Humanitarian Law Project v. United States Department of Justice

Opinion by Judge Pregerson; Dissent by Judge Rawlinson

OPINION

In 1996, President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Two provisions of AEDPA, section 302 and section 303, codified at 8 U.S.C. § 1189 and 18 U.S.C. § 2339B, authorize the Secretary of State (“Secretary”) to designate an organization as a “foreign terrorist organization,” and make it a crime with a maximum *385 penalty of life in prison for a person to provide “material support or resources” [hereinafter “material support”] to a designated organization, respectively. This case addresses the question whether a criminal prosecution under 18 U.S.C. § 2339B requires the government to prove as an element of the offense that the defendant knew the organization had been designated by the Secretary as a foreign terrorist organization, or at least knew of the organization’s unlawful activities leading to its designation.

Plaintiffs are legal and social service organizations and two individuals who seek to provide “material support” to the nonviolent humanitarian and political activities of Kurdish and Tamil organizations the Secretary designated as “foreign terrorist…

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.…