The seven defendants, who are now all United States citizens, argue that they are constitutionally entitled to challenge the validity of that designation as part of their defense. The law under which they were charged, enacted in 1996, gives limited appeal rights to a group that is officially labeled a terrorist organization, but specifically precludes individual defendants, charged with supporting such an organization, from challenging the designation at their trial.
Under the statute, providing financial or other material support to a foreign terrorist organization is a crime that carries a prison sentence of up to 10 years. The seven defendants were indicted in Los Angeles in March 2001 for soliciting money for an organization usually known as the People’s Mojahedin of Iran, which the State Department designated as a foreign terrorist organization in 1997.
That designation has been heatedly disputed, both in federal court and in Congress. After a ruling by the federal appeals court here in 1999 found the designation improper, the State Department reissued it and was permitted by the appeals court to make the new designation retroactive to 1997, which is when the defendants began their fund-raising activities.
A brief submitted to the Supreme Court on the defendants’ behalf by a group of members of Congress described the People’s Mojahedin as “a legitimate political opposition group that Americans should be able to freely and openly support.”
The brief, filed on behalf of the Iran Human Rights and Democracy Caucus of the House of Representatives, described the organization as “the primary opposition group in Iran” and as “a legitimate political resistance movement that seeks a transition from the current theocratic regime to a secular democracy.”
Noting that President Bush has described the current government in Iran as part of the “axis of evil,” the brief said the People’s Mojahedin was not the type of organization Congress had in mind when it gave the executive branch broad authority to designate foreign terrorist organizations and to bar all types of contributions to them.
The justices on Monday made no comment in turning down the case, Rahmani v. United States, No. 06-241. The prosecution has received relatively little publicity as it has made a slow way through the federal courts. But a trial, if one finally takes place, could shine a spotlight on the sweeping authority that Congress handed the secretary of state in the 1996 statute, the Antiterrorism and Effective Death Penalty Act.
Originally, a terrorist designation was to last for two years, renewable at the discretion of the secretary of state. A 2004 law, the Intelligence Reform and Terrorism Prevention Act, gave the secretary added power by making an initial designation permanent. In another change, the USA Patriot Act increased the maximum sentence to 15 years from 10.
The defendants in the case before the court on Monday were originally successful in persuading the Federal District Court in Los Angeles to dismiss their indictment. But a three-judge panel of the United States Court of Appeals for the Ninth Circuit, after considering the case for more than two years, reinstated the indictment in October 2005.
The appeals court said that while “no doubt Congress was well aware that some might claim that ‘one man’s terrorist is another man’s freedom fighter,’ ” Congress nonetheless chose to give the president and the State Department the authority to designate a group as a terrorist organization “and to keep such policymaking authority out of the hands of United States attorneys and juries.”
Consequently, the court said, “it does not matter whether the designation is correct or not.” The crime occurs, it explained, when someone gives support to such an organization, whether or not properly designated as a terrorist group.
An 11-judge panel of the appeals court then considered whether to rehear the case and split 6 to 5 in deciding to let the original decision stand. Judge Alex Kozinski, writing for the five dissenters, said the case “perfectly illustrates the patent unconstitutionality of the terrorist organization designation process.” Judge Kozinski added that Roya Rahmani, the lead defendant, “is being prosecuted — and will surely be sent to prison for up to 10 years — for giving money to an organization that no one other than some obscure mandarin in the bowels of the State Department had determined to be a terrorist organization.”
In their appeal to the Supreme Court, the defendants argued that the “sweeping implications” of the appeals court’s decision would permit the government “to criminalize activities that would otherwise be First Amendment-protected” and to bar judicial review of its determination.
Urging the justices not to hear the case, the government said the issue was not one of free speech but rather of the “broad authority” that the court has long recognized for the regulation of “financial interactions between United States nationals and foreign entities.”
In another case on Monday, the justices turned down an airline passenger’s challenge to the airport screening policy adopted in an unpublished directive by the Transportation Security Agency.
The passenger, John Gilmore, was not permitted to board domestic flights from San Francisco and Oakland, Calif., because he refused to show identification. He argued that a secret directive actually gave passengers the choice of submitting to an intensive screening as an alternative to providing identification. The government lacked a basis for refusing to make the full policy public, he argued.
Responding to Mr. Gilmore’s lawsuit, the government did not concede that it had such a policy. Nonetheless, the Ninth Circuit granted the government’s request to dismiss the case, holding that whatever identification policy existed did not violate any constitutional rights, including the right to travel and the right against unreasonable search and seizure. The case was Gilmore v. Gonzales, No. 06-211.