Steve Vladeck argues that the 9th Circuit’s decision in United States v. Afshari, “in which the court found no problem sustaining criminal convictions for contributing to designated Foreign Terrorist Organizations,” is deserving of review by the Supreme Court.
He calls our attention to this passage in the dissenting opinion by Judge Kozinski:
[T]he entire purpose of the terrorist designation process is to determine whether an organization poses a threat to national security. Under the Constitution, the State Department does not have carte blanche to label any organization it chooses a foreign terrorist organization and make a criminal out of anyone who donates money to it. Far too much political activity could be suppressed under such a regime.
Now, I agree that there should be at least some burden on State to demonstrate that FTOs on the list are in fact FTOs. Still, this is the same Supreme Court that ruled that it is not a violation of the 1st Amendment to restrict donations American citizens can give to American political candidates? Surely, if restricting free speech is permissible for the mere purpose of limiting the appearance of conflict of interest in our politics (an idea with which I, by the way, disagree strongly) surely it can be done for the purposes of stopping terrorists? Indeed, there is zero requirement to show that candidate X is a corrupt SOB before limiting the money given to him.
Larry Rosenthal also has some interesting thoughts about the prior restraint aspect of the case, terming Kozinski’s argument “facile.”
