Wednesday, September 5, 2018

Ayn Traylor-Sadberry, In the context of a criminal trial of supporters of allegedly terrorist organization in Somalia ...

In the context of a criminal trial of supporters of allegedly terrorist organization in Somalia, Eighth Circuit considers whether the Secretary of State’s designation of a foreign organization as a “terrorist organization” violates due process

Amina Farah Ali and Hawo Mohamed Hassan, both from Somalia, are United States naturalized citizens living in Minnesota. In February 2008, the Secretary of State designated al Shabaab as a foreign terrorist organization. That same year, the FBI learned that Ali had contacted members of al Shabaab. Both Ali and Hassan were criminally charged.

During the ten-day trial in 2011, the jury learned about the history of Somalia and the goal of al Shabaab “to impose [its] version of Islamic law on Somalia”, as explained by the expert witness, Matthew Bryden. 

The Government presented evidence that Ali and Hassan planned and participated in fundraising teleconferences in which a speaker would give a lecture; that Hassan kept track of the donors’ phone numbers; that Ali spoke with Hassan Afgoye, who at one time was responsible for al Shabaab’s finances, and discussed money that she arranged to be sent to him or to his associates; that Ali also spoke with Agoye about the activities of al Shabaab in Somalia, and was happy to learn that enemies were killed; and that Hassan spoke with members of al Shabaab and he was happy to hear about the killings carried out by this group. Furthermore, the Government presented evidence of Ali’s and Hassan’s connection with groups both inside and outside of Somalia, and with terrorists such as Hassan Dahir Aweys, and demonstrated that al Shabaab had connections to al Qaeda. The Government further presented evidence related to two false-statement counts against Hassan which were related to statements made in 2009 to an FBI agent that Ali did not know anyone who sent money to al Shabaab and similar groups; nor that Ali had ever asked that money be sent to Somalia or elsewhere through a “hawala” (an informal value transfer system based on the performance and honor of a network of money brokers).
In their closing arguments, Ali and Hassan defended their actions as an intention to provide humanitarian relief to Somalia. The jury returned a guilty verdict on all counts. The district court sentenced Ali to 240 months in prison and Hassan to 120 months in prison. Both Ali and Hassan appealed.
The United States Court of Appeals for the Eighth Circuit affirms the district court’s decision.
In a de novo review, the Court decides the issue raised by Ali and Hassan on whether the designation of a foreign organization as a terrorist organization by the Secretary of State violates their due process.
First, Ali and Hassan claimed that their material-support convictions violate the Due Process Clause of the Fifth Amendment.
“As relevant here, the material-support statute forbids ‘knowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] or conspir[ing] to do so.’ 18 U.S.C. § 2339B(a)(1). The phrase ‘foreign terrorist organization’ is a term of art that is defined in 8 U.S.C. § 1189(a)(1). Under this provision, the Secretary of State may designate an organization a foreign terrorist organization if the Secretary finds that (1) the organization is a ‘foreign organization’; (2) the organization engages in ‘terrorist activity’ or ‘terrorism’ or ‘retains the capability and intent to engage in terrorist activity or terrorism’; and (3) ‘the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States.’ Id. Section 1189 also provides a mechanism by which an organization can seek judicial review of its designation as a foreign terrorist organization in the United States Court of Appeals for the District of Columbia Circuit. Id. § 1189(c)(1). However, this ability to challenge a designation belongs to the organization, not a defendant in a criminal proceeding. Id. § 1189(a)(8).”
Second, Ali and Hassan argued that prohibiting them from challenging the Secretary of State’s designation of al Shabaab as a foreign terrorist organization also offends due process.
“[…]For purposes of the Due Process Clause, the Supreme Court has stated that ‘in determining what facts must be proved beyond a reasonable doubt the . . . legislature’s definition of the elements of the offense is usually dispositive.’ McMillan v. Pennsylvania, 477 U.S. 79, 85 (1986). Under 18 U.S.C. § 2339B, ‘Congress has provided that the fact of an organization’s designation as [a foreign terrorist organization] is an element of [the crime], but the validity of the designation is not.’ Hammoud, 381 F.3d at 331. Thus, like our sister circuits, we hold that it comports with due process to prohibit a criminal defendant from challenging the validity of the Secretary of State’s designation of a foreign terrorist organization. See id.; Afshari, 426 F.3d at 1155-59. In reaching this conclusion, we note that an organization’s designation as a foreign terrorist organization is not wholly immune from challenge. The statute provides a method by which an organization, rather than a criminal defendant, can contest the Secretary of State’s designation. 8 U.S.C. § 1189(c); see Lewis v. United States, 445 U.S. 55, 65-67 (1980).”
The Court also rejects Ali’s and Hassan’s argument that allowing the Secretary of State to designate foreign terrorist organizations amounts to an unconstitutional delegation of legislative power.
“The longstanding rule is that ‘Congress may delegate its legislative power if it `lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.’ South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 795 (8th Cir. 2005) (alterations in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Congress has ‘wide latitude in meeting the intelligible principle requirement . . . [because] `Congress simply cannot do its job absent an ability to delegate power under broad general directives.’ Id. (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). ‘Congress fails to give sufficient guidance in its delegations only if it `would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed.’ Id. at 796 (quoting Yakus v. United States, 321 U.S. 414, 426 (1944)).”
“The statutory scheme governing the designation of foreign terrorist organizations provides an intelligible principle. See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th Cir. 2000) (explaining that § 1189(a) ‘does not grant the Secretary unfettered discretion in designating the groups to which giving material support is prohibited). […]As the Ninth Circuit has observed, ‘[t]he Secretary could not, under this standard, designate the International Red Cross or the International Olympic Committee as [foreign] terrorist organizations. Rather, the Secretary must have reasonable grounds to believe that an organization has engaged in terrorist acts—assassinations, bombings, hostage-taking and the like—before she can place it on the list.” Humanitarian Law Project, 205 F.3d at 1137.[…]”
Ali and Hassan also argued against the requirement that the Secretary of State determines that an organization “threatens the security of United States nationals or the national security of the United States.” 8 U.S.C. § 1189(a)(1)(C). Furthermore, they argued that the term “national security” is “defined without meanings.”
“[…] But the statute defines ‘national security’ to mean ‘the national defense, foreign relations, or economic interests of the United States.’ Id. § 1189(d)(2). That this definition is general and broad does not an unintelligible principle make. See South Dakota, 423 F.3d at 795. Moreover, ‘[t]he Supreme Court has repeatedly underscored that the intelligible principle standard is relaxed for delegations in fields in which the Executive traditionally has wielded its own power.’ Hepting v. AT&T Corp. (In re Nat’l Sec. Agency Telecomms. Records Litig.), 671 F.3d 881, 89798 (9th Cir. 2011) (collecting cases); see Zemel v. Rusk, 381 U.S. 1, 17 (1965) (‘Congress—in giving the Executive authority over matters of foreign affairs—must of necessity paint with a brush broader than it customarily wields in domestic areas.’). For these reasons, we hold that granting the Secretary of State the ability to designate an organization a foreign terrorist organization does not constitute an unconstitutional delegation of legislative authority.”
The Court affirms district court’s decision. 

Citation: US v. Ali, 799 F.3d 1008 (8th Cir. 2015).

*** Ayn Traylor-Sadberry is a domestic relations, probate & criminal attorney in Birmingham, Alabama. Ms. Traylor-Sadberry received her B.A. degree in 1966 from the University of Oklahoma, her M.A. in 1973 from the University of Oklahoma, and her Juris Doctor from Howard University in 1981. She was admitted as an attorney in Alabama in 1989. Website: