Mark Godsey, University of Cincinnati College of Law:

"Handing a major victory to the Bush Administration, the Ninth Circuit on Monday in U.S. v. Afshari overturned a lower court decision and held Title 18 U.S. C. 2339B(a)(1) constitutional. This statute provides criminal penalties for providing "material support" to a designated terrorist organization.  The statute provides that an organization is designated as a "terrorist organization" under the statute by the Secretary of State.  The further statute provides that an organization labeled by the Secretary as a "terrorist organization" can challenge this finding only in the D.C. Circuit.

The lower court had held that the statute was facially unconstitutional because it restricted judicial review to the D.C. Circuit alone.  Rejecting that position, the Ninth Circuit stated:

Many administrative determinations are reviewable only by petition to the correct circuit court, bypassing the district court, and that procedure has generally been accepted. Many are reviewable only in the D.C. Circuit, or the Federal Circuit, and those restrictions have also been generally accepted. The congressional restriction does not interfere with the opportunity for judicial review, as the MEK's extensive litigation history shows. And this scheme avoids the awkwardness of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the different regional circuits might.

The Court also rejected the defendants due process arguments against the statutorily designated procedure for judicial review.  In rejecting the defendants' First Amendment arguments, the court stated:  "It would be anomalous indeed if Congress could prohibit the contribution of money for television commercials saying why a candidate would be a good or bad choice for political office, yet could not prohibit contribution of money to a group designated as a terrorist organization. Thus, we hold that§ 2339B does not impermissibly restrict the defendants' First Amendment right of association."

According to the indictment, the defendants solicited charitable contributions at the Los Angeles International Airport for the "Committee for Human Rights," gave money and credit cards to the Mujahedin-e Khalq ("MEK"), and wired money from the "Committee for Human Rights" to an MEK bank account in Turkey. They did all this after participating in a conference call with an MEK leader, in which they learned that the State Department had designated the MEK as a foreign terrorist organization. The MEK leader told them to continue to provide material support despite the designation. All told, according to the indictment in this case, the money they sent to the MEK amounted to at least several hundred thousand dollars.

The MEK was founded in the 1960s as an Iranian Marxist group seeking to overthrow the regime then ruling Iran. It participated in various terrorist activities against the Iranian regime and against the United States, including the taking of American embassy personnel as hostages in 1979. After the Iranian regime fell and was replaced by a clerical, rather than a Marxist, regime, MEK members fled to France. They later settled in Iraq, along the Iranian border. There they carried out terrorist activities with the support of Saddam Hussein's regime, as well as, if the indictment is correct, the money that the defendants sent them." [December 21, 2004; CrimProf Blog has the post]