Humanitarian Law Project, et al. v. Mukasey, HLP, et al. v. Gonzales, and HLP, et al. v. Ashcroft

Synopsis

Humanitarian Law Project, et al. v. Mukasey (formerly Humanitarian Law Project, et al. v. Ashcroft and Humanitarian Law Project, et al. v. Gonzales, et al.)is a case in which the Center for Constitutional Rights (CCR) challenged a USA PATRIOT Act provision that criminalizes the provision of material support in the form of “expert advice and assistance” to so-called “terrorist organizations.” This is a companion case to Humanitarian Law Project, et al. v. Reno and Humanitarian Law Project, et al. v. U.S. Department of Treasury.

Status

On January 23, 2008, the government asked the full (en banc) Court of Appeals for the Ninth Circuit to reconsider the Dec. 10, 2007 decision of the panel of three judges in HLP v. Mukasey.

Description

Humanitarian Law Project, et al. v. Ashcroft is a case filed on behalf of the Humanitarian Law Project and several Tamil-American organizations with the U.S. District Court for the Central District of California in Los Angeles. It challenges the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA Patriot Act), claiming it is vague and overbroad and that it violates their First and Fifth Amendment rights.

The Patriot Act was rushed through Congress just six weeks after 9/11, and it has been severely criticized for infringing on civil liberties. The law became the linchpin of the Justice Department's domestic criminal war on terrorism. Virtually every anti-terrorism prosecution filed since September 11 has included a charge under this statute.

The Patriot Act amended the definition of material support provided by the 1996 anti-terrorism law AEDPA to include "expert advice and assistance" and made it a crime to provide such advice or assistance no matter what its intent and purpose, even where it has nothing whatsoever to do with furthering terrorism. Moreover, the Patriot Act increased the sentence for this “crime” from 10 years to 15 years or even life.

The Justice Department had aggressively invoked the material support statute since the attacks of September 11, using it to charge, among others, John Walker Lindh; the Lackawanna Six, who attended an al Qaeda training camp; a group of men in Portland, Oregon, who allegedly sought to travel to Afghanistan to fight on behalf of the Taliban; a group of men in Virginia who allegedly sought to support a designated group in Kashmir; and James Ujaama, a black activist in Seattle, Washington.

The lead plaintiff in this case is the Humanitarian Law Project (HLP), a Los Angeles-based non-profit with consultative status to the United Nations that advocates for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law. HLP wanted to assist the Kurdistan Workers' Party (PKK) with conflict resolution and human rights monitoring in Turkey.

Another plaintiffs include Dr. Jeyalangim, a Tamil-American physician who is deeply concerned for the welfare of the Tamils in Sri Lanka as members of his family were forced to flee that country as refugees. He and other physicians who are members of the Ilankai Thamil Sangam, another plaintiff in the suit, would like to provide their expert medical advice on how to address the shortage of medical facilities and trained physicians in the Tamil Eelam region of northeast Sri Lanka and how to improve the distribution of health care. However, because some of the hospitals in the region are run by the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka, they are afraid to do so because they fear prosecution for providing material support.

CCR argued that the ban on "expert advice and assistance" added by the Patriot Act covers essentially the same activities as the ban on "training" and "personnel" in the 1996 law that have been held to be in violation of the First Amendment because they are vague. The Humanitarian Law Project and its president, Ralph Fertig, desired to advocate for the PKK before the United Nations Commission on Human Rights and the United States Congress, write and distribute publications supportive of the PKK's political goals, and advocate for the freedom of four Turkish political prisoners convicted of being PKK members or supporters.

In addition, they wanted to advise the PKK on recent developments in international human rights, the procedures for seeking review by the newly established International Criminal Court, and peacemaking and negotiation skills. They sought a court order barring the government from prosecuting them for engaging in these activities. The district court supported them, ruling that both the PKK and the LTTE engage in a broad range of lawful, nonviolent activity, and the plaintiffs sought to support only the lawful activities of such groups. Yet the broad Patriot Act ban on providing "expert advice and assistance" has led the groups to fear providing such support, for fear of facing criminal sanctions.

Timeline

On August 27, 2003, the suit was filed in the U.S. District Court for the Central District of California in Los Angeles. The district court issued a court order barring the government from prosecuting the PKK and LTTE for engaging in these activities.

On October 10, 2003, the plaintiffs filed a motion for summary judgment.

On December 15, 2003, the government filed a motion to dismiss.

On January 27, 2004, U.S. District Judge Audrey Collins ruled that a ban on providing "expert advice and assistance" to terrorist groups violates the First and Fifth Amendments to the Constitution because it is so vague that it "could be construed to include unequivocally pure speech and advocacy protected by the First Amendment." The court issued an injunction preventing the government from enforcing the “expert advice or assistance” provision against the plaintiffs. The ruling, an immense victory for CCR, was the first such ruling on the Patriot Act.

On December 17, 2004, Congress enacted the Intelligence Reform and Terrorism Prevention Act (IRTPA).

On December 21, 2004, the Ninth Circuit en banc panel declined to decide the case, vacated its decision, and remanded the case to the district court in view of IRTPA. The case was renamed Humanitarian Law Project, et al. v. Gonzales, et al.; all the plaintiffs remained with the exception of the Northern California Tamil Association.

On July 25, 2005, Judge Collins ruled that the government did not need to show that the plaintiffs had specific intent to further the organization’s unlawful terrorist activities in order to prove violation of the “material support of resources” provision. She also ruled that the term “training” was impermissibly vague because “it easily encompasses protected speech and advocacy, such as teaching international law for peacemaking resolutions or how to petition the United Nations to seek redress for human rights violations.” Both CCR and the government appealed the decision to the Ninth Circuit Court of Appeals.

On May 1, 2007, the Ninth Circuit heard the oral argument for the case.

On January 23, 2008, the government asked the full (en banc) Court of Appeals for the Ninth Circuit to reconsider the Dec. 10, 2007 decision of the panel of three judges in HLP v. Mukasey.