President Bush lacks the constitutional authority to designate groups and persons as terrorists under a post-September 11 executive order, according to a federal judge in Los Angeles.
U.S. District Judge Audrey B. Collins, in a challenge brought by the Washington, D.C.-based Center for Constitutional Rights on behalf of the Humanitarian Law Project, said a Sept. 24, 2001, executive order naming 27 groups and persons as “specially designated global terrorists” (SDGTs) allowed no way for those designated to challenge the ruling.
In a 45-page ruling, Judge Collins said the executive order “contains no definable criteria” to constrain the president’s use of it, and, as a result, “is unconstitutionally vague on its face.” She said the order is subject only to Mr. Bush’s “unfettered discretion.”
The judge also said the order “contains no definable criteria for designating individuals and groups as SDGTs,” and improperly gives the secretary of the Treasury the power to impose penalties for “mere association” with the groups.
The ruling, made public on Tuesday, came in a lawsuit in which the Humanitarian Law Project, through the Center for Constitutional Rights, sought to support the nonviolent work of two groups designated as terrorist: The Kurdistan Workers Party, the main Kurdish political party in Turkey, and the Liberation Tigers of Tamil Eelam, a rebel group fighting for a separate homeland for Tamils in Sri Lanka.
“This law gave the president unfettered authority to create blacklists, an authority President Bush then used to empower the secretary of the Treasury to impose guilt by association,” said David Cole, a Center for Constitutional Rights board member.
“The court’s decision confirms that even in fighting terror, unchecked executive authority and trampling on fundamental freedoms is not a permissible option,” he said.
The Justice Department said the agency thought Judge Collins had erred in her decision.
Days after the September 11 attacks, Mr. Bush invoked his authority under the International Emergency Economic Powers Act and issued Executive Order 13224, declaring that the “grave acts of terrorism” and the “continuing and immediate threat of future attacks” on the United States constituted a national emergency.
He blocked all property and interests in property of 27 groups and persons, each of whom were identified as terrorists. He also authorized the secretary of the Treasury, in consultation with the secretary of state and the attorney general, to designate additional terrorist groups and persons under the order.
Judge Collins did let stand some sections of the order that penalize those who provide “services” to designated terrorist groups, including humanitarian aid and rights training.
A former Los Angeles prosecutor nominated to the federal bench in 1994 by President Clinton, Judge Collins is the first judge to declare any section of the USA Patriot Act as unconstitutional. In a January 2004 decision, she declared unconstitutional a Patriot Act provision that forbid giving advice or assistance to groups identified as foreign terrorist organizations by the U.S. government.
In that ruling, she said the provision was too vague to enforce and violated the Constitution’s First and Fifth amendments, which protect freedom of speech and defendants from self-incrimination, respectively. Congress revised the act last year in response to her rulings and the case was sent back to District Court. The matter is still being litigated.
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