Counterterrorism Blog

In what could become a very problematic ruling, US District Court Judge Audrey Collins has challenged the President’s “unfettered” authority to designate individuals or groups as “Specially Designated Global Terrorists (SDGTs)” by Executive order. The court found that “the President’s authority to designate SDGT’s under Executive Order 13224 is unconstitutionally vague on its face.” The Court also held that language in the Executive Order allowing the Treasury Department to designate SDGT’s on the basis of their being “otherwise associated with” SDGT’s is “unconstitutionally vague on its face and overbroad.” (Full Decision is linked here) This ruling, if it stands, could have major implications with regard to the 27 Al Qaeda associated entities that were specifically designated by the President as SDGTs in Executive Order 13224. It could also have an impact on past Executive Orders under which Presidents have designated and blocked the assets of specific individuals and entities under various IEEPA based sanctions programs.

This decision comes in a case brought by five organizations and two United States citizens seeking to provide support to the “lawful, nonviolent activities of the Partiya Karkeran Kurdistan (Kurdistan Workers’ Party) (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”).” The effect of the ruling on the 27 Al Qaeda associated entities that were specifically designated by the President as SDGTs in that Executive order is unclear. The Judge refused to provide a blanket injunction and only enjoined the Government from taking action against the 7 parties in this case. The decision also leaves untouched the authority of the State Department and the Treasury Department to designate, under regulations, “foreign persons determined … to have committed, or to pose a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States;{and} …persons determined …to be owned or controlled by, or to act for or on behalf of those persons ….”

The Judge concluded that “the EO provides no explanation of the basis upon which these twenty-seven groups and individuals were designated, and references no findings akin to those the secretary of treasury is required to make. In addition, the procedures for challenging designations made by the secretary of treasury are not clearly available with regard to designations made by the President. In short, the criteria and processes discussed above that apply to the delegated designation authority, and that help ensure its constitutionality, do not appear to apply to the President’s designation authority. Rather, the President’s designation authority is subject only to his unfettered discretion. Finally, nothing in the EO appears to
divest the President of his authority to make additional designations.”

The Court also reasoned that the prohibition on being “otherwise associated with” an SDGT "on its face unconstitutionally intrudes upon activity protected by the First Amendment {since}… the term “otherwise associated” is not itself susceptible of a clear meaning {and}…. the provision contains no definition of the term whatsoever. Accordingly, the provision lends itself to subjective interpretation…. Second…{the} provision contains no definable criteria for designating individuals and groups as SDGTs. Thus, the provision on its face gives the Government unfettered discretion in enforcing it. Accordingly, the “otherwise associated with” provision is unconstitutionally vague on its face."

I think the outcome in this case is wrong and that, if followed, this decision could call into question some of the most effective measures we have to combat terrorism and terrorism financing. And the idea that one can distinguish and/or control the use of funds or other resources, including those provided for humanitarian purposes, by organizations engaged in terrorism is ludicrous. Nevertheless, the Judge’s decision serves well to remind us all of the delicate balancing act that must constantly be re-evaluated when it comes to protecting our security and maintaining our rights and freedoms. Conservative commentators shouldn’t be too quick to criticize Judge Collins for telling the Administration that the President's authority to designate individuals and entities as SDGT's should not be "unfettered." It should be subject to some objective criteria and to some judicial or administrative review. But, I don't think that this case was the right vehicle for that message. After all, neither the PKK or the LTTE were mentioned, or designated in the annex to that Executive Order. They were designated by the State Department under regulations issued pursuant to the Executive Order.