- The Washington Times - Thursday, July 11, 2002

Last week's unprecedented court ruling in California regarding the legality of the religious phrase in the Pledge of Allegiance caused a nationwide uproar and elicited a dramatic response from Congress. Unfortunately, this event overshadowed an equally disturbing ruling of the California federal system regarding the prosecution of the war against terrorism.

That is, a U.S. District Court judge in California, Robert M. Takasugi, threw out an indictment against six men charged with financially supporting an organization designated as "terrorist" by the secretary of state. The principal ground for this bizarre ruling was that the procedure used by the secretary of state to designate this organization as "terrorist" deprived the charged organization of procedural due process, thereby precluding criminal charges against persons supporting the organization.

Cutting off financial support in this country to terrorist organizations worldwide is an important part of the war against terrorism. The ability of the United States to wage this part of the war will be severely compromised if this District Court decision is upheld.

Under the "Antiterrorism and Effective Death Penalty Act of 1996," it is unlawful to provide support to or to raise funds for an organization designated by the secretary of state as a "terrorist." An organization so designated can also have its assets frozen. Under the Act, an organization designated as "terrorist" may seek judicial review in the U.S. Court of Appeals for the District of Columbia Court. The review is of the administrative record compiled by the secretary of state, supplemented with classified information by the government, which need not be shown to the designated organization.

Pursuant to the Act, the secretary of state designated Mujahedin-e Khalq ("MEK"), using an alias name, as a terrorist organizations. MEK sought review in the D.C. Court of Appeals, which held that the secretary was required to provide the organization with "the opportunity to be heard at a meaningful time in a meaningful manner." Without disrupting the designation of MEK, the matter was remanded to the secretary of state, who compiled with the court's conditions and reaffirmed the foreign terrorist designation of MEK. Again, MEK sought review in the District of Columbia, Court of Appeals, whose review is now pending.

In California, the six defendants were indicted for giving material support to MEK. The District Court in California concluded that it, as well as the Court of Appeals for the District of Columbia Circuit, could review the secretary's designation and the constitutionality of the congressionally specified hearing procedure The District Court concluded that a hearing based solely on the administrative record was unconstitutional, and that the criminal charges could not be predicated on such a designation. The court dismissed all counts of the indictment as to all defendants.

A curious and disturbing aspect of the California court's decision is that although the D.C. Appeals Court decided not to set aside the designation of MEK as a terrorist organization, the California court gave no deference to that decision. In doing so, the District Court in California effectively overruled a Court of Appeals; a remarkable action for a District Court, for which no supporting authority was cited. The District Court was in such unseemly haste to dismiss the criminal charges that it did not even wait for the appellate court to rule on the pending appeal of MEK's designation or on the constitutionality of the hearing procedure, which it was required by statute to consider.

This rush to dismiss criminal charges and to invalidate MEK's designation, purposely left in effect by the higher court, is a severe blow to the war against terrorism and should be reviewed promptly. Whether or not the hearing procedure is ultimately determined to be constitutional, the proper forum is the United States Court of Appeals for the District of Columbia Circuit, and not a single-judge District Court in California.

Yonah Alexander is director of the International Center for Terrorism Studies at the Potomac Institute for Policy Studies in Arlington. Edgar H. Brenner is co-director of the Inter-University Center for Legal Studies at the International Law Institute. Both recently co-edited "U.S. Federal Legal Responses to Terrorism" (Transnational, 2002).

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