Material Damage - The Ninth Circuit eviscerates a critical antiterror law.

One of the most important judicial tribunals in America, and one whose handiwork has come to be reversed with numbing regularity by the U.S. Supreme Court, has once again dealt a body blow to government's vital efforts to combat terrorism.

The case, decided December 3, is Humanitarian Law Project v. United States Department of Justice. In it, the U.S. Court of Appeals for the Ninth Circuit confronted, for the second time in the litigation, a Clinton-era anti-terrorism law (18 U.S.C. § 2339B) enacted in 1996 — after militant Islamic extremists strung together the deadly 1993 World Trade Center bombing, a second plot later that year to bomb New York City landmarks, and a 1995 conspiracy to blow American airliners out of the sky. The statute makes it a crime to provide material support to entities the U.S. secretary of state, by a complex regulatory process, has designated "foreign terrorist organizations" (FTOs). The Ninth Circuit ruled that, to obtain convictions under the material-support provision, the prosecution must prove beyond a reasonable doubt that a defendant specifically knew either that the FTO had been designated as such, or the particular facts that led to the secretary's designation. The decision will make it far more difficult to bring to justice those who knowingly contribute money and other resources to terrorists.

The Ninth Circuit covers California and several other western states, and thus holds sway over the largest jurisdiction of any U.S. court of appeals. Its decisions, moreover, reverberate far beyond its vast territory. Indeed, an earlier decision by the Ninth Circuit in this very same case has already wreaked havoc in an important material-support prosecution in New York. The defendant is the attorney accused of making it possible for the notorious, blind Sheik Omar Abdel Rahman (the force behind some of the murderous schemes described above) to direct the activities of his terrorist organization from the jail cell where he is serving a life sentence.

To secure a criminal conviction in most any case, a prosecutor must establish that the defendant had the necessary mens rea, or culpable intent. The idea, of course, is to protect those who perform bad acts out of ignorance. Ordinarily, this means the government must establish that a defendant was generally aware of unlawful nature of his actions. But the government is virtually never required to establish a defendant's actual, personal knowledge of what are often referred to as mere "jurisdictional facts" — the technical matters that provide a proper basis for the federal government (as opposed to a state or municipality) to take action.

In a bank-robbery case, for example, the government needs to prove the defendant intended to rob the bank. But, although it must in addition be proved that the bank's deposits were insured by the Federal Deposit Insurance Company, the prosecutor is not required to establish the defendant's personal knowledge of this arcane fact. Neither is it necessary to prove, say, that a defendant who intentionally assaulted someone was aware that his victim happened to be a federal officer — the jurisdictional predicate that makes such an attack a federal case. Such matters of mere status pervade the federal criminal law: Was the narcotic the defendant sold a formally designated controlled substance? Was the stolen property in interstate commerce? Did the bribed public official work for a municipality that received at least $5,000 in federal funds? And ad infinitum. Were it necessary for the government to prove a defendant actually knew such minutia, it would be nigh impossible to prosecute anyone.

Humanitarian Law involves would-be financial supporters of the Liberation Tigers of Tamil Eelam (LTTE) and the Kurdistan Workers Party (Partiya Karkeran Kurdistan, or PKK), two formally designated FTOs whose richly deserved reputations for terrorist brutality are well known. Indeed, even the Ninth Circuit grudgingly acknowledged as much: "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." Thus, applying the usual mens rea principle to this case, the Ninth Circuit could comfortably have construed the material-support statute simply to require evidence that the defendant was generally aware of LTTE's, or PKK's, terrorist propensities. But it could not mandate proof that the defendant had actual knowledge of the technical designation, or of the peculiar facts relied on in the regulatory process that led to that designation. Notwithstanding the patently high stakes posed by terrorism — stakes that, far from being hypothetical, have taken their toll in the blood of thousands of innocents — the Ninth Circuit instead chose to impose the extraordinary proof hurdle of actual, specific knowledge of these legalisms.

This will make securing convictions far more difficult. It may be fair to assume that most people know al Qaeda, Hamas, and Hezbollah are terrorist organizations, but how much of the population actually knows they have been technically designated as such by the American secretary of state? (No cackling, please, from those who wonder how many among the likely contributors to foreign terrorist organizations even know there is a secretary of state.) And what of less well known, but equally dangerous, FTOs such as Palestinian/Jordanian al-Tawid or Indonesian Jemaah Islamiah? Even among those who have heard of these organizations and know of their ruthless reputations, it will be difficult to prove that a contributor actually knew about their designation as FTOs, much less about the particular findings that led to such a designation in the regulatory process.

It is especially disturbing to note that, in arriving at its conclusion, the Ninth Circuit placed great emphasis on the fact that LTTE and PKK feature components ostensibly dedicated to political advocacy and humanitarian aid rather than terrorism. From this premise, the court reasoned that a daunting actual-knowledge hurdle was essential to prevent an innocent person from running afoul of the law when all he really intended was to make a political or charitable contribution.

Of course, a standard requirement that the government merely prove the defendant acted with general awareness — here, general knowledge that the organizations participated in terrorism — would have protected the truly innocent. In an analogous context, New Yorkers uniformly understand that the Gambino family's stock in trade is murder and mayhem, even though John Gotti gave to charities and threw a very nice fireworks party every Fourth of July. Only in the Ninth Circuit's California dreamin' do people in the real world not know the score when they cross paths with criminal enterprises — and now, when they pony up for FTOs.

More to the point, experience shows that virtually every terrorist organization purports to engage in legitimate political and charitable activity — and those scant few that don't certainly will now. As all contributors well know, dollars, and many other resources, are fungible. When they are given to organizations that practice terrorism, they tend to wind up in the hands of the murderers, no matter how high-minded the stated purpose of their contribution.

The results of the decision could be dramatic. A person who plainly knew Hezbollah was a violent organization, but did not know about the designation or the specific facts behind, and who claimed to be contributing to Hezbollah's humanitarian work, may well now be beyond the reach of the statute. Similarly, if an FTO was designated in 2001, and a contributor could be proved to know about specific terrorist acts it committed after the designation, but not about the designation itself or the prior history that led to it, he too would be immune under the Ninth Circuit's interpretation.

Finally, it bears recalling that this is the second time, during the same litigation, that the Ninth Circuit has eviscerated important sections of this material-support statute. Earlier, in Humanitarian Law Project v. Reno, the Court held that the sections of the law prohibiting the provision of "personnel" and "training" to FTOs were unconstitutionally vague, and therefore could not be the basis for a criminal conviction.

To appreciate the actual and potential ramifications of these Ninth Circuit decisions, one need only glance 3,000 miles to the east, where that tribunal's precedent is not binding, but where a New York federal district judge nevertheless found the first Humanitarian Law decision a good enough reason to throw out the original material support charge against Lynne Stewart, the attorney for the aforementioned blind sheik. After all, with such elusive terms as "personnel" and "training" that most pre-teenagers manage to grasp, how in the Humanitarian Law-world could a trained lawyer be expected to know it was wrong to help someone she knew intimately to be one of the world's foremost terrorists?

Congress is currently considering the material-support statute and ultimately is likely to amend it. Thus, it is difficult to assess how enduring the perilous impact of these decisions will be. Until new law is enacted, however, the material-support law, until now an incalculably valuable tool in law enforcement's struggle against terrorism, is gravely wounded.

That right and wrong shall be subject to the arbitary whims of "the politics of the moment," are essentially the problem that President Bush has encouraged at times and ignored at other times, by his lack of knowledge about our Constitution, in particular, its foundations, which he believes are passe, now to be subject to whatever judges say.

The basic concept of law, that it is fixed, escapes him.

He would have his family follow his last will and testament, and woe be the family members who challenge that document --- "incontestable."

Yet he would defy that basis, that law is what it is until it is amended lawfully as proscribed, when it comes to our Constitution.

President Bush is entirely satisfied with leaving law and our Constitution subject to the lawyers.

You, on the other hand, have the right to vote.

You are supposed to rely upon your human spirit to overcome what transgressions upon that spirit, may come of finding "wiggle room" and playing Scrabble with our Constitution, that are his, in effect, nature, by way of his temerity in the face of his forever negotiating away what is not his to do so, yet he does, in order to "compromise" in a "bipartisan manner."

In the end, a 3/4ths majority of the State's Legislatures sitting in Constitutional Convention say what the Constitution is and means, based upon the input of the people through the democratic-republican process.

Opposed to that sovereignty of the people, are "the experts," so-called "legal" and otherwise (meaning, usually strongly oriented toward absolutism in the form of a police state).

George's biggest weakness is his refusal to read up on the history of our country and how much it takes to build the foundations UPON WHICH our liberties and prosperity can and may flourish.

I'm not savvy to the principles applied in the courts of common law, although here they seem to be lacking, based not on rules established by government but motivated by political affiliation and desire.

In the event of another attack on the U.S., considering Bush's non-aggressive approach with 9/11 (no real hardware or real bombs), as well as the total complacency demonstrated by the left, who would have any doubt such rulings would be swiftly overturned let alone Bush's reelection secured?

"Such matters of mere status pervade the federal criminal law: Was the narcotic the defendant sold a formally designated controlled substance? Was the stolen property in interstate commerce? Did the bribed public official work for a municipality that received at least $5,000 in federal funds? And ad infinitum. Were it necessary for the government to prove a defendant actually knew such minutia, it would be nigh impossible to prosecute anyone."

So it is true.

In 1998 a federal district attorney visisted my sons high school for a presentation on "career day."

I will never forget that day when my son came home from high school and told me that the federal district attorney had told him and his classmates that if they are ever charged with a federal crime, do not enter a plea of guilt or innocence but ask the judge to have the federal district attorney prove federal jurisdiction of the charges before moving forward with the case.

The federal district attorney told them that more than likely the charges will be dropped because there will be no federal jurisdiction or it will be too difficult to prove.

Of course the best part of my sons comments about this federal district attorney's remarks was when my son said, "just like you had been telling us, dad."

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