What recent events tell us is that what something is called has substantive repercussions far greater than one might think. Consider “foreign terrorist organization”. It has been in the news because of a recent case that the Supreme Court refused to hear shortly after the first of this year. It involves a 1996 statute with the catchy name of the “Antiterrorism and Effective Death Penalty Act.”
The second half of the name has nothing to do with improving on the botched executions that have been the hallmark of recent efforts to rid us of the unwanted. It has to do with expediting their entry into the death chamber where society’s retribution is exacted. Habeas corpus is the writ whereby those in prison challenge their detention. The “effective death penalty” part of the act restricts the right of prisoners to petition for habeas corpus.
The first part of the act’s name refers to the fact that the act makes it a crime to give financial or other material support to a “foreign terrorist organization”. Under the Act the Secretary of State may designate an entity a “foreign terrorist organization”. The designation can be permanent and anyone convicted of contributing to such a charity (even before it has been so designated) may be sentenced to up to 15 years in prison. A designated terrorist organization may challenge its designation in court but a donor prosecuted for supporting the organization cannot.
The prosecution the Supreme Court refused to review is especially ironic because the defendants are seven donors who gave money to an organization that supports Mr. Bush’s goal of bringing down the Iranian government. They gave money to the People’s Mojahedin of Iran which was designated a terrorist organization in 1997 before Iran joined the Axis of Evil. In 1999 a federal court said the designation had been improperly made and the folks who had been giving it money could not be prosecuted since the recipient of the money was not properly designated a terrorist organization. No problem said the government. Since the fault lay in how the People’s Mojahedin had been designated, the state department redesignated it and, voila, the seven contributors were once again charged with violating the law.
At first blush that seems a little bit like what lawyers might call ex post facto. If for example, a pastor or priest under the jurisdiction of a foreign potentate were found to have been a sexual predator, the Secretary of State might conclude that particular parish was a terrorist organization (which as far as the young children involved were concerned it was) and prosecute all its parishioners who put money in the collection plate on Sundays. The foreign primate could challenge the designation but the individual parishioner could not. If the appeal were unsuccessful, the parishioners might find themselves in prayerful poses in jail cells for up to 15 years.
And so it is that the seven defendants in the case of Rahmani v. United States were disappointed when on January 8, 2007, the United States Supreme Court declined to hear their appeal attacking the designation of a group they had supported before it was properly designated a “terrorist organization.” They were supported in their appeal not only by ordinary people who agree with their goal of bringing down the current Iranian government. They were also supported by the Iran Human Rights and Democracy Caucus of the House of Representatives that described the organization as “the primary opposition group in Iran” and “a legitimate political resistance movement that seeks a transition from the current theocratic regime to a secular democracy”. The group’s brief said the People’s Mojahedin was not the kind of organization Congress had in mind when it passed the Act. The caucus includes such luminaries in the House of Representatives as Tom Tancredo from Colorado who rarely takes any public position that is not an embarrassment to his home state. This might be the one exception to that rule.
Thanks to the Supreme Court’s lack of action, here is the law of George Bush’s land. Anyone can be prosecuted and sent to prison for up to 15 years for supporting what the Secretary of State has designated a “terrorist organization” because, as the Court of Appeals for the 9th Circuit said: “It does not matter whether the designation is correct or not”. Judge Alex Kozinski who wrote for the dissenters observed that the defendants were prosecuted “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.” The dissenters got it right. The majority got it wrong. The donors may get to go to jail.
CHRISTOPHER BRAUCHLI is a lawyer in Boulder, Colorado. He can be reached at: Brauchli.firstname.lastname@example.org. Visit his website: http://hraos.com/