ACSBlog: The Blog of the American Constitution Society

Roya Rahmani, among others, were convicted of providing "material support" to the Mujahedin-e Khalq (MEK), and organization designated as a "terrorist organization" by the federal government.  Rahmani is now asking the Supreme Court to allow him to challenge the MEK's designation as a terrorist organization, and through a potentially successful challenge attack his own conviction.

Under federal anti-terror law, a designated terrorist organization may challenge this designation, but only in the D.C. Circuit.  Rahmani, however, was prosecuted in the Ninth Circuit, which has no jurisdiction under federal law to hear challenges to the MEK's designation.  Adding another degree of complexity to the case is a 1999 decision of the D.C. Circuit which held that MEK was improperly denied Due Process when it was designated a terrorist organization.  In other words, Rahmani was prosecuted in the Ninth Circuit for contributing to a "terrorist organization," but the D.C. Circuit held in another proceeding that when the government designated MEK a terrorist organization, it did so unconstitutionally.

Nevertheless, the Ninth Circuit held that, even if the D.C. Circuit did declare MEK's designation unconstitutional, this decision does not save Rahmani from conviction.  According to the Ninth Circuit opinion, the D.C. Circuit did not vacate the designation of MEK as a terrorist organization, it merely required the government to afford a proper hearing to MEK.  Without a decision vacating the designation, the Ninth Circuit said that people who contribute to MEK could still be prosecuted.

Yet another degree of complexity is added by the First Amendment.  The Ninth Circuit held that donations to MEK are not "speech," even if the donations were made to support MEK's political goals.  Not all the judges on the court agree with this holding, however, in a dissent from denial of en banc review, Judge Alex Kozinski asserts that Rahmani's First Amendment rights were violated:

It goes without saying that the United States government may prohibit donations to terrorist organizations.... [M]oney is fungible; if an organization engages in terrorism, it can channel money donated to it for humanitarian and advocacy purposes to promote its grisly agenda. At the same time, however, giving money to a political organization that is not engaged in terrorist activities is constitutionally protected. The determination of whether or not an organization is engaged in terrorism is therefore crucial, because it distinguishes activities that can be criminalized from those that are protected by the First Amendment.

This case concerns the manner in which this distinction is drawn. Because designating an organization as terrorist cuts off the First Amendment rights of individuals wishing to donate to that organization, the designation must meet certain constitutional standards. The Supreme Court has twice spoken to the question of how the government may go about turning what would otherwise be protected First Amendment speech into criminal conduct, the first time in Freedman v. Maryland, 380 U.S. 51 (1965), and the second time in McKinney v. Alabama, 424 U.S. 669 (1976). In both cases, the Court laid out strict rules that the government must follow, yet the designation in this case complies neither with Freedman nor with McKinney.

The net result is that Rahmani is being criminally prosecuted, and almost certainly will be convicted, for contributing to an organization that has been designated as terrorist with none of the protections that are constitutionally required for such a designation. Worse, Rahmani will in all likelihood spend many years in prison for contributing to an organization whose designation the D.C. Circuit has held does not even meet the requirements of due process. Because I believe that the prosecution in this case runs contrary to two of our defining traditions — that of free and open expression, and that of justice and fair play — I respectfully dissent from the court’s failure to correct the panel’s errors by taking this case en banc....

It is firmly established that monetary contributions to political organizations are a form of “speech” protected by the First Amendment ..... [G]iving money to a designated terrorist organization is not protected speech. But if the organization is not a designated terrorist organization, then monetary contributions to it are protected by the First Amendment — maybe not to the same degree as pure speech, but protected nonetheless. A terrorist designation is thus a type of prior restraint on speech, because it criminalizes monetary contributions that would otherwise be protected by the First Amendment.

The panel dismisses Rahmani’s First Amendment arguments with conclusory statements that the money here is being given to a terrorist organization, and is therefore a completely unprotected form of expression.... But this begs the question. The crux of the case — the issue the panel has elided in each iteration of its opinion — is the process by which the designation was made.

ACS Board Member Stephen Berzon argued this case in the Ninth Circuit, and is seeking review in the Supreme Court.