MAKE A LIST BUT CHECK IT TWICE:
Prosecuting Suspected Supporters Of Terrorist Groups

Imagine that you support a political cause: let's say, independence for Northern Ireland, or democracy in Iran, or autonomy for the Uighur minority in China, or a separate state for Palestinians. Now imagine that you send money to a group that works to further this cause.

Now imagine that the State Department believes that the group that you have funded is engaged in terrorism. Imagine that you are criminally prosecuted for having provided material support to that group, and face a punishment of up to ten years in prison.

But imagine, in addition, that you know the group you support does not engage in terrorism. In fact, at your criminal trial, you can prove it. (You suspect, actually, that the State Department's decision to designate your group was overly influenced by political factors; your group has powerful enemies.)

Whoops: I let my imagination run away with me. According to the relevant legal provisions, if you are prosecuted for funding a group that the State Department has classified as terrorist, you are barred from challenging the designation in court. So imagine that you are in prison.

Recent Efforts to Name Terrorist Groups and Prosecute Terrorist Group Funders

It is indisputable that stopping the flow of funds to terrorist networks is a critically important element of the counter-terrorism effort. But it should also be clear that the effort to identify and block terrorist funding sources must be conducted fairly and rationally. It would be unjust, not to mention ineffective, to prosecute people suspected of funding terrorist groups without ascertaining, via basic due process guarantees, that the designated groups were in fact engaged in terrorism.

Unfortunately, as developments last week highlight, it takes little imagination to conjure up the scenario described above. While the government continues to name additional groups to its official list of foreign terrorist organizations - sometimes in contexts that suggest the influence of political factors - it is also showing an increased willingness to prosecute American citizens and foreigners alike for funding such groups. Neither the naming nor the criminal prosecutions are done in manner respectful of due process.

Early last week, the State Department announced that it had placed a little-known Muslim group that seeks independence for the Xinjiang region of China on the list of terrorist organizations. The East Turkestan Islamic Movement was the fifth group named to the list so far this year.

Anonymous government officials quoted in the press stated that the Ujaama indictment was a harbinger of many future indictments under the material support law. Claiming that "America has been a piggy bank for certain terror organizations to the tune of tens of millions of dollars," officials have been building criminal cases against substantial numbers of people suspected of funding terrorist groups.

"Unique" Qualities of the Material Support Provision

The criminal law prohibition on knowingly providing material support to foreign terrorist organizations was passed as part of the Antiterrorism and Effective Death Penalty Act of 1996. The law specifies that the term "foreign terrorist organization" refers to groups designated as terrorist under the process outlined in a federal statute.

The statute, also included in the 1996 law, empowers the Secretary of State to designate certain groups as terrorist if they meet the following criteria: they are foreign; they engage in terrorist activity, and their activities threaten the security of U.S. nationals or the national security of the United States. (I discussed the scope of these criteria in a previous column, noting that they are much broader that a superficial reading of the law would suggest.)

It is important to note that even before this law was passed, it was a federal crime to provide material support to foreign terrorists. The respect in which the law was changed was in allowing entire groups to be designated as terrorist, facilitating the prosecution of people who fund such groups.

As the D.C. Circuit has observed in cases challenging designations made under the law, the terrorist group designation law is "unique," both procedurally and substantively. One of its unique features is, again according to the D.C. Circuit, "the dearth of procedural participation and protection afforded the designated entity."

Notably, under to the law's procedural provisions, the organization that is classified as terrorist is not notified prior to the designation. Instead, in making a designation, the Secretary of State must notify certain high-ranking members of Congress of his intent to designate a foreign terrorist organization, together with findings and a factual basis to support the designation. Seven days after these members of Congress are notified, the designation takes effect.

Once the designation becomes effective, a defendant being prosecuted for funding a designated group is barred from raising questions as to the validity of the designation as a defense or an objection at any trial or hearing.

Cases Involving the Material Support Law and the Designation Process

But earlier challenges to the designation process have highlighted some of the problems inherent in the law. In National Council of Resistance of Iran v. Department of State, a case decided in 2001, the D.C. Circuit found that an Iranian exile group designated under the law had been denied its Fifth Amendment due process rights in the designation process. (The case involved a Fifth Amendment property interest, since, besides subjecting funders of a terrorist group to criminal prosecution, the designation also allows the government to freeze the group's bank accounts and other assets.)

Even though the law contains a provision allowing designated groups to challenge their designation in court after the fact, any review of the designation is supposed to be based solely upon the administrative record compiled by the government (a record that may include classified information not subject to disclosure). In the National Council case, the court ruled that the government must improve the designation process by giving the group under consideration notice that the designation is pending, and an opportunity to present evidence rebutting the designation.

More recently, in the 2002 case of United States v. Rahmani, involving alleged material support to a designated terrorist group, a California district court issued a ruling directly contrary to that of the district court hearing the Hammoud case. Finding that the organization that the defendants were alleged to have funded was designated as a terrorist group in violation of due process, the district court dismissed the indictment against the defendants. The prosecution, involving Iranian exiles, was dismissed last June on the same day that the Hammoud conviction was handed down.

Arbitrary Convictions

Because review of any designation is so dramatically limited under the terms of the terrorist group designation provision, the State Department's designation power has an obvious potential for arbitrary use. Moreover, given the broad scope of the applicable definitions, as well and the inherent difficulties in distinguishing "terrorist" organizations from groups with less objectionable political goals, the designation process is extremely vulnerable to political manipulation.

Indeed, some commentators have suggested that the government's recent designation of the Muslim separatist group in Xinjiang was more aimed at placating the Chinese government than at fighting terrorism. Similar objections were made in 1997, when the State Department named an Iranian exile group to the terrorist list. (Notably, a day after the announcement, the Los Angeles Times reported that a "senior Clinton administration official said inclusion of the [Iranian group] was intended as a goodwill gesture to Tehran and its newly elected moderate president, Mohammad Khatami.")

The due process shortcomings of the designation process are worrisome enough when money and other assets are at stake. When people are facing prison terms of up to ten years, however, these shortcomings merit the most serious attention.

The needed improvements would in no way hinder the government's counter-terrorism efforts. All the due process in the world would not, and undoubtedly should not, prevent the government from classifying al Qaeda as a terrorist organization. But because not all terrorist classifications are so obvious and so well merited, fundamental due process protections are needed.