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Judge: No 'Guilt by Association' for Aiding 'Terrorists'

by Michelle Chen

Nov. 30, 2006 – A federal court in Los Angeles has handed a partial victory to humanitarian groups seeking to help organizations the government has labeled "terrorists."

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The decision curtails the scope of a presidential order cracking down on US citizens and groups that sponsor, assist or are "otherwise associated with" terrorist organizations, as defined by the federal government. President Bush’s executive order and related regulations established broad criteria for labeling groups and individuals "Specially Designated Global Terrorists," and restricted US-based groups from providing practically any form of assistance to them.

The ruling does not radically change the administration’s policy. But it does curb the president’s ability to designate supposed terrorists, and protects the plaintiffs from being labeled terrorists for providing basic humanitarian aid. It upholds, however, the US Treasury Department’s general authority to administer a list of global terrorists and block humanitarian services to them.

In their lawsuit, international aid groups argued that the White House’s order was vague in its definition of "support" to terrorists. The plaintiffs said the strictures amounted to "guilt by association." It set the stage, they said, for the government to prosecute people for humanitarian activities wholly unrelated to terrorism.

One of the lead plaintiffs, the Los Angeles-based Humanitarian Law Project, wants to provide the Kurdistan Workers Party training in human-rights law and peacemaking negotiations to help protect Turkey’s Kurdish minority from persecution. The Workers Party, however, is designated as a "global terrorist" by the US government.

Government attorneys argued that even if a group’s assistance was clearly limited to humanitarian actions, it could still indirectly abet terrorist activity.

The plaintiffs also included US citizens assisting the Liberation Tigers of Tamil Elam, the organization leading a self-determination movement for the Tamil people in Sri Lanka. The White House directive, attorneys for the plaintiffs argued, could criminalize legal, medical and other aid workers wanting to assist the Tigers in brokering peace agreements and rebuilding communities damaged by the December 2004 tsunami.

"The law really has to be very clear about what’s banned and what isn’t," said Shayana Kadidal, an attorney with the Center for Constitutional Rights (CCR), the advocacy group that litigated the suit. Otherwise, he told The NewStandard, due to fear of government scrutiny or criminal penalties, "people are going to refrain from speaking or carrying out other First Amendment activities, like association."

The executive order, enacted after the September 11, 2001 terrorist attacks, draws on the 1977 International Emergency Economic Powers Act, which empowers the president to bar certain types of foreign assistance in response to a national-security emergency. The executive order authorized administration officials to designate groups and individuals as "Specially Designated Global Terrorists" and limit assistance to them.

The US Treasury Department has blocked more than 370 entities in this category – including organizations in Colombia, Indonesia, Jordan and the Netherlands – from receiving aid.

Government attorneys argued that even assistance that is clearly limited to humanitarian actions could still indirectly abet terrorist activity. It could do so, they argued, "by allowing terrorists to gain good will that could be used for terrorist recruitment or other assistance, or to gain political legitimacy for those who carry out deadly terrorist acts… regardless of the donor’s intent."

But in a 45-page opinion filed on November 27, Judge Audrey Collins ruled that under the executive order, the restrictions on inter-group affiliations, as well as the president’s power to label groups as global terrorists, are "unconstitutionally vague." However, the court upheld the Treasury Department's ability to apply the terrorist label under the order.

The court also said that labeling groups as terrorists just for being "associated with" designated terrorist entities too broadly "punishes mere association" with blacklisted groups.

The ruling builds on a 2004 case in which the Humanitarian Law Project and other groups successfully challenged the USA PATRIOT Act’s sweeping ban on "material support" to terrorists. Citing the potential to apply the label to non-violent humanitarian work, the same judge struck down the "material support" designation as overly vague.

In both rulings, however, the court limited its opinion to the specific cases presented by the plaintiffs, rather than invalidating the law on a national level. Through further appeals, Kadidal said, the plaintiffs hope to challenge the portions of the law that Judge Collins left in place. CCR aims to persuade the courts to construe the law narrowly, to prevent the government from barring aid activities unless the assistance is specifically intended to advance terrorist operations.

Kadidal said that the latest decision reveals the government’s willingness to undermine civil rights and international humanitarian collaboration merely to sweep more people under the stigma of terrorism. "The fact that these charges are inherently vague and open-ended, and essentially just punish association," he said, "makes them a really dangerous tool in the hands of the executive."

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The NewStandard ceased publishing on April 27, 2007.

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Michelle Chen is a staff journalist.

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