Judge MICHAEL and Judge GREGORY join in this dissent.
GREGORY, Circuit Judge,dissenting.
I join in full Judge Motz’s fine dissenting opinion on the Blakely issues. I write separately, however, to dissent from the judgment. I believe the majority incorrectly concludes that AEDPA’s “material support” provision, 18 U.S.C. § 2339B, is constitutional as applied in this case. As the Ninth Circuit has held, a strict textual reading of § 2339B(a)(l)’s plain language raises serious due process concerns. See Humanitarian Law Project v. U.S. Dep’t of Justice, 352 F.3d 382, 396 (9th Cir.2003) (hereinafter “Humanitarian Law Project III”) (“We believe that serious due process concerns would be raised were we to accept the argument that a person who acts without knowledge- of critical information about a designated organization presumably acts consistently with the intent and conduct of that designated organization.”).1
Unlike the Ninth Circuit, however, I do not believe that these constitutional infirmities can be cured by reading the statutory term “knowingly” as a scienter requirement meaning only that the defendant had knowledge of the organization’s designation as a foreign terrorist organization (“FTO”), or that he or she knew of the organization’s unlawful activities that caused it to be so designated.2 See id. at 400. But cf. Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir.2000) (“Humanitarian Law Project II ”) (Kozin-ski, J.) (stating “the term ‘knowingly’ modifies the verb ‘provides,’ meaning that the only scienter requirement here is that the accused violator have knowledge of the fact that he has provided something, not knowledge of the fact that what is provided in fact constitutes material support”). Instead, I would follow the reasoning of United States v. Al-Arian, 308 F.Supp.2d 1322 (M.D.Fla.2004), and conclude that to save the statute, one must apply the mens rea requirement to the entire “material support” provision such that the government must prove that the defendant (1) knew the organization was a FTO or knew of the organization’s unlawful activities that caused it to be so designated and (2) *372knew what he or she was providing was “material support,” ie., the government must show that the defendant had a specific intent that the support would further the FTO’s illegal activities. Because Ham-moud was convicted of “material support” without the proper scienter requirement, violating his constitutional rights under the First and Fifth Amendments, I would hold that these constitutional violations constitute plain error and thus vacate his material support conviction.
I.
Hammoud and his Amici Curiae, the Center for Constitutional Rights, the National Coalition to Protect Political Freedom, the National Association of Criminal Defense Lawyers, and the National Lawyers Guild, raise a bevy of constitutional challenges to Hammoud’s conviction under 18 U.S.C. § 2339B, including assertions that the “material support” provision is vague and overbroad in violation of the First Amendment, and that the statute violates the First and Sixth Amendments because the defendant cannot challenge the FTO designation. Moreover, .Ham-moud and Amici Curiae challenge Ham-moud’s conviction on the basis that the statute lacks a specific intent requirement, which they contend is essential to avoid “guilt by association” in violation of the First and Fifth Amendments.
A.
To be sure, Hammoud faces a most difficult burden in this case because he failed to raise his constitutional claims at trial. Accordingly, we review his claims for plain error. United, States v. Higgs, 353 F.3d 281, 324 (4th Cir.2003) (reviewing constitutional claim not raised below for plain error); United States v. Ferguson, 211 F.3d 878, 886 (5th Cir.2000) (reviewing allegation of constitutional violation for plain error because defendant failed to raise the issue below). But cf. United States v. Osborne, 345 F.3d 281, 284 n. 2 (4th Cir.2003) (noting that the Tenth Circuit applies the plain error rule “less rigidly” when reviewing constitutional issues) (citing United States v. Ciapponi 77 F.3d 1247, 1249-50 (10th Cir.1996)).3 To satisfy this standard, Hammoud must show that (1) an error occurred,(2) the error was plain, (3) and the error affected his substantial rights. United States v. Olano, 507 U.S. 725, 731-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); accord Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). If the first three elements are met, we may exercise our discretion to correct such forfeited error only where it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732, 113 S.Ct. 1770 (internal quotation marks and citations omitted); see also Fed.R.Crim.P. 52(b) (2002) (“A plain error or defect that affects substantial rights may be considered even though it was not brought to the court’s attention.”). When “overwhelming and essentially uncontro-verted” evidence exists to support the challenged finding, there is “no basis for concluding that the error seriously affected the fairness, integrity or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal quotation marks and citations omitted).
B.
In 8 U.S.C. § 1189(a), Congress authorized the Secretary of State (hereinafter the *373“Secretary”) to designate an organization as a “foreign terrorist organization.” To exercise this authority, the Secretary must find the organization (1) is foreign, (2) engages in terrorist activity, and (3) such activity threatens the security of United States nationals or the national security of the United States. Id. § 1189(a)(1).4 In determining whether to designate an organization as a FTO, the Secretary is not required to notify the organization being considered for designation. Moreover, the organization does not have a right to be heard during the designation process.5 Instead, the Secretary compiles an “administrative record” in which “findings” are made as to whether an organization is to be designated. Id. §§ 1189(a)(2)(A)(i), (3)(A).
If an organization is so designated, the consequences are “dire.” Nat’l Council of Resistance of Iran, 251 F.3d at 196. Its members and representatives may not enter the United States, 8 U.S.C. § 1182(a)(3)(B)®, its assets may be frozen by the Department of Treasury, id. § 1189(a)(2)(C), and financial institutions are required to freeze its assets, 18 U.S.C. § 2339B(a)(2). Moreover, as is at issue here, § 2339B makes it a crime punishable by a maximum of life imprisonment if a person “knowingly provides material support or resources” to such an organization. Id. § 2339B(a)(l). “Material support or resources” includes “currency or monetary instruments, financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine and religious materials.” Id. §§ 2339A(b), 2339B(g)(4).6 The statute does not define what those terms mean in the context of the proscribed activity.
A designated organization may seek review of the Secretary’s designation, but may only do so in the Court of Appeals for the District of Columbia. Id. § 1189(b)(1). The District of Columbia Circuit’s review is “based solely upon the administrative record,” but the government may submit classified information for in camera review. Id. § 1189(b)(2). Moreover, the Secretary’s designation may only be set aside if it is arbitrary or capricious, or otherwise contrary to law. Id. Finally, § 1189(a)(8) expressly states that a defendant may not contest the validity of the organization’s designation as a defense or objection at trial.
In both October of 1997 and October of 1999, the Secretary designated Hizballah as a FTO. 64 Fed.Reg. 55,112 (1999); 62 Fed.Reg. 52,650 (1997). Neither the record nor case law indicates that Hizballah has ever challenged the validity of this designation.
In the instant case, Count 72 of the Second Superceding Indictment alleged that Hammoud engaged in a conspiracy to provide “material support” to Hizballah and that its objective was to furnish the *374FTO “currency, financial services, training, false documentation and identification, communications equipment, explosives and other physical assets to Hizballah and its operatives, in order to facilitate its violent attacks.” J.A. 482 ¶ 3. Hammoud was identified as a fund-raiser, id. at 483 ¶ 4(e), and Count 78 alleged that he provided material support to Hizballah by transmitting $3,500 to Sheik Abbas Harake via Said Harb, id. at 498 ¶ 2. The jury convicted Hammoud on both counts.
II.
As noted above, Hammoud levies a series of interwoven7 First and Fifth Amendment challenges against AEDPA’s material support provisions. Specifically, he alleges that the material support provision (1) penalizes association; (2) is imper-missibly vague; (3) is facially overbroad;8 and (4) violates due process and his Sixth Amendment right to a jury trial.9
A.
Hammoud and Amici Curiae argue that the “material support” provision is unconstitutional because it penalizes association, in violation of the First Amendment, and fails to require the requisite specific intent, thus contravening the Fifth Amendment *375requirement of “personal guilt.” They first frame these arguments by relying on the unimpeachable, but basic and preliminary, proposition that the Constitution protects individuals from being punished solely because of their association with a group. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (holding that “liability may not be imposed merely because an individual belonged to a group, some members of which committed acts of violence”); Healy v. James, 408 U.S. 169, 186, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (holding that “guilt by association” may not be imposed); Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961) (“If there were a[ ] blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired.”).
The counter argument to this basic proposition, of course, is that § 2339B does not seek to impose criminal liability for association or membership alone, but instead does so for involvement in terrorism — i.e., “material support.” In this vein, the government asserts that Hammoud’s arguments obscure the gravamen of the offense of which he was convicted; specifically, it argues that the overt act of providing $3,500 to Said Harb, which was passed on to Sheik Abbas Harake, is distinguishable from association.10 To advance its argument, the government relies on a body of cases in which AEDPA’s material support provision has been held distinguishable from a prohibition on association. See People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1244 (D.C.Cir.2003) (holding the material support provision does not violate rights of free speech and association); Humanitarian Law Project II, 205 F.3d at 1133 (“[AEDPA] does not prohibit being a member of one of the designated groups .... Plaintiffs are even free to praise the group for using terrorism as a means of achieving their ends. What AEDPA prohibits is the act of giving material support, and there is no constitutional right to facilitate terrorism by giving terrorists the weapons and explosives .... Nor, of course, is there a right to provide resources with which terrorists can buy weapons and explosives.”); United States v. Sattar, 272 F.Supp.2d 348, 368 (S.D.N.Y.2003) (rejecting “associational rights” claim); United States v. Lindh, 212 F.Supp.2d 541, 549 (E.D.Va.2002) (same).11 *376Typical of this line of cases in which pure First Amendment challenges are at issue, in Humanitarian Law Project II, 205 F.3d at 1133-34, the Ninth Circuit considered the constitutionality of AEDPA’s material support provision. In doing so, the Ninth Circuit held that a “specific intent” requirement, as in the communism cases, should not apply to the provision of material support, because donating money and resources to a designated group is different than being a mere member of, or advocate for, the group in question. Id.
B.
Here, however, Hammoud and Amici Curiae also advance a legally independent — though somewhat interrelated to the First Amendment argument — Fifth Amendment Claim, see Scales, 367 U.S. at 225, 81 S.Ct. 1469 (analyzing Fifth Amendment claim “independently of the claim made under the First Amendment”), which Humanitarian Law Project II and the other cases noted above did not reach. Specifically, to pass Fifth Amendment scrutiny and to avoid a “personal guilt” problem, they argue that AEDPA’s material support provision must include a scien-ter requirement, whereby the defendant must be found guilty of a specific intent to further the illegal aims of the association. Br. of Appellant at 25; Br. of Amici Curiae at 6 (“This statute is so sweeping that it would apply to a citizen who sent a human rights or constitutional law treatise to Hiz-ballah to urge it to respect human rights and desist from committing terrorist acts.”). Hammoud and Amici Curiae rely on more Communist Party cases to support their argument that AEDPA’s “material support” provision is unconstitutional without such a specific intent requirement. See, e.g., United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) (striking sections of statute that prohibited communists from registering to engage in employment at defense facilities); Aptheker v. Sec’y of State, 378 U.S. 500, 511, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (striking down statutory provisions that prohibited members of communist organization from applying for or using a passport because statute did not require specific intent to further the unlawful aims of the organization); Scales, 367 U.S. at 224-25, 81 S.Ct. 1469 (stating that “[i]n our jurisprudence guilt is personal” and holding that punishment can only be justified by connecting “status or conduct to other concededly criminal activity”). In such cases, the Court held that statutory prohibitions “swep[t] too widely and too indiscriminately across the liberty guaranteed in the Fifth Amendment,” Aptheker, 378 U.S. at 514, 84 S.Ct. 1659, because the statutes carried the “danger of punishing a member of a Communist organization ‘for his adherence to lawful and constitutional*377ly protected purposes, because of other and unprotected purposes which he does not share.’ ” Id. at 512, 84 S.Ct. 1659 (quoting Noto v. United States, 367 U.S. 290, 299-300, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961) and citing Scales, 367 U.S. 203, 81 S.Ct. 1469).
Hammoud and Amici Curiae assert that without a specific intent requirement, AEDPA’s material support provision suffers the same fate. In this context, Amici Curiae posit that Humanitarian II’s isolated focus on the First Amendment renders the prohibition on guilt by association a meaningless formality because under the Ninth Circuit’s reasoning:
[E]very anti-Communist law struck down by the Supreme Court for imposing guilt by association could have simply been rewritten to penalize dues payments to the Party. It would also lead to the anomalous result that while leaders of the NAACP could not be held responsible for injuries sustained during an NAACP-led economic boycott absent proof of specific intent, Claiborne Hardware, 458 U.S. at 920, 102 S.Ct. 3409, the NAACP’s thousands of individual donors could have been held liable without any showing of specific intent.
Amicus Br. at 8-9. As the Supreme Court has stated in the Fifth Amendment context:
In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to that relationship of that status or conduct to other concededly criminal activity ..., that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment.
Scales, 367 U.S. at 224-25, 81 S.Ct. 1469. Accordingly, Hammoud and Amici Curiae argue that without a scienter requirement of specific intent, the necessary connection to criminal activity is wanting.
Nevertheless, the government argues, Br. of Gov’t at 22 n.9, that the Ninth Circuit’s most recent examination of the “material support” provision within the Fifth Amendment context in Humanitarian Law Project III assures that the necessary scienter requirement is satisfied, thus preventing any Fifth Amendment violation. In Humanitarian Law Project III, the Ninth Circuit considered a Fifth Amendment “personal guilt” challenge to the “material support” provisions, and correctly recognized that “serious due process concerns” would be raised by § 2339B unless the statute is applied with a scienter requirement. 352 F.3d at 393-94, 396-97. Like in the Communist Party cases upon which Hammoud and Amici Curiae rely, the Ninth Circuit stated that AEDPA’s material support provision “presumes that a person acts with guilty intent whenever that person provides material support to a designated organization.” Id. at 396. The court further remarked, “to attribute the intent to commit unlawful acts punishable by life imprisonment to persons who acted with innocent intent — in this context, without critical information about the relevant organization — contravenes the Fifth Amendment’s requirement of ‘personal guilt.? ” Id. at 397.
However, to avoid the “serious due process concerns [that] would be raised were we to accept the argument that a person who acts without knowledge of critical information about a designated organization presumably acts consistently with the intent and conduct of that designated organization,” id., the Ninth Circuit followed the Supreme Court’s guidance “that ‘a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.’ ” Id. (quoting United States v. X-*378Citement Video, Inc., 513 U.S. 64, 69, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994)). Thus, in its efforts to apply § 2339B constitutionally, the court adhered to well-settled Supreme Court law that there is a presumption of construing criminal statutes to include a mens rea requirement. Id. (citing cases). In applying those principles, the Ninth Circuit determined, as a matter of statutory interpretation, that § 2339B “does not in any way suggest that Congress intended to impose strict liability on individuals who donate ‘material support’ to designated organizations.” Id. at 399. Accordingly, the Ninth Circuit read the word “knowingly” as a limited specific intent requirement, demanding “proof that a defendant knew of the organization’s designation as a terrorist organization or proof that a defendant knew of the unlawful activities that caused it to be so designated ... to convict a defendant under the statute.” Id. at 400; see also id. at 402-03 (holding that to convict under § 2339B, “the government must prove beyond a reasonable doubt that the donor had knowledge that the organization was designated by the Secretary as a[FTO] or that the donor had knowledge of the organization’s unlawful activities that caused it to be so designated”).
While the Ninth Circuit’s interpretation of “knowingly” is more advanced than the quasi-strict liability standard upon which Hammoud was convicted, infra, I submit that such an interpretation of § 2339B’s mental state requirement is still insufficient to withstand constitutional attack. In finding as much, I am in agreement with the recent and well reasoned opinion in United States v. Al-Arian, 308 F.Supp.2d 1322 (M.D.Fla.2004), in which the court considered defendants’ motion to dismiss an indictment alleging a violation of AEDPA’s “material support” provisions.
In Al-Arian, the court agreed with the Ninth Circuit that “a purely grammatical reading of the plain language of Section 2339B(a)(l) makes it unlawful for any person to knowingly furnish any item contained in the material support categories” to a FTO, rendering the provision constitutionally infirm. Id. at 1337 (citing Humanitarian II). The court, however, disagreed with the Ninth Circuit’s attempt to salvage the statute based on application of the statutory term “knowingly” in Humanitarian III, stating that the Ninth Circuit’s construction “only cures some of the Fifth Amendment concerns.” Id. The Al-Arian court first correctly recognized that the Ninth Circuit failed to comply with the Supreme Court’s X-Citement Video holding wherein it stated that a mens rea requirement “should apply to each of the statutory elements that criminalize otherwise innocent conduct,” 513 U.S. at 72, 115 S.Ct. 464, because Humanitarian III applied the mens rea requirement only to the FTO element, not the material support element. Al-Arian, 308 F.Supp.2d at 1337. As such, the Al-Arian court found that under the Ninth Circuit’s construction:
[A] cab driver could be guilty for giving a ride to a FTO member to the UN, if he knows that the person is a member of a FTO .... Similarly, a hotel clerk in New York could be committing a crime by providing lodging to that same FTO member under similar circumstances as the cab driver.
Id. at 1337-38.12 Accordingly, the court rejected Humanitarian III’s construction, *379stating that the Ninth Circuit did not resolve the vagueness concerns. Id. at 1338.13
Yet rather than declare § 2339B unconstitutionally vague, the court applied a saving construction consistent with X-Citement Video, and applied the statute in the manner Hammoud and Amici Curiae advocate. Id. at 1338-39. The court stated:
to convict a defendant under Section 2339B(a)(l) the government must prove beyond a reasonable doubt that the defendant knew that (a) the organization was a FTO or had committed unlawful activities that caused it to be so designated; and (b) what he was furnishing was “material support.” To avoid Fifth Amendment personal guilt problems ... the government must show more than a defendant knew something was within a category of “material support” in order to meet (b). In order to meet (b), the government miist show that the defendant knew (had a specific intent) that the support would further the illegal activities of a FTO.
Id. at 1338-39 (emphasis added).14 Indeed, I note that the Alr-Arian court’s interpretation of § 2339B’s intent requirement, with which I fully agree, is supported by statements in the Congressional Record by Senator Hatch, who cosponsored AEDPA. In introducing the Senate Conference Report to the Senate, Senator Hatch remarked: “This bill also includes provisions making it a crime to knowingly provide material support to the terrorist functions of foreign groups designated by a Presidential finding to be engaged in terrorist activities.” 142 Cong. Rec. 7550 (April 16, 1996) (statement of Sen. Hatch) (emphasis added). In discussing the law, Senator Hatch seemingly made clear that the law’s prohibitions on financing were connected to terrorist acts; he stated:
[N]othing in the Constitution provides the right to engage in violence against fellow citizens or foreign nations. Aiding and financing foreign terrorist bombings is not constitutionally protected activity-I have to believe that honest donors to any organization want to know if their contributions are being used for such scurrilous terrorist pur*380poses. We are going to be able to tell them after this bill.... I am convinced we have crafted a narrow but effective designation provision which meets these obligations while safeguarding the freedom to associate, which none of us would willingly give up.
Id. at 7557 (statement of Sen. Hatch) (emphasis added).
Furthermore, the Al-Arian court also recognized its conclusions regarding § 2339B were consistent with the Seventh Circuit’s treatment of the material support provisions in Boim v. Quranic Literacy Institute & Holy Land Foundation for Relief and Development, 291 F.3d 1000 (7th Cir.2002), which addressed § 2339B in a related context. See Al-Arian, 308 F.Supp.2d at 1339 n. 33. In Boim, the Seventh Circuit considered whether a § 2339B violation could serve as a basis for § 2333 civil liability. The Seventh Circuit acknowledged that the statute contained “tension” regarding a “definition of acts of international terrorism ... so broad that [defendants] might be held liable for involvement in terrorist activity when all they intended was to supply money to fund the legitimate, humanitarian mission of Hamas or other organizations.” Boim, 291 F.3d at 1022. To resolve that tension arising “when a group engages in both protected advocacy and unprotected criminal acts,” the Seventh Circuit turned to Claiborne Hardware, Scales and other Communist Party cases and held that to succeed on a § 2333 claim, a plaintiff must prove “ ‘that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.’ ” Id. at 1022-23 (quoting Claiborne Hardware, 458 U.S. at 920, 102 S.Ct. 3409). Specifically, the Seventh Circuit reasoned that in the § 2333 context, such a showing requires proof “that the defendants knew of [the organization’s] illegal activities, that they desired to help those activities succeed, and they engaged in some act of helping the illegal activities.” Id. (citation omitted); see also id. at 1024 (stating that it was “irrelevant” if the organization engaged in “legitimate advocacy or humanitarian efforts ... if [defendants] knew about [the organization’s] illegal operations, and intended to help [the organization] accomplish those illegal goals when they contributed money to the organization”) (citing Claiborne Hardware, Scales and other cases). In the instant case, the district court did nothing to insure that the jury was instructed upon, and the government met, the proper scienter burden as described above.15
For the foregoing reasons, I believe that § 2339B’s “material support” provisions constitute a violation of the Fifth Amendment when applied without the necessary specific intent requirement. Unlike the situation faced in Al-Arian, however, in Hammoud’s case it is many days too late to apply a savings instruction — or to preliminarily enjoin the government from applying the “material support” provision as written, as in Humanitarian Law Project III — therefore, I turn to the application *381and effect of the constitutional error in this case.
III.
As noted above, to obtain relief on his claim, Hammoud must satisfy the plain error standard, showing that (1) an error occurred, (2) the error was plain, i.e., obvious or clear, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Olano, 507 U.S. at 731-34, 113 S.Ct. 1770. For the reasons that follow, I would find that Hammoud satisfies Olano’s plain error standard and he should be granted a new trial on the “material support” charge.
A.
As discussed at length above, when § 2339B’s “material support” provision is applied without a scienter requirement, as in this case, constitutional error occurs. In Hammoud’s case, that error materialized when the jury was instructed that they could convict Hammoud of violating AEDPA’s material support provision without instructing them of the necessary scienter requirement. On Count 78, the district court judge instructed the jury that to convict Hammoud under 18 U.S.C. § 2339B, “three essential elements” must be found. (1) “[Hammoud] provided or attempted to provide material support or resources to' Hizballah, a designated foreign terrorist organization;” (2) “[Ham-moud] was within the United States or subject to the jurisdiction of the United States;” and (3) “[Hammoud] did such act knowingly.... You will recall the definition! ] I previously gave you for the t'erm[ ] ... knowingly.” J.A. 3391-92. Regarding “knowingly,” the district court had previously charged the jury with the instruction: “The term ‘knowingly’ as used in these instructions to describe the alleged state of mind of the defendant, means that he was conscious and aware of his action, realizing what he was doing or what was happening around him, and did not act because of ignorance, mistake or accident.” Id. at 3302.
In short, the district court judge gave the jury no instructions regarding a scien-ter requirement — whether in a manner akin to that employed by the Ninth Circuit or the Middle District of Florida — for AEDPA’s “material support provision.” While we review an erroneous jury instruction in light of the entire charge, Jones v. United States, 527 U.S. 373, 390-91, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), the district court in the instant case erred by failing to provide appropriate guidance regarding a specific intent requirement.
B.
In finding that the error was plain, I suggest that despite the fact that Ham-moud’s trial counsel did not properly serve up the Fifth Amendment claim here at issue, the district court judge was well-aware of the sweeping nature of the “material support” charge and the inherent possibility that it would criminalize conduct without personal guilt. At the charge conference, the government advocated that the court take the Ninth Circuit’s approach in Humanitarian Law Project II. Citing that case, the government stated, “[y]ou may find a violation even if the defendant did not intend to aid in the organization’s unlawful activities. The whole thing was just sending it to the orphans' to [sic] Hizballah.” J.A. 3256 (emphasis added). While the prosecutor’s statement was clearly tongue-in-cheek, the impact of the “material support” provision as applied had the effect which the prosecutor suggested. Under the district court’s instructions, Hammoud could have been convicted for helping as*382sist Hizballah orphans or humanitarian works if the organization had such projects. While the district court declined to enter the quasi-strict liability instruction that the government advocated, the judge told the prosecutor, “[y]ou can argue that. I’m not going to quote anything from the Ninth Circuit until the Fourth Circuit tells me okay.” Id. at 3256.
Furthermore, the district court implicitly acknowledged the existence of the constitutional infirmities challenged on appeal, yet it chose to proceed with the seienterless instruction nonetheless. In discussing “material support,” the following colloquy took place between the district court judge and the federal prosecutor:
THE COURT: Material support. Define. Now question: Is there any evidence or any question about materiality or is anything that goes considered material support.
[GOVERNMENT]: Except for medicine or religious materials. I think that’s in the—
THE COURT: I guess if you get a few bucks, is that material support? Right out of the statute.
[HAMMOUD’S COUNSEL]: You can throw bibles at them but not money.
THE COURT: Book of stamps and that’s material. All right.
Id. at 3257-58. Thus, the district court judge instructed the jury without imposing a scienter requirement despite an implicit understanding that the “material support” provision potentially criminalizes a broad sweep of conduct which has no connection to “concededly criminal activity,” and the fact that various aspects of the “material support” provisions had already been held to violate the First Amendment. See Humanitarian Law Project II, 205 F.3d at 1137-38 (holding terms “training” and “personnel” in AEDPA’s “material support” provision were unconstitutionally vague).
In demonstrating the plain nature of AEDPA’s constitutional deficient mens rea requirement, perhaps it is best to compare that statute to the Supreme Court’s treatment of the Protection of Children Against Sexual Exploitation Act, 18 U.S.C. § 2252, which the Court held was unconstitutional when applied without a scienter requirement in X-Citement Video, 513 U.S. at 68-72, 115 S.Ct. 464. See Al-Arian, 308 F.Supp.2d at 1335 (stating that in X-Citement Video, “the Supreme Court faced almost the same statutory interpretation issues” as those raised by AEDPA’s material support provision). In X-Citement Video, the Supreme Court interpreted a statutory provision which criminalized the “knowing” transport, shipment, receipt, distribution or production of a “visual depiction involv[ing] the use of a minor engaging in sexually explicit conduct.” 513 U.S. at 68, 115 S.Ct. 464 (citing 18 U.S.C. § 2252) (internal quotation marks omitted). The Supreme Court rejected the Ninth Circuit’s interpretation that the “knowing” mens rea element applied only to the relevant verbs, rather than to the facts that minors were involved and the material was sexually explicit. See id. at 68-69, 115 S.Ct. 464.
The Court held that the Ninth Circuit’s construction led to absurd results under the First Amendment. See id. at 69, 115 S.Ct. 464. For example, “a retail druggist who returns an uninspected roll of developed film to a customer ‘knowingly distributes’ a visual depiction and would be criminally liable if it were later discovered that the visual depiction contained images of children engaged in sexually explicit conduct.” Id. In this manner, the Ninth Circuit’s absurd construction of the statute in X-Citement Video is closely related to the *383absurd results, see swpra, at 130, which necessarily follow from interpreting AED-PA’s “material support” provisions without a scienter requirement. Thus, from the reasoning in X-Citement Video, see 513 U.S. at 70-77, 115 S.Ct. 464, it should have been apparent to the district court that to avoid such absurd results in the AEDPA context the jury needed to be instructed that the specific intent requirement had to be applied to each element of the statute. For the end result of applying “knowingly” as did the Ninth Circuit in Humanitarian Law Project III “is to render a substantial portion of Section 2339B unconstitutionally vague.” Al-Arian, 308 F.Supp.2d at 1338.
C.
The failure to require the jury to find what should have been the elements of the material support offense affected Ham-moud’s substantial rights. By not being instructed on a scienter requirement, the jury was not presented an essential element of the “material support” offense, and as the Third Circuit has remarked, “the omission of an essential element of an offense [in a jury instruction] ordinarily constitutes plain error” satisfying Olano. United States v. Haywood, 363 F.3d 200, 207 (3d Cir.2004) (internal quotation marks and citation omitted). The Tenth Circuit has recognized: “A plainly erroneous jury instruction affects a defendant’s ‘substantial rights’ if the instruction concerns a principal element of the defense or an element of the crime, thus suggesting that the error affected the outcome of the case.” United States v. McSwain, 197 F.3d 472, 481 (10th Cir.1999) (internal quotation marks and citation omitted); see also United States v. Perez, 43 F.3d 1131, 1139 (7th Cir.1994) (holding that erroneous jury instruction, which failed to include a “precise description of the requisite specific intent element,” was plain error affecting defendant’s substantial rights such that conviction had to be reversed); cf. United States v. Wilkinson, 137 F.3d 214, 228 (4th Cir.1998) (finding third prong of Olano satisfied where district court failed to give the jury a conclusive instruction on element of materiality). Indeed, such practice “is consistent with the Supreme Court’s instruction that due process ‘requires proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged.’ ” Haywood, 363 F.3d at 207 (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) (additional quotation marks and citation omitted). Here, the plainly erroneous jury instructions did not require the government to prove that Hammoud’s purported “material support” for Hizballah went to further the organization’s criminal conduct. As such, the convicted offense falls well short of the “personal guilt” and connection to “concededly criminal activity” which the Fifth Amendment requires. Scales, 367 U.S. at 224-25, 81 S.Ct. 1469.
D.
Turning to Olano’s requirement that the error seriously affected the fairness, integrity or public reputation of judicial proceedings, I note that when reviewing an erroneous jury instruction for plain error, “the relevant inquiry ... is whether, in light of the evidence presented at trial, the failure to instruct had a prejudicial impact on the jury’s deliberations, so that it produced a miscarriage of justice.” Haywood, 363 F.3d at 207. As the Seventh Circuit remarked in Perez, where the defendant carries his Olano burden of showing the erroneous jury instruction affected his or her substantial rights, “the gravity of such an error makes reversal the usual outcome.” 43 F.3d at 1139 (citing United States v. Kerley, 838 F.2d 932, 939 (7th Cir.1988)); see also United States v. Du*384ran, 133 F.3d 1324, 1334 (10th Cir.1998) (holding plain error in jury instruction that allowed a conviction “where one important element may not have been found against the defendant by such a standard cannot be overlooked,” and remanding for a new trial) (citation omitted). The Seventh Circuit reasoned that when a jury instruction is erroneous because it does not include the requisite specific intent requirement, “the error affects the integrity of the proceeding itself.” Perez, 43 F.3d at 1140 (citations omitted).
Applying these principles in the instant case, I would find that the error affected the fairness, reputation and integrity of the judicial proceedings, thus we should vacate Hammoud’s “material support” conviction and remand for a new trial. Had the district court judge charged the jury with the scienter requirement, it is highly unlikely that the jury could have convicted Hammoud based on the evidence offered at trial. Indeed, at the jury charge conference, the district court judge examined the language of Count 72 of the indictment, which alleged that Hammoud “used his position as a leader ... to foster support and raise funds for violent Hizballah activity,” J.A. 482 ¶ 4(a), and stated: “There was no proof he raised funds for violent Hizballah activity. I have a problem leaving that in when you don’t have any proof on that. But it’s part of the indictment. I can’t just take it out.” J.A. 3251 (emphasis added). Accordingly, it is clear that the government failed to connect Ham-moud to any terrorist activity on the part of Hizballah, rather it merely associated him with Hizballah, a foreign terrorist organization.16 This is not a case in which “overwhelming and essentially uncontro-verted” evidence exists to support the conclusion that Hammoud supported Hizbal-lah’s illegal, terrorist activities, Cotton, 535 U.S. at 633, 122 S.Ct. 1781, and in light of the lack of such evidence I would find that Hammoud suffered prejudice.
IV.
For these reasons, I would hold that the jury instruction upon which Hammoud was convicted of providing material support to Hizballah violated his Fifth Amendment rights, and Hammoud satisfied Olano’s “plain error” standard, thus entitling him to a new trial. In recommending as much, I do not seek to give comfort to terrorist organizations, or to diminish the reality of *385clear and present threats posed by such groups. To the contrary, I seek to uphold the Constitution in a manner that does not harken back to a bleaker era of American history when characters were impugned, and individuals indicted, convicted and punished based on little more than suspicion, association and fear, without the “personal guilt” which is the hallmark of our criminal justice system. In applying AEDPA’s material support provisions with the requisite scienter requirement, we may help insure that juries are not driven to findings of guilt by mere fear of the unknown, but instead arrive at the just result only after interrogation of the government’s case to determine whether criminal intent is present.
I respectfully dissent.
. The Ninth Circuit and most other courts citing the Humanitarian Law Project cases use these Roman numeral designations, referring to the original district court case, Humanitarian Law Project v. Reno, 9 F.Supp.2d 1176 (C.D.Cal.1998), as "Humanitarian Law Project I".
. It is interesting to note that during the writing of this dissent, the Ninth Circuit agreed to hear Humanitarian Law Project III en banc and has thus vacated the three-judge panel opinion. See Humanitarian Law Project v. U.S. Dep’t of Justice, 382 F.3d 1154, 2004 WL 2021563 (9th Cir. Sept. 8, 2004), 2004 U.S.App. LEXIS 18933.
. Furthermore, the Ninth Circuit has held that it may, in its "discretion, resolve a pure issue of law raised for the first time on appeal ... when 'injustice might otherwise result.’ ” Humanitarian Law Project III, 352 F.3d at 394 (quoting Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)).
. "Terrorist activity” is defined in 8 U.S.C. § 1182(a)(3)(B), and "national security” is defined in § 1189(c)(2), although those definitions are not at issue in this case.
. In Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 208 (D.C.Cir.2001), the D.C. Circuit held that these provisions violated the Fifth Amendment's due process requirement, and thus held that the entities under consideration have a due process right to "notice that the designation is pending.” However, the court also crafted an exception in instances where "notification would impinge upon the security and other foreign policy goals of the United States.” Id.
.The Patriot Act modified this definition, but that revision is not at issue here.
. Indeed, the freedom of association and vagueness arguments necessarily blend with the Fifth Amendment claim regarding the statute’s criminalization of conduct without the requisite "personal guilt." In short, the law lacks the sufficient clarity that would allow persons of "ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). However, even if an individual would reasonably understand that all support of a FTO is prohibited, when the statute is applied without a specific intent requirement, a tension arises because the statute criminalizes "support” of a FTO, though the defendant's conduct has no connection to "concededly criminal activity,” thus violating the Fifth Amendment.
. It is not necessary to discuss Hammoud's overbreadth challenge in any significant fashion because the overbreadth standard is a exceedingly narrow exception to the normal rule regarding facial challenges. See Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). As such "[e]ven where a statute at its margins infringes on protected expression, 'facial invalidation is inappropriate if the remainder of the statute ... covers a whole range of easily identifiable and constitutionally proscribable ... conduct.' " Osborne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (quoting New York v. Ferber, 458 U.S. 747, 770 n. 25, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). Here, because statutory terms such as "weapons" and “explosives” are clearly not overbroad, this substantiality showing is most difficult to overcome.
.Likewise, I do not discuss in detail the Sixth Amendment argument raised with reference to the Secretary of State's designation provisions, because it lacks merit. In short, while the fact of the Secretary’s designation is an element of the offense, the designation's validity is not. Cf. United States v. Bozarov, 974 F.2d 1037, 1045-46 (9th Cir.1992) (because Secretary's licensing designation was not an element of the criminal charge, defendant’s inability to challenge designation did not violate due process); United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir.1990) (holding under Export Administration Act, Secretary's decision to control a commodity "does not involve the defendant’s individual rights and is not an element of the charged offense”).
In United States v. Sattar, 272 F.Supp.2d 348, 367 (S.D.N.Y.2003), the court applied this reasoning to reject precisely the sort of challenge Hammoud levies, stating “[t]he correctness of the designation itself is not an element of the offense and therefore the defendants' right to due process is not violated by their inability to challenge the factual correctness of that determination.” See also Al-Arian, 308 F.Supp.2d at 1344-47 (rejecting the same). But see United States v. Rahmani, 209 F.Supp.2d 1045, 1053-58 (C.D.Cal.2002) (finding individual defendant had standing to challenge an organization's designation and that § 1189 is unconstitutional).
. Indeed, a pure First Amendment freedom of association argument may be somewhat overstated because Hammoud's prosecution did not rely on mere association to the extent at issue in the communist cases; rather, the indictment alleged that he “knowingly provide[d] ... material support or resources to Hizballah ... by causing Said Harb to transport $3,500 ... to Sheik Abbas Harake.” J.A. 498. Nonetheless, as discussed below, the statute does not avoid the "personal guilt” infirmity.
. Relatedly, in defending the statute from First Amendment attack, the government asserts that AEDPA need only satisfy the intermediate scrutiny standard of United States v. O'Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See Humanitarian Law Project II, 205 F.3d at 1135 (holding that the material support restriction did not warrant strict scrutiny "because it is not aimed at interfering with the expressive component of their conduct but at stopping aid to terrorist groups”). Under O’Brien, the court must determine whether: (1) the regulation is within the government’s power; (2) it supports an important or substantial government interest; (3) the regulation is unrelated to the suppression of speech; and (4) the restriction on speech is no greater than necessary. 391 U.S. at 377, 88 S.Ct. 1673. While, assuming arguendo that intermediate scrutiny applies and AEDPA satisfies the first three standards as the regulation is within the war and foreign policy powers, serves an important interest in preventing terrorism, is arguably related to suppressing certain conduct, not speech, *376the emphasis of our inquiry falls on whether AEDPA is sufficiently well tailored to meet these end goals. I suggest that it is not because the "material support” provision’s vast sweep leads to a Fifth Amendment violation. Because I believe such a result follows under O’Brien, I do not examine a strict scrutiny challenge to the statute. I note, however, that the Amici make, at least, a colorable argument that strict scrutiny applies. See Br. of Amici Curiae at 11 n.2 (arguing AEDPA’s material support statute "does not impose a content-neutral ban on conduct ... but instead punishes particular support only when done in association with specific disfavored political groups .... The 'material support' statute's prohibition on designated groups is analogous to a campaign finance law that restricted contributions only to particular political parties selected by the incumbent government.”); see also Al-Arian, 308 F.Supp.2d at 1334-35 (recognizing that level of scrutiny applied would depend on how broadly the court interpreted AEDPA; "[t]he broader this Court interprets [the statute], the more likely that the statutef] receivefs] a higher standard of review and [is] unconstitutional”).
. Similarly, Amici Curiae properly recognize that the jury was not instructed that it had to find Hammoud intended the donation to be used for any violent, terrorist, or otherwise unlawful purpose, thus setting up the anomalous result that under § 2339B "Hammoud would be guilty even if it were stipulated that his support was intended to further only Hiz-*379ballah’s lawful activities ... [while] an individual who gave a donation to a non-designated group intending that it be used for terrorist activity would not be guilty.” Br. of Amici Curiae at 6.
. Even Humanitarian II seemed to acknowledge that the term "knowingly” did not cure any vagueness problems that existed. See 205 F.3d at 1138 n. 5 (”[T]he term 'knowingly' modifies the verb 'provides' meaning that the only scienter requirement here is that the accused violator have knowledge of the fact that he has provided something, not knowledge of the fact that what is provided in fact constitutes material support.”).
. Additionally, I note that even without the scienter requirement which I advocate, various courts have struck aspects of the "material support” provisions as void for vagueness. See Humanitarian II, 205 F.3d at 1137 (holding that term "personnel” is void for vagueness as the law is not "sufficiently clear so as to allow persons of 'ordinary intelligence’ a reasonable opportunity to know what is prohibited”) (internal quotation marks omitted) (citing Grayned, 408 U.S. at 108, 92 S.Ct. 2294); id. at 1138 (holding the term "training” is also void for vagueness, and stating "a plaintiff who wishes to instruct members of a designated group on how to petition the United States” for assistance could violate AED-PA); Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d 1185, 1199 (C.D.Cal.2004) (holding "expert advice or assistance” is im-permissibly vague); Sattar, 272 F.Supp.2d at 361 (holding “personnel” and provision of "communications equipment” were imper-missibly vague); see also Humanitarian III, 352 F.3d at 403 (reiterating Humanitarian II holding that terms "personnel” and "training” were impermissibly vague). But cf. Lindh, 212 F.Supp.2d at 572-73 (holding term "personnel” was not overbroad).
. Finally, the Al-Arian court remarked that the government's scienter burden is not “that great in the typical case.” 308 F.Supp.2d at 1339. It suggested that the intent can often be easily inferred by juries, e.g., "a jury could infer a specific intent to further the illegal activities of a FTO when a defendant knowingly provides weapons, explosives, or lethal substances to an organization that he knows is a FTO because of the nature of the support.” Id. More germane to the instant case, Al-Arian also suggested that “a jury could infer a specific intent when a defendant knows that the organization continues to commit illegal acts and the defendant provides funds to that organization knowing that money is fungible and, once received, the donee can use the funds for any purpose it chooses.” Id.
. It is further worth noting that not only did the government fail to connect Hammoud's purported $3,500 donation to Sheik Abbas Harake to any illegal purpose, or concededly criminal act, but the government could barely connect the funds to Harake to any degree whatsoever. The government admits that the only source of information indicating that Hammoud was sending money to Hizballah was Said Harb. Harb was described throughout the trial as untrustworthy, manipulative, a liar and an exaggerator. See, e.g., J.A. 1412, 1408, 2215, 2504. With reference to the alleged $3,500 in "material support” provided to Hizballah, Harb testified that he had once carried money to Harake for Hammoud. Id. at 2763. He testified that the money he carried was in an envelope which Hammoud said had two checks totaling $3,500. Id. at 2761-64. Harb testified that he spoke with Harake by telephone while in Lebanon, but never met with him and did not deliver money to him. J.A. 2764-66. Instead, Harb stated he "g[a]ve it [the envelope] to my mom and, you know, told her to make sure it gets to [Hammoud’s] mom.” Id. at 2765. Ostensibly, under the government's theory, Ham-moud's mother gave the money to Harake, although I have found no testimony in the record completing this chain that allegedly stretched from Hammoud to Harake. Indeed, Harb never explained how the money got to Harake, nor did he state that he even spoke with Hammoud's mother to make sure she received the envelope, let alone spoke to Harake to assure that he received the envelope from Hammoud's mother. Despite these facts, the $3,500 transfer was the sole transaction offered by the government in support of Count 78 against Hammoud.