Judge Strikes Down Parts of 1996 Terrorism Law

Courts: Federal jurist rules portions of the law are unconstitutional. Decision could affect pending legislation.


October 5 2001

A Los Angeles federal judge has ruled that portions of the 1996 federal anti-terrorism law are unconstitutional--a ruling with potential ramifications for new legislation introduced after the Sept. 11 terrorist attacks.

In a decision made public Thursday, U.S. District Judge Audrey B. Collins said that the 1996 law's prohibition against providing "training" and "personnel" to groups designated as "foreign terrorist organizations" by the U.S. State Department are too vague to be constitutionally acceptable.

Collins' decision marks the second time she has struck down parts of the 1996 law, enacted the year after Timothy J. McVeigh bombed the Oklahoma City federal building, killing 166 people. The law permits the secretary of State, in consultation with the attorney general and the secretary of the Treasury, to designate a group as a foreign terrorist organization if, among other things, the terrorist activity "threatens the security of United States nationals or the national security of the U.S."

The statute defines "terrorist activity" as "an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time."

The judge's latest decision was praised by a lawyer who represented the plaintiffs challenging the law.

"This case stands for the proposition that the government cannot broadly ban all support to 'terrorist organizations,' and that constitutional restrictions do apply even in the war against terrorism," said Georgetown University law professor David Cole.

Cole said the immigration provisions of legislation proposed by Atty. Gen. John Ashcroft, now under consideration in Congress, "would, among other things, make aliens deportable for providing 'training' to terrorist organizations. That aspect of the bill, at least, would be unconstitutional under this ruling."

The Justice Department had no immediate comment on the ruling.

In 1997, Secretary of State Madeline K. Albright designated 30 groups as terrorist organizations, including the Kurdistan Workers Party (PKK), which opposes the Turkish government, and the Liberation Tigers of Tamil Eelam (LTTE), which opposes the Sri Lankan government.

In 1998, the anti-terror law was challenged in U.S. District Court in Los Angeles by several individuals and groups, including the Los Angeles-based Humanitarian Law Project--which works with dissident groups, including the PKK, in several countries--and the World Tamil Coordinating Committee, which works with the LTTE.

That same year, Collins upheld much of the law, including its ban on raising funds for terrorist groups.

However, Collins agreed with the contentions of plaintiffs, including that a section of the law that makes it criminal to provide "training" or "personnel" to terrorist groups was impermissibly vague.

The U.S. 9th Circuit Court of Appeals upheld her rulings last year, saying that the terms were not "sufficiently clear as to allow persons of ordinary intelligence a reasonable opportunity to know what was prohibited."

Last June, the Justice Department modified portions of the manual for U.S. attorneys' offices to narrowly define "personnel" and "training." The manual now defines "personnel" as individuals who "work under the foreign entity's direction or control." It defines "training" as "knowingly provid[ing] instruction to the organization designed to impart one or more specific skills." Justice Department attorneys then asked Collins to reverse her earlier decision.

But Collins, in her decision released Thursday, said the new definitions "do not change the language of the statute," and the guidelines do not bar any prosecutions.

"By its own terms, the [U.S. attorneys' manual] is nonbinding, unenforceable and can be amended at any time," Collins wrote. "Because any individual United States attorney could choose to define 'training' and 'personnel' more broadly and because the Department of Justice could amend the definitions in the [manual] at any time, the current version of the [manual] does not eliminate the threat of prosecution," Collins added.

Cole said the term "training" was too vague because it could be construed to mean any kind of training.

"Our clients wanted to do training in human rights advocacy, not training in how to use explosives," Cole said.

Ralph Fertig, a retired administrative law judge with the Equal Employment Opportunity Commission in Los Angeles, said Collins' ruling was a relief. Fertig is one of the plaintiffs and has been working with the Humanitarian Law Project on behalf of Kurds living in Turkey since 1991.

Collins stated in her ruling that Fertig and others have conducted fact-finding investigations in Turkey and assert that the Turkish government has committed extensive human rights violations against the Kurds.

"Applying international law principles, they have concluded that the PKK is a party to an armed conflict governed by the Geneva Conventions and Protocols and, therefore, is not a terrorist organization under international law," Collins wrote.

Fertig said he felt that the decision would permit the group to continue to aid the PKK in lobbying members of Congress and the United Nations about conditions in Turkey.

"The PKK has done some things with which we take great exception, but we think they are a liberation force, not a terrorist group," Fertig said. "We would not be working with them if we thought they were a terrorist group."

In June 1999, Kurdish rebel leader Abdullah Ocalan, leader of the PKK, was convicted of treason in Turkey and sentenced to death. The verdict is being appealed.

Representatives of the Tamil groups could not be reached for comment.

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See also HLP President Ralph Fertig on the Antiterrorism and Effective Death Penalty Act of 1996