Is Helping Terrorists Always Unlawful?

[I]n enacting IRTPA, Congress explicitly stated that knowledge of the organization’s designation as a foreign terrorist organization, or knowledge of its engagement in terrorist activities or terrorism is required to convict under section 2339B(a). As the district court correctly observed, Congress could have, but chose not to, impose a requirement that the defendant act with the specific intent to further the terrorist activity of the organization, a requirement clearly set forth in sections 2339A and 2339C of the statute, but left out of section 2339B. … Moreover, it is not our role to rewrite a statute, and we decline to do so here. Because there is no Fifth Amendment due process violation, we affirm the district court on this issue….

Plaintiffs [further] argue that this amended definition is impermissibly vague because the statute fails to notify a person of ordinary intelligence as to what conduct constitutes “material support or resources.” Specifically, Plaintiffs argue that the prohibitions on providing “training,” “expert advice or assistance,” “service,” and “personnel” to designated organizations are vague because they are unclear and could be interpreted to criminalize protected speech and expression….

Vague statutes are invalidated for three reasons:”(1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on ‘arbitrary and discriminatory enforcement’ by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms.”…

Plaintiffs argued to the district court that the term “training” as defined by IRTPA remains unconstitutionally vague…. Plaintiffs contended that they must guess whether training PKK members in how to use humanitarian and international human rights law to seek peaceful resolution of ongoing conflict amounts to teaching a “specific skill” or “general[ized] knowledge.”… Because we find it highly unlikely that a person of ordinary intelligence would know whether, when teaching someone to petition international bodies for tsunami-related aid, one is imparting a “specific skill” or “general knowledge,” we find the statute’s proscription on providing “training” void for vagueness. Even if persons of ordinary intelligence could discern between the instruction that imparts a “specific skill,” as opposed to one that imparts “general knowledge,” we hold that the term “training” would remain impermissibly vague. As we previously noted in HLP I, limiting the definition of the term “training” to the “imparting of skills” does not cure unconstitutional vagueness because, so defined, the term “training” could still be read to encompass speech and advocacy protected by the First Amendment. For the foregoing reasons, we reject the government’s challenge and agree with the district court that the term “training” remains impermissibly vague because it “implicates, and potentially chills, Plaintiffs’ protected expressive activities and imposes criminal sanctions of up to fifteen years imprisonment without sufficiently defining the prohibited conduct for ordinary people to understand….

The government argues that the ban on “expert advice or assistance” is not vague.… Plaintiffs contend that the definition of “expert advice or assistance” is vague as applied to them because they cannot determine what “other specialized knowledge” means. We agree with the district court that … the phrase ‘scientific, technical, or other specialized knowledge’ does not clarify the term ‘expert advice or assistance’ for the average person with no background in law.” At oral argument, the government stated that filing an amicus brief in support of a foreign terrorist organization would violate AEDPA’s prohibition against providing “expert advice or assistance.” Because the “other specialized knowledge” portion of the ban on providing “expert advice or assistance” continues to cover constitutionally protected advocacy, we hold that it is void for vagueness….

The term “service” presumably includes providing members of PKK and LTTE with “expert advice or assistance” on how to lobby or petition representative bodies such as the United Nations. “Service” would also include “training” members of PKK or LTTE on how to use humanitarian and international law to peacefully resolve ongoing disputes. Thus, we hold that the term “service” is impermissibly vague because “the statute defines ‘service’ to include ‘training’ or ‘expert advice or assistance,’ “and because “it is easy to imagine protected expression that falls within the bounds of the term service…

AEDPA’s prohibition on providing “personnel” is not vague because the ban no longer “blurs the line between protected expression and unprotected conduct.” … [T]he prohibition on “personnel” no longer criminalizes pure speech protected by the First Amendment…. Plaintiffs advocating lawful causes of PKK and LTTE cannot be held liable for providing these organizations with “personnel” as long as they engage in such advocacy “entirely independently of th[ose] foreign terrorist organization[s].”…