Judge Strikes Down Parts of Executive Order on Terrorism

By Dan Eggen
Washington Post Staff Writer
Wednesday, November 29, 2006

A Los Angeles federal judge has ruled that key portions of a presidential order blocking financial assistance to terrorist groups are unconstitutional, further complicating the Bush administration's attempts to defend its aggressive anti-terrorism tactics in federal courts.

U.S. District Judge Audrey B. Collins, in a ruling released late Monday, found that two provisions of an executive order signed Sept. 23, 2001, are impermissibly vague because they allow the president to unilaterally designate organizations as terrorist groups and broadly prohibit association with such groups.

The ruling marks a victory for the Humanitarian Law Project and other plaintiffs in the case, who are seeking to provide support for the "lawful, nonviolent activities" of two groups designated terrorist organizations by the U.S. government: the Kurdistan Workers' Party (PKK) in Turkey and the Liberation Tigers of Tamil Eelam (LTTE), also known as the Tamil Tigers, in Sri Lanka.

They argue that federal anti-terrorism laws put charities and individual donors at risk of prosecution for providing benign assistance to foreign groups that have been added to the government's terrorism list.

David Cole, a Georgetown University law professor who is helping to represent the plaintiffs in the case, said the executive order and a related federal statute improperly allow President Bush to create "blacklists" and engage in "guilt by association."

"The court's decision confirms that even in fighting terror, unchecked executive authority and trampling on fundamental freedoms is not a permissible option," Cole said in a statement.

The ruling is the latest setback for the administration's terrorism and detention policies, in lower courts and at the Supreme Court. In August, a federal judge in Detroit ruled that a National Security Agency warrantless wiretap program is unconstitutional. The government has appealed that ruling.

Collins has previously issued similar rulings in favor of the Humanitarian Law Project, a Los Angeles group that has filed legal challenges to a 1996 anti-terrorism law and to the 2001 USA Patriot Act. Those issues are still being litigated after Congress rewrote parts of the Patriot Act.

The latest case focuses on Executive Order 13224, which is aimed at cutting off financing to alleged terrorist groups and is based on the 1977 International Emergency Economic Powers Act. Twenty-seven groups and individuals were initially named as "specially designated global terrorists" under the order -- including the PKK and the Tamil Tigers -- and hundreds more since have been added to the list.

In her ruling, Collins said the order is unconstitutional because there is "no apparent limit" on presidential authority to designate groups or individuals as terrorists. In addition, the judge ruled, language banning those "otherwise associated" with such groups is "unconstitutionally vague on its face." Collins rejected a number of other claims by the plaintiffs, however, including that the order's definition of a terrorist group is too vague.

The Justice Department said it is too early to decide on an appeal.

"We are pleased that the court rejected many of the constitutional arguments raised by the plaintiffs," Justice Department spokesman Brian Roehrkasse said in a statement. "However, we believe the court erred in finding that certain other aspects of the executive order were unconstitutional."

Bruce Fein, a Justice Department official in the Reagan years who has criticized the Bush administration's broad assertions of executive power, said that appealing Collins's ruling may carry more risks for the government than simply changing the executive order's language.

"If they take this up on appeal, they risk another repudiation of this omnipotent-presidency theory that they have," Fein said.

Staff researcher Julie Tate contributed to this report.

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