Supreme Court of the US dismisses Mojahedin Khalq fundraisers' appeal

January 2007

No. 06-241

In the Supreme Court of the United States

ROYA RAHMANI, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

PETER D. KEISLER
Assistant Attorney General

DOUGLAS LETTER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

Congress has prohibited the provision of material support to entities
designated by the Secretary of State as Foreign Terrorist Organizations
(FTOs). Petitioners were indicted for providing money to a foreign entity
that had been so designated by the Secretary. That designation was in effect
at all relevant times, and its validity has been upheld by the District of
Columbia Circuit in challenges brought by the organization. The questions
presented are as follows:

1. Whether petitioners are entitled under the First Amendment to challenge
in their own criminal proceedings the validity of the Secretary's
designation of an FTO.

2. Whether petitioners may constitutionally be prosecuted for providing
money to a group whose designation as an FTO was effective when petitioners
provided the money and was ultimately upheld by the District of Columbia
Circuit.

In the Supreme Court of the United States

No. 06-241

ROYA RAHMANI, ET AL., PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 15a- 35a) is reported at 426
F.3d 1150. The opinion of the district court (Pet. App. 36a-59a) is reported
at 209 F. Supp. 2d 1045.

JURISDICTION

The court of appeals entered its judgment on October 20, 2005. A petition
for rehearing was denied on April 17, 2006 (Pet. App. 1a-14a). On June 14,
2006, Justice Kennedy extended the time within which to file a petition for
a writ of certiorari to and including August 15, 2006, and the petition was
filed on that date. The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

STATEMENT

1. In the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
Congress found that "foreign organizations that engage in terrorist
activity are so tainted by their criminal conduct that any contribution to
such an organization facilitates that conduct." Pub. L. No. 104-132, §
301(a)(7), 110 Stat. 1247. Congress viewed a prohibition on material support
for terrorist organizations as "absolutely necessary to achieve the
government's compelling interest in protecting the nation's safety from the
very real and growing terrorist threat." H.R. Rep. No. 383, 104th Cong., 1st
Sess. 45 (1995); see AEDPA § 301(a)(1), 110 Stat. 1247. Accordingly,
Section 302 of AEDPA authorized the Secretary of State to designate an
entity as a "foreign terrorist organization" (FTO) if she found that: "(A)
the organization is a foreign organization; (B) the organization engages in
terrorist activity (as defined in section 1182(a)(3)(B) of this title); and
(C) the terrorist activity of the organization threatens the security of
United States nationals or the national security of the United States." 8
U.S.C. 1189(a)(1). Designations under AEDPA lasted for two years and could
then be renewed by the Secretary. 8 U.S.C. 1189(a)(4).1

Designation of a group as an FTO brings three legal consequences. First,
United States financial institutions possessing or controlling any funds in
which the FTO or its agent has an interest are required to block all financial
transactions involving those funds. 18 U.S.C. 2339B(a)(2). Second,
representatives and members of designated organizations are inadmissible to
this country and are ineligible for visas. 8 U.S.C. 1182(a)(3)(B)(i)(IV) and
(V). Third, and of particular relevance here, it is a felony for any person
within the United States or subject to its jurisdiction to "knowingly"
provide "material support or resources" to any designated FTO. 18 U.S.C.
2339B(a)(1).

AEDPA established a specific mechanism for judicial review of the
Secretary's designations. "Not later than 30 days after publication of the
designation in the Federal Register, an organization designated as a
foreign terrorist organization may seek judicial review of the designation
in the United States Court of Appeals for the District of Columbia Circuit."
8 U.S.C. 1189(b)(1). If a designation or redesignation by the Secretary has
become effective, however, a defendant in a criminal case who is charged
with providing material support to an FTO "shall not be permitted to raise
any question concerning the validity of the issuance of such designation or
redesignation as a defense or an objection at any trial or hearing." 8
U.S.C. 1189(a)(8). AEDPA thus authorized judicial review of the Secretary's
designations only at the behest of the designated organization and only in
the District of Columbia Circuit.

2. In both 1997 and 1999, the Secretary designated the Mujahedin-e Khalq
(MEK) as an FTO. Pet. App. 16a-17a. Although the MEK challenged each
designation in the District of Columbia Circuit, see id. at 17a, it did not contest
the Secretary's determination that it had carried out many of the attacks
found by the Secretary to constitute "terrorist activity" within the meaning
of 8 U.S.C. 1182(a)(3)(B). To the contrary, "the MEK submitted evidence
showing that it was responsible for numerous assassinations of Iranian
officials and mortar attacks on Iranian government installations." Pet. App.
18a; see id. at 24a (noting that the MEK has "proudly proclaimed its own
terrorist activities"); People's Mojahedin Org. of Iran v. Department of
State, 327 F.3d 1238, 1243 (D.C. Cir. 2003) (People's Mojahedin II).

a. The MEK sought judicial review of its 1997 designation by the Secretary
as an FTO, and the District of Columbia Circuit upheld the designation. See
People's Mojahedin Org. of Iran v. Department of State, 182 F.3d 17 (1999),
cert. denied, 529 U.S. 1104 (2000) (People's Mojahedin I). The court held
that, as a foreign organization without a presence in the United States, the
MEK could not claim rights under the United States Constitution. Id. at 22.
With respect to the statutory criteria for designation as an FTO, the court
noted that the MEK had not disputed its status as a foreign organization.
Id. at 24. The court concluded that any one of the numerous bombings and
killings set forth in the administrative record was sufficient to establish
the reasonableness of the Secretary's determination that the MEK had
engaged in terrorist activity. Id. at 20, 24-25. The court further held that
the determination whether the MEK's terrorist activity posed a threat to
national security or the security of U.S. nationals was committed to the
Secretary of State and was not subject to judicial review. Id. at 23.

b. In 1999, the Secretary redesignated the MEK as an FTO. At that time, the
Secretary added a new alias designation for the MEK, finding that the
National Council of Resistance of Iran (NCRI) had been acting as the MEK's
alter ego. The MEK and the NCRI challenged their 1999 designations. See
National Council of Resistance of Iran v. Department of State, 251 F.3d 192
(D.C. Cir. 2001) (NCRI I). The District of Columbia Circuit rejected the
MEK's statutory challenges to the Secretary's action. Id. at 199-200. The
court held, however, that the NCRI had a sufficient presence in the United
States to trigger the protections of the United States Constitution, id. at
201-203, and that the organization had not been provided with adequate
procedural safeguards in connection with the 1999 designation, id. at
208-209.

c. The District of Columbia Circuit remanded the matter to the Secretary of
State to provide appropriate process to the MEK and the NCRI. 251 F.3d at
209. In light of the foreign policy and national security concerns at stake,
and the fact that the 1999 designation would shortly expire in any event,
the court expressly declined to "order the vacation of the existing
designations." Ibid. Shortly thereafter, the 1999 MEK/NCRI designation was
replaced by a new FTO designation premised on a new administrative record.
See 66 Fed. Reg. 51,088-51,089 (2001).

On remand, the Department of State reviewed the 1999 designation and
afforded the MEK the process required by the District of Columbia Circuit's
prior opinion. Again, the MEK did not dispute its foreign status, nor did
it deny that it had carried out violent and deadly attacks within Iran. The
Secretary accordingly declined to vacate the 1999 designation of the MEK as
an FTO. The MEK and NCRI then sought judicial review both of that
determination and of the new 2001 designation, and the District of Columbia
Circuit upheld the government's actions. See People's Mojahedin II, 327
F.3d at 1241-1245; National Council of Resistance of Iran v. Department of
State, 373 F.3d 152, 156-160 (D.C. Cir. 2004) (Roberts, J.) (NCRI II).

The designation of the MEK has thus remained in effect, notwithstanding the
MEK's repeated invocation of AEDPA's judicial-review provision, throughout
the period relevant to this case. The Secretary designated the MEK as an FTO
in 1997 and 1999; the MEK challenged both designations; the District of
Columbia Circuit affirmed the 1997 designation; the court found that the
process used for the 1999 designation was flawed, and it remanded the matter
to the Secretary, but the court did not vacate the designation; the
Secretary reaffirmed the 1999 MEK designation on remand; and the court
rejected the MEK's renewed post-remand challenge to that 1999 designation.

3. On March 13, 2001, petitioners were charged in a 59-count indictment with
knowingly providing material support or resources to the MEK, in violation
of 18 U.S.C. 2339B(a)(1). Pet. App. 16a, 37a. Some of the charges in the
indictment were predicated upon the 1997 designation of the MEK by the
Secretary, others were based on the 1999 designation, and a conspiracy count
depended on both. C.A. E.R. 2-16. The indictment alleged that, between
October 1997 and February 2001, petitioners had undertaken a variety of
measures to provide financial support to the MEK. Pet. App. 16a, 37a. The
indictment further alleged that petitioners had engaged in those activities
despite their awareness that the MEK had been designated as an FTO. Id. at
16a. For example, the indictment alleged that petitioners "were told during
a telephone conference call with an MEK leader in October 1997 that the MEK
had been designated [as an FTO] by the State Department." Id. at 26a-27a.

4. On June 21, 2002, the district court granted petitioners' motion to
dismiss the indictment, finding the relevant AEDPA provisions
unconstitutional. Pet. App. 36a-59a. The court appeared to recognize that
the question whether the MEK possessed the substantive characteristics of
an FTO was not before it in this case. See id. at 45a-46a. The court held,
however, that petitioners could raise the asserted unconstitutionality of 8
U.S.C. 1189's designation procedures as a defense to the criminal charges.
Pet. App. 48a-51a.

The government argued that review of the underlying designations was barred
by 8 U.S.C. 1189(a)(8), which states that "[i]f a designation under this
subsection has become effective * * * , a defendant in a criminal action
shall not be permitted to raise any question concerning the validity of the
issuance of such designation as a defense or an objection at any trial or
hearing." See Pet. App. 50a & n.11. The district court rejected that
contention, stating that "Section 1189(a)(8) is an impermissible limitation
on the federal courts' jurisdiction to hear constitutional challenges to
the sufficiency of an indictment." Id. at 51a. The court found that "Section
1189 violates the [petitioners'] due process rights because [petitioners],
upon a successful Section [2339B] prosecution, are deprived of their liberty
based on an unconstitutional designation they could never challenge." Ibid.

The district court concluded that Section 1189 is unconstitutional on its
face because "the express language of Section 1189 denies a designated
organization the opportunity to be heard in a meaningful manner." Pet. App.
52a. The court stated that "Section 1189, by its express terms, provides the
designated organization with no notice and no opportunity to object to the
administrative record or supplement it with information to contradict the
designation." Id. at 53a. The court held on that basis that "a designation
pursuant to Section 1189 is a nullity since it is the product of an
unconstitutional statute. When a statute is found to be violative of the
Constitution, any action taken thereunder, i.e., a designation of a status
authorized by such statute, must likewise fail." Id. at 58a. The district
court concluded that "the MEK's designation, having been obtained in
violation of the Constitution, is a nullity and cannot serve as a predicate
in a prosecution for violation of [18 U.S.C.] 2339B." Id. at 59a. The court
dismissed the indictment in its entirety, including those counts that were
predicated solely on the 1997 MEK designation, which had been upheld by the
District of Columbia Circuit. Id. at 59a & n.17.

5. The court of appeals reversed. Pet. App. 15a-35a.

a. The court of appeals held that Congress had acted constitutionally in
vesting judicial review of the Secretary of State's FTO designations
exclusively in the District of Columbia Circuit. Pet. App. 20a-21a. The
court observed that "[m]any administrative determinations are reviewable
only by petition to the correct circuit court, bypassing the district court,
and that procedure has generally been accepted." Id. at 20a. The court also
held that 8 U.S.C. 1189(a)(8), which precludes the defendant in a
prosecution under 18 U.S.C. 2339B from collaterally attacking the FTO
designation on which the prosecution is based, is consistent with the Due
Process Clause. See Pet. App. 21a-22a. The court explained:

Congress clearly chose to delegate policymaking authority to the President
and Department of State with respect to designation of terrorist
organizations, and to keep such policymaking authority out of the hands of United
States Attorneys and juries. Under § 2339B, if defendants provide material
support for an organization that has been designated a terrorist
organization under § 1189, they commit the crime, and it does not matter
whether the designation is correct or not.

Id. at 22a.

The court of appeals also rejected petitioners' contention that their due
process rights had been violated when the District of Columbia Circuit
declined to set aside the 1999 designation of the MEK even after finding
that the procedures used in connection with that designation were
constitutionally infirm. Pet. App. 22a- 30a. The court observed that "the
designation would have been unobjectionable if, as it initially appeared,
the MEK was located entirely abroad and had no American location, and [the
designation] was, in any event, harmless because the MEK proudly proclaimed
its own terrorist activities." Id. at 24a. The court further explained
that the MEK itself was entitled to challenge the Secretary's designations
in the District of Columbia Circuit and had obtained judicial review of
both the 1997 and 1999 designations. Id. at 25a. The court of appeals
concluded that petitioners could not establish a deprivation of their
rights under the Due Process Clause by attacking "a designation that
withstood judicial review, that we have no authority to review, that
[petitioners] knew was in place throughout the period of the indictment,
and that is supported by the MEK's own submission." Id. at 27a.

The court of appeals further held that, because the MEK had the opportunity
to challenge the FTO designations on which the instant prosecution was
premised, the Due Process Clause did "not require another review of the
predicate by the court adjudicating the instant § 2339B criminal
proceeding." Pet App. 28a. The court noted that its holding was consistent
with United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en banc),
vacated and remanded on other grounds, 543 U.S. 1097 (2005), the only other
court of appeals decision that had addressed the issue. Pet. App. 29a & n.
51. The court explained that the Fourth Circuit in Hammoud had "held that a
defendant's inability to challenge the designation was not a violation of
his constitutional rights, since the validity of the designation is not an
element of the crime. Rather, the element is the fact of an organization's
designation as a 'foreign terrorist organization.'" Id. at 29a-30a
(footnote omitted).

b. Relying on McKinney v. Alabama, 424 U.S. 669 (1976), petitioners argued
that the defendant in a Section 2339B prosecution has a First Amendment
right to attack the validity of the predicate FTO designation. See Pet. App.
30a. The defendant in McKinney was a newsstand proprietor who was convicted
for selling a magazine that had been found to be obscene in a prior in rem
proceeding to which the defendant was not a party. Id. at 31a. This Court
"held that a decision in another proceeding could not conclusively determine
First Amendment rights to sell a magazine of persons who had no notice and
opportunity to be heard in that proceeding." Ibid. In this case,
petitioners contended that they were similarly "entitled to litigate the
terrorism designation of the MEK in their criminal case." Ibid.

The court of appeals rejected petitioners' First Amendment claim. Pet. App.
30a-35a. The court explained that "[t]he magazine in McKinney was speech,
the money sent to the MEK is not. Though contributions of money given to
fund speech receive some First Amendment protection, it does not follow
that all contributions of money are entitled to protection as though they
were speech." Id. at 31a (footnote omitted). Relying in part on Regan v.
Wald, 468 U.S. 222, 242 (1984), the court found that "[t]he deference due
the Executive Branch in the area of national security reinforces our
conclusion that furnishing material assistance to foreign terrorist
organizations must be distinguished from the McKinney issue, furnishing
obscene magazines." Pet. App. 33a. The court concluded that "[t]he federal
government clearly has the power to enact laws restricting the dealings of
United States citizens with foreign entities. We must allow the political
branches wide latitude in selecting the means to bring about the desired
goal of preventing the United States from being used as a base for
terrorist fundraising." Id. at 34a (citations, brackets, internal quotation
marks, and footnote omitted).

c. The court of appeals denied rehearing en banc, with five judges
dissenting. Pet. App. 1a-14a.

ARGUMENT

The decision of the court of appeals is correct and does not conflict with
any decision of this Court or any other court of appeals. In addition, the
case is in an interlocutory posture, such that further proceedings on
remand may moot the constitutional claims presented here. Further review is
not warranted.

1. Petitioners have not been tried for the offenses alleged in the
indictment, and the court of appeals' decision does not resolve the merits
of the criminal charges. Rather, the court of appeals simply reversed the
dismissal of petitioners' indictment, thereby allowing the prosecution to
go forward. The interlocutory posture of the case "alone furnishe[s]
sufficient ground for the denial" of the petition. Hamilton-Brown Shoe Co.
v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916); accord Brotherhood of
Locomotive Firemen v. Bangor & Aroostook R.R., 389 U.S. 327, 328 (1967) (per
curiam); Virginia Military Inst. v. United States, 508 U.S. 946 (1993)
(opinion of Scalia, J., respecting the denial of the petition for writ of
certiorari). If petitioners are acquitted following a trial on the merits,
their constitutional claims will become moot. If petitioners are convicted,
they will be entitled to reassert their current challenges to the AEDPA
provisions on which the prosecution is based, in addition to any other
claims they may have at that time.

2. Relying primarily on McKinney v. Alabama, 424 U.S. 669 (1976),
petitioners contend (Pet. 13-21) that they are entitled under the First
Amendment to have the judge or jury determine in their own criminal case
whether the MEK is indeed a terrorist organization. As noted above, this
Court held in McKinney that a news stand proprietor charged with
distributing obscene materials was entitled to litigate the question
whether the relevant magazine was in fact obscene, and that the defendant
could not be bound by a determination made in a prior proceeding in which he
had no opportunity to participate. See 424 U.S. at 670-677. As the court of
appeals correctly held (Pet. App. 30a-35a), petitioners' reliance on
McKinney is misplaced because the transfer of funds to a foreign
organization is not comparable for First Amendment purposes to the
dissemination of magazines within this country.

a. This Court has recognized that Congress and the Executive have broad
authority to regulate financial interactions between United States nationals
and foreign entities. In Regan v. Wald, 468 U.S. 222 (1984), for example,
this Court sustained a broad Executive Branch embargo on dealings with Cuba,
including travel and financial transactions with Cuban nationals. The Court
rejected the plaintiffs' Due Process Clause challenge to the embargo,
deferring to the Executive Branch's determination that Cuba should be
denied hard currency, in part because of that nation's prior support for
violence and terrorism. See id. at 240-243. The Court explained that the
conduct of foreign relations is "so exclusively entrusted to the political
branches of government as to be largely immune from judicial inquiry or
interference." Id. at 242 (quoting Harisiades v. Shaughnessy, 342 U.S. 580,
589 (1952)).

Petitioners contend that Wald is inapposite because the Court in that case
"not[ed] that no First Amendment rights were at issue." Pet. 19 n.11 (citing
Wald, 468 U.S. at 241-242). That effort to distinguish Wald is unavailing.
The Court in Wald distinguished the nearly categorical travel ban that was
at issue in that case from prior travel restrictions based on political
affiliation, which the Court had struck down in Kent v. Dulles, 357 U.S. 116
(1958), and Aptheker v. Secretary of State, 378 U.S. 500 (1964). See Wald,
468 U.S. at 240-242. The Court found that broadly applicable travel bans
like that involved in Wald did not implicate "First Amendment rights of the
sort that controlled in Kent and Aptheker." Id. at 241; see id. at 241-242.
AEDPA's ban on financial transactions with designated FTOs does not turn on
the political affiliation or political motivation of the would-be donor but
applies across the board. For First Amendment purposes, it is therefore far
more analogous to the travel ban that was sustained in Wald than to the
selective restrictions that were struck down in Kent and Aptheker.

b. Pertinent lower court decisions have similarly recognized the broad
authority of the political Branches to regulate financial transactions
between United States nationals and foreign entities. In Freedom to Travel
Campaign v. Newcomb, 82 F.3d 1431 (9th Cir. 1996), the court of appeals
rejected the plaintiff's substantive due process challenge to restrictions
on travel to Cuba. Id. at 1438-1439. The court explained that the travel ban
serves "to restrict the flow of hard currency into Cuba," and it noted the
"history of judicial deference" to the decisions of the political Branches
in the realm of foreign affairs. Id. at 1439 (citing, inter alia, Wald).
Similarly, in Farrakhan v. Reagan, 669 F. Supp. 506 (D.D.C. 1987), aff'd,
851 F.2d 1500 (D.C. Cir. 1988) (Table), the district court rejected a Free
Exercise Clause challenge to the President's economic sanctions program
against Libya. Id. at 512. The court explained that it had "little choice
but to defer to the judgment of the President that all economic intercourse
with Libya should cease." Ibid.

Petitioners cite no decision in which any court has sustained a First
Amendment challenge to federal restrictions on transfers of money to
foreign entities. Only one other court of appeals has addressed a
constitutional challenge to 8 U.S.C. 1189(a)(8), which bars the defendant
in a criminal prosecution from collaterally attacking an FTO designation.
See United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en banc),
vacated and remanded on other grounds, 543 U.S. 1097 (2005). The court in
Hammoud, noting that "an FTO designation is subject to judicial review" at
the behest of the organization itself, rejected the defendant's
constitutional claim. Ibid.2 Because petitioners' First Amendment claim is
unsupported by precedent and is inconsistent with established principles of
judicial restraint in the field of foreign relations, further review is not
warranted.

c. Petitioners' reliance on McKinney is therefore unavailing. The ruling in
McKinney created no risk of interference with the judgments of the political
Branches in the realm of foreign affairs. McKinney, moreover, involved
restrictions on the dissemination of magazines within this country, a form
of regulation that implicates the First Amendment far more directly than
does a prohibition on financial dealings with discrete foreign entities.3 As
the court of appeals explained, "[t]hough contributions of money given to
fund speech receive some first Amendment protection, it does not follow that
all contributions of money are entitled to protection as though they were
speech." Pet. App. 31a (footnote omitted). And because determinations of ob
scenity are based on the standards of the local community, see Miller v.
California, 413 U.S. 15, 24 (1973); McKinney, 424 U.S. at 673, relitigation
of the obscenity question in individual criminal prosecutions did not
threaten any interest in nationwide uniformity of the sort implicated by
this case.4

Furthermore, whereas the offense at issue in McKinney turned on whether the
defendant had sold a magazine that was in fact obscene, the offense in this
case turns on whether the defendant knowingly gave money to an entity that
was designated as an FTO. A defendant in a Section 2339B prosecution is free
to challenge the fact of the designation-which is the pertinent element of
the offense. See Pet. App. 26a ("[T]he fact of an organization's designation
as [a terrorist organization] is an element of § 2339B, but the validity of
the designation is not.") (quoting Hammoud, 381 F.3d at 331). In addition, a
defendant may contend that he did not act "knowingly" within the meaning of
the statute. See 18 U.S.C. 2339B(a)(1) (Supp. IV 2004) ("To violate this
paragraph, a person must have knowledge that the organization is a
designated terrorist organization * * * , that the organization has engaged
or engages in terrorist activity * * * , or that the organization has
engaged or engages in terrorism.").

3. Petitioners contend (Pet. 21-28) that, even if defendants in Section
2339B prosecutions could otherwise be foreclosed from contesting the
validity of the under lying FTO designations, that preclusion rule is imper
missible here because the AEDPA designation procedures were themselves
unconstitutional. Petitioners rely principally on this Court's decision in
Freedman v. Maryland, 380 U.S. 51 (1965). That argument lacks merit and does
not warrant this Court's review.

a. The defendant in Freedman was convicted of exhibiting a film without the
prior approval of a state censorship board. See 380 U.S. at 52-53. This
Court held that the state procedural regime governing authorization to
exhibit motion pictures was constitutionally infirm. See id. at 59-60. Like
McKinney, Freedman involved core First Amendment activity occurring within
this country rather than the transfer of funds to a foreign entity. And,
like McKinney, Freedman did not implicate the power of Congress and the
Executive Branch to direct this Nation's foreign affairs.

In light of those differences alone, the decision in Freedman casts no
meaningful light on the question presented here. In particular, Freedman
does not support petitioners' contention that they are constitutionally
entitled to contest the validity of the underlying FTO designations in
defending against the current criminal charges. As the Fourth Circuit has
explained, "Congress has provided that the fact of an organization's
designation as an FTO is an element of [the offense under 18 U.S.C.] §
2339B, but the validity of the designation is not." Hammoud, 381 F.3d at
331; see Pet. App. 22a ("Under § 2339B, if defendants provide material
support for an organization that has been designated a terrorist
organization under § 1189, they commit the crime, and it does not matter
whether the designation is correct or not."). Freedman simply does not speak
to the question whether Congress may define as a criminal offense the
provision of money to an organization that has in fact been designated as an
FTO, without regard to the validity of the designation.

b. Petitioners' claim of a constitutional right to attack the validity of
the 1997 and 1999 designations is especially misguided because the MEK
itself possessed and invoked the right to judicial review in the District of
Columbia Circuit. In People's Mojahedin Organization of Iran v. Department
of State, 182 F.3d 17 (1999), cert. denied, 529 U.S. 1104 (2000), the
District of Columbia Circuit upheld the Secretary of State's 1997
designation of the MEK as an FTO. With respect to the procedures used to
effect the designation, the court held that, as a foreign organization
without a presence in the United States, the MEK could not claim rights
under the United States Constitution. See id. at 22 ("No one would suppose
that a foreign nation had a due process right to notice and a hearing before
the Executive imposed an embargo on it for the purpose of coercing a change
in policy."); see also Price v. Socialist People's Libyan Arab Jamahiriya,
294 F.3d 82, 95-96 (D.C. Cir. 2002) (holding that foreign states are not
covered by the Due Process Clause). That holding will encompass the large
majority of designated FTOs. Cf. 32 County Sovereignty Comm. v. Department
of State, 292 F.3d 797, 799 (D.C. Cir. 2002). And because the indictment in
this case was premised in part on conduct alleged to have occurred during
the period when the 1997 designation was in effect, that holding provides an
independently sufficient basis for rejecting petitioners' contention that
they are entitled to dismissal of the indictment.

In NCRI I, supra, the District of Columbia Circuit held that the 1999
designation of the MEK/NCRI violated the organization's rights under the
Due Process Clause. 251 F.3d at 201-204; see p. 5, supra. In remanding the
matter to the Secretary of State, however, the court expressly declined to
"order the vacation of the existing designations." Id. at 209. After
providing the MEK with additional process on remand, the Secretary again
designated the MEK as an FTO and declined to vacate the 1999 designation,
and the District of Columbia Circuit sustained the government's actions.
See People's Mojahedin II, 327 F.3d at 1241-1245; NCRI II, 373 F.3d at
156-160.

Thus, "the MEK has been designated a terrorist organization throughout the
relevant period, and that designation has never been set aside." Pet. App.
26a. And, as the court of appeals recognized in this case, any errors in
the process that produced the 1999 designation were ultimately "harmless
because the MEK proudly proclaimed its own terrorist activities." Id. at
24a. Under those circumstances, it is particularly clear that petitioners
have suffered no deprivation of constitutional rights as a result of their
inability to challenge the designations that underlay this prosecution.

c. The question whether a prosecution under 18 U.S.C. 2339B (2000 & Supp. IV
2004) may be premised on an FTO designation that was held to be procedurally
invalid but was never vacated is unlikely to arise in the future. In
accordance with the District of Columbia Circuit's decision in NCRI I, the
Secretary of State currently affords the process that decision requires
before designating as an FTO an organization with a significant United
States presence. See, e.g., Kahane Chai v. Department of State, 466 F.3d
125, 127 (D.C. Cir. 2006). Thus, to the extent that petitioners'
constitutional claim rests on the fact that the 1999 designation was held to
be procedurally invalid in a manner that the District of Columbia Circuit
ultimately found to be harmless, the question presented is of no ongoing
importance and therefore does not warrant this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

PETER D. KEISLER
Assistant Attorney General

DOUGLAS LETTER
Attorney


NOVEMBER 2006

1 The criteria for FTO designation were amended by the USA PATRIOT Act of
2001. See Pub. L. No. 107-56, § 411(c), 115 Stat. 349. The provisions
governing the length of time for which the Secretary's designations remain
in effect, as well as how they can be challenged, were amended in 2004. See
9/11 Commission Implementation Act of 2004, Pub. L. No. 108-458, § 7119(a),
118 Stat. 3801 (8 U.S.C. 1189(a)(4) (Supp. IV 2004)). The changes to the
statutory scheme effected by those amendments do not affect this case.
Because the designations relevant to petitioners' indictment were made under
AEDPA in its original form, this brief describes the statutory scheme as it
then existed.

2 The defendant in Hammoud did not raise a First Amendment claim but instead
argued that Section 1189(a)(8) violated his right to jury trial and was
inconsistent with nondelegation principles. See 381 F.3d at 331. This Court
vacated the Fourth Circuit's judgment in Hammoud and remanded the case for
further consideration in light of United States v. Booker, 543 U.S. 220
(2005). See Hammoud v. United States, 543 U.S. 1097 (2005). The full Fourth
Circuit subsequently reinstated those aspects of its earlier decision that
involved matters other than sentencing. See United States v. Hammoud, 405
F.3d 1034 (2005).

3 Petitioners' reliance (Pet. 18) on Heffron v. International Society for
Krishna Consciousness, Inc., 452 U.S. 640 (1981), and International Society
for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), is similarly
misplaced. Those decisions simply recognized that the oral or written
solicitation of otherwise lawful contributions "is a form of speech
protected under the First Amendment." Id. at 677; see Heffron, 452 U.S. at
647. The Court had no occasion to consider the constitutionality of any
restriction on the transfer of funds, and the cases did not implicate the
authority of federal officials to conduct this Nation's foreign affairs. In
both of those cases, moreover, the challenged solicitation restrictions
were upheld against First Amendment attack. See Heffron, 452 U.S. at
654-655; Lee, 505 U.S. at 679-685.

4 As the Fourth Circuit noted in Hammoud, the Secretary of State's
designation of a group as an FTO is subject to judicial review at the behest
of the organization itself. See 381 F.3d at 331. Congress's decision to
centralize such review in the District of Columbia Circuit, and to restrict
the timing and scope of that review, furthers compelling purposes. Those
purposes would be substantially disserved if judges or juries in individual
criminal prosecutions could reach potentially conflicting judgments
regarding the validity of a particular FTO designation, especially if that
decision had already been reviewed and upheld by the District of Columbia
Circuit. Cf. United States v. Bozarov, 974 F.2d 1037, 1044 (9th Cir. 1992)
("[T]he need for uniformity in the realm of foreign policy is particularly
acute; it would be politically disastrous if the Second Circuit permitted
the export of computer equipment and the Ninth Circuit concluded that such
exports were not authorized by the [statute]."), cert. denied, 507 U.S. 917
(1993).

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