You know you're in trouble when you can't even call the terrorists "terrorists."This effectively was the ruling handed down last week by Judge Audrey Collins of the federal district court in Los Angeles.
It marks yet another low point not only in the Bush administration's record in defending its War on Terror legal doctrines in the courtroom (2006 has been particularly unkind in this respect) but also in the courts' increasingly nonsensical attempts to assert themselves in matters of national security.
This latest episode began in 1917 when, in the Trading With the Enemy Act, Congress granted the president broad authority to "investigate, regulate . . . prevent or prohibit . . . transactions" in times of war or declared emergencies.
And then in 1977 Congress extended that authority in the International Emergency Economic Powers Act (IEEPA), to include the power to "investigate,... regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of" property in which a foreign country or person has an interest, but only in the presence of an "unusual and extraordinary threat." (Incidentally, violating the IEEPA was one of Clinton supporter Marc Rich's many transgressions.)
On September 23, 2001, President Bush announced the existence of just such a threat. Executive Order 13224 declared that the "grave acts of terrorism" and the "continuing and immediate threat of future attacks" on the United States constituted a national emergency.
President Bush then froze the assets of twenty-seven groups and individuals, each of which
he designated as specially designated global terrorist groups (SDGT). At the time, the administration earned plaudits from all but the most hardened leftists for its recognition that terrorist money is the ultimate source of terrorist evil; not exactly the root cause so much as the root itself.
The executive order authorized the designation as an SDGT of anyone who: acts "for or on behalf of;" is "owned or controlled by;" assists, sponsors, or provides ". . . services to;" or is "otherwise associated with" a designated terrorist group. The order also provided mechanisms for administrative review of any SDGT designation and for obtaining a license to conduct business with such groups under limited circumstances.
Among the groups specified were terrorist front organizations like the Wafa Humanitarian Organization and the Al Rashid Trust, both linked to jihadists like Hamas and Islamic Jihad. Later included were the Partiya Karkeran Kurdistan (Kurdistan Workers' Party) (PKK) and the Liberation Tigers of Tamil Eelam (LTTE) or Tamil Tigers, whose supporters were the plaintiffs in the lawsuit before Judge Collins.
The PKK is a brutal international Marxist-Leninist revolutionary group dedicated to creating a Kurdish homeland by hook or by crook, and always by violence. It carried out bombings against civilian and military targets, mostly in Turkey. Its founder and leader, terrorist mastermind Abdullah Ocalan, was captured and convicted in Turkey in 1999.
The Tamil Tigers are likewise a violent separatist movement responsible for the deaths of hundreds of civilians, including an especially ghastly shooting in a Buddhist temple in 1985. Seeking an independent state for Sri Lanka's Tamil population, the LTTE most recently killed over one hundred people in a bus bombing in October. While neither of these groups are Islamist, they have proven poisonously lethal.
Nevertheless, Judge Collins stacked the deck in the first paragraphs of her opinion where she described the PKK as "a political organization representing the interests of the Kurds in Turkey, with the goal of achieving self-determination for the Kurds in Southeastern Turkey." Well, that's one way of putting it.
She also depicted the TTLE's "activities" as "political organizing and advocacy, providing social services and humanitarian aid, defending the Tamil people from human rights abuses," oh, and, by the way, "using military force against the government of Sri Lanka."
The court portrayed the particular litigants as "seeking to provide support to the lawful, nonviolent activities" of the PKK and the LTTE.
And while Judge Collins rejected several of the groups' constitutional challenges, she held that the Executive Order "provides no explanation of the basis upon which these twenty-seven groups and individuals were designated." Thus, the president's authority was so vague as to violate the Constitution.
Furthermore, because "the President's designation authority is subject only to his unfettered discretion," the administrative procedure for challenging such designations was found wanting. And just like that, in five crisp paragraphs, the administration's power to designate terrorist groups was suddenly eliminated.
In addition, Judge Collins held that the Executive Order, which prohibits individuals from "otherwise associat[ing] with" the SDTGs, violated the plaintiffs' First Amendment freedom of association. Because the Order did not define what this term meant, it impermissibly "lends itself to subjective interpretation" and improperly "gives the Government unfettered discretion in enforcing it."
In many ways, then, the court piled on to previous recent national security rulings that went against the administration.
The key theme is "unfettered discretion," a term that appears no fewer than 11 times in Judge Collins's opinion. In the minds of many of our nation's jurists, the cardinal sin of the Executive Branch is to arrogate to itself undue prerogative. When the administration seizes excessive authority in matters properly allocated to the other branches, this argument goes, our entire system suffers.
Fair enough - in peacetime and in matters of domestic policy. Our founders unquestionably favored the separation of powers as one of their highest ideals. No single branch ought to dominate any of the others.
But when we are at war, over the course of our history - both legal and political - the president has traditionally enjoyed much greater leeway in setting policy in the national security ambit. Only the executive can act decisively and efficiently in the face of gathering or present threats.
It's therefore especially surprising that the court would strike down President Bush's authority to designate terrorist groups as such. Who is better equipped than the executive - privy as he or she is to top-secret intelligence and an enormous range of information - to make such determinations?
As for Judge Collins's reasoning, there may well be occasions on which the president simply cannot divulge the justification behind labeling a certain organization an SDTG. That very decision could itself implicate national security concerns.
Practically speaking, the ruling marks a victory for terror groups around the globe. If the U.S. cannot effectively uproot the terrorist money tree, it will continue to bestow its fruits on groups ranging from Hezbollah to Al Qaeda to the PKK.
But more fundamentally, this is a major symbolic blow to the War on Terror. If we are not allowed even to define the enemy, how can we possibly hope to defeat him? If we are deprived of the very opportunity to identify the nature of our adversary, we have already fallen into his clutches.
The administration has vowed to appeal this ruling, as it has all of the others it has recently lost. Here's hoping it prevails - for all of our sakes.
Michael M. Rosen, TCS Daily's intellectual property columnist, is an attorney in San Diego.