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Federal Court Strikes Down Part of the "USA PATRIOT Act"

Note: The case described here has been pending in the federal courts for more than a decade. The January 2004 decision of the federal district court (described below), striking down portions of the U.S. the anti-terrorism law on grounds of vagueness, was affirmed by the Ninth Circuit Court of Appeals. Congress then amended the law in an attempt to provide more specificity to its vague terms, but in 2007, the Ninth Circuit once again affirmed the district court's view that portions of the law making it a crime to provide "material support or resources" to a listed organization are unconstitutionally vague. On September 30, 2009, the Supreme Court granted the government's petition for review.*

(January 27, 2004) - A federal district court in California has struck down a portion of the "USA PATRIOT Act" that makes it a crime to provide "expert advice or assistance" to organizations that the Secretary of State has designated as "terrorist." Judge Audrey Collins ruled that the term "expert advice or assistance" is so vague that it could easily include "unequivocally pure speech and advocacy protected by the First Amendment."1

The plaintiffs in the case, Humanitarian Law Project v. Ashcroft, include organizations and individuals who have in the past given the Kurdistan Workers' Party and the Liberation Tigers of Tamil (the "Tamil Tigers") medical and humanitarian aid, including help in petitioning Congress to support Kurdish human rights and to encourage negotiations with the Turkish government. The Secretary of State has listed both the Kurdistan Workers' Party and the Tamil Tigers as "foreign terrorist organizations," in a procedure that gave no advance notice, and very limited ability to contest the designation.2

The "expert advice or assistance" provision of the PATRIOT Act was actually an addition to a 1996 law, the "Antiterrorism and Effective Death Penalty Act," or "AEDPA." AEDPA established an adminstrative procedure for designating terrorist organizations, and stiff penalties for providing them with "material support." It included "training" and "personnel" within the definition of "material support," but both of those provisions were held to be unconstitutionally vague and overbroad in an earlier stage of the Humanitarian Law Project case.3

In that same case, though, the courts found that the abbreviated and largely secret procedure for designating terrorist organizations does not deprive either the organizations or those who might want to assist them of due process. The term "terrorist activity," as used in the law, includes, among other things, any unlawful use of, or threat to use, a weapon "(other than for mere personal monetary gain) with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property."4

The most recent decision in this ongoing case is a good reminder of the importance of the courts in setting some limits on government action at a time when the public's justified fear of terrorism has been used to compromise civil liberties in ways that often do not really improve our security or safety. Human rights advocacy and other "expert advice or assistance" on behalf of organizations that may be involved in violent struggles abroad can often ameliorate, rather than exacerbate, the global problems that lead to terrorism.

See The Impact of the USA PATRIOT Act: An Update, for more on the free-speech implications of "anti-terrorism" law.


* Humanitarian Law Project v. Mukasey, 552 F.3d 916 (9th Cir. 2007), cert. granted, Sept. 30, 2009 (S. Ct. No. 08-1498), oral argument scheduled for Feb. 23, 2010. The parts of the "material support or resources" ban that the Ninth Circuit found unconstitutionally vague are "training," "other specialized knowledge" (a subpart of the "expert advice or assistance" prohibition), and "service." For all of the briefs filed in the Supreme Court, go to

1. Humanitarian Law Project v. Ashcroft, No. CV 03-6107 (C.D. Cal. Jan. 22, 2004), slip opinion at 29.

2. The procedure is set out in sections 302 and 303 of the "Antiterrorism and Effective Death Penalty Act," 8 U.S. Code 1189, 2339B. It was upheld in Humanitarian Law Project v. Reno, 9 F. Supp.2d 1176 (C.D. Cal. 1998), affirmed, 205 F.3d 1130 (9th Cir. 2000).

3. Humanitarian Law Project v. Reno, 9 F. Supp.2d 1176 (C.D. Cal. 1998), affirmed, 205 F.3d 1130 (9th Cir. 2000).

4. 8 U.S. Code 1182(a)(3)(B)(iii)(V).


The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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