process challenge, the Supreme Court ruled that no conviction could rest on mere membership “unaccompanied by any significant action in its support ...” Id. at 228, 81 S.Ct. 1469. We have exactly the opposite circumstance in this case — no evidence of membership, but substantial evidence of “significant action in [ ] support” of terrorist groups. I read Scales as undergirding, rather than undermining, § 2339B’s provisions.

In Hellman, we also addressed the Smith Act, and followed the Scales ruling *407that active membership in an organization, without a showing of nefarious intent to accomplish the illicit ends of the organization, cannot support a criminal conviction. 298 F.2d at 812-14. As with the Scales case, I cannot say that the court in Hellman would have reached the same result if it were dealing with a statute such as § 2339B, which prohibits not membership in, but material support of, the designated organization.

In Brown, we discussed the portion of the Labor-Management Reporting and Disclosure Act that barred members of the Communist Party from holding any office within a labor organization. 334 F.2d at 490 n. 1. In Brown, we recognized that Scales involved the interpretation of “a statute which attributed to an individual member of an organization, seemingly on the basis of membership alone, criminal conduct in which the organization was found to be engaged.” Id. at 496. In Brown, we acknowledged that the statute under review imposed “criminal punishment on the basis of union officership combined with Communist Party membership per se.” Id. The Brown case continues the “personal guilt” theme, without extending it as far as the majority opinion does-to those who provide material support to acknowledged anarchists.

In Wieman, the Supreme Court reviewed an Oklahoma statute prescribing a loyalty oath required of all state employees. The loyalty oath required a disavowal of membership in any group that advocates the overthrow of the United States by violent means. 344 U.S. at 186 n. 1, 73 S.Ct. 215. The Supreme Court noted that the loyalty oath violated due process because “under the Oklahoma Act, the fact of association alone determines disloyalty and disqualification.” Id. at 191. As with the other cases relied upon by the majority, the Supreme Court based its finding of unconstitutionality on the pivotal factor that the Oklahoma law punished pure association, rather than actively providing material support to an illicit organization.

Finally, Aptheker involved the constitutionality -of the Subversive Activities Control Act of 1950, which prohibited any member of a Communist organization from acquiring or using a passport. 378 U.S. at 501-02, 84 S.Ct. 1659. In finding a due process violation of the right to travel abroad, the Supreme Court emphasized that “[t]he prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe.” Id. at 514, 84 S.Ct. 1659 (emphasis added). As with the other “membership” cases, the sole basis upon which the statute was invalidated was its criminalization of membership status alone.

None of these five cases, fairly read, support the majority’s holding that a narrowing interpretation is required to salvage § 2339B. Simply stated, the Plaintiffs sought and secured a ruling that so long as they profess an intent to further only the legitimate goals of the terrorist organizations, their material support of these organizations should escape scrutiny or consequence.

We rejected the “wide-eyed innocent” preemptive defense in Humanitarian Law Project v. Reno, the prior appeal of this case. 205 F.3d 1130 (9th Cir.2000). After examining § 2339B in light of an asserted First Amendment violation, we held that “[mjaterial support given to a terrorist organization can be used to promote the organization’s unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used. We therefore do not agree with ADC II’s implied holding that the First Amendment requires the government to *408demonstrate a specific intent to aid an organization’s illegal activities before attaching liability to the donation of funds.” Id. at 1134.

Although made in the context of a First Amendment challenge to § 2339B, our rationale also resonates in the face of a Fifth Amendment due process challenge. The cases relied upon by the majority engraft-ed a mens rea requirement upon statutes that prohibited mere membership in an illicit organization. In addition, the subversive activities attributed to the organizations contemplated in the statutes were more theoretical than real. In contrast, § 2339B applies in this case to real-life terrorist organizations that have engaged in all-too-real terrorist sorties resulting in widespread death and destruction. Faced with this reality, I cannot agree that the majority’s holding is dictated by precedent. I would AFFIRM the district court’s ruling in its entirety.