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695 F.Supp. 1474 United States District
Court, S.D. New York. Everett MENDELSOHN,
Riyad H. Mansour, Nubar Hovsepian, Ibrahim Abu-Lughod, Victor A. Ajlouny, et
al., Plaintiffs, v. Edwin MEESE, III, Attorney General of the United States,
Defendant. No. 88 Civ. 2005
(ELP). June 29, 1988. [*1476] COUNSEL: Rudolph W. Giuliani, U.S. Atty., Richard W. Mark, Asst. U.S.
Atty., S.D.N.Y., New York City, John R. Bolton, Asst. Atty. Gen., Mona Butler,
David J. Anderson, Vincent M. Garvey, U.S. Dept. of Justice, Civil Div.,
Washington, D.C., for Atty. Gen. Leonard B. Boudin, Michael Krinsky, David Golove, Nicholas E.
Poser, David B. Goldstein, Rabinowitz, Boudin, Standard, Krinsky &
Lieberman, New York City, for plaintiffs Mendelsohn, et al. ORDER AND OPINION JUDGE: PALMIERI, District Judge: This action for a declaratory judgment, 28 U.S.C.
§§ 2201-2202 (1982), is an attack by sixty five United States
citizens and organizations on the constitutionality of the Anti-Terrorism Act
of 1987 [FN1] (the “ATA”). The ATA is discussed extensively
in this court’s opinion in United States v. PLO, 695 F.Supp. 1456
(S.D.N.Y.1988), which is filed herewith. Familiarity with that opinion is
assumed. Commenced March 23, 1988, two days after the ATA became effective,
[FN2] this action contains two claims for relief. The first, asserted by Riyad
H. Mansour, challenges the applicability of the ATA to the Permanent Observer
Mission of the Palestine Liberation Organization to the United Nations (the
“Mission”), and, in the alternative, attacks the
ATA’s constitutionality if it is applicable to the Mission. Mansour is
a party to United States v. PLO, ante, because he is a member of the Mission. FN1. Title X of the Foreign Relations
Authorization Act for Fiscal Years 1988-89. Pub.L. 100-204,
§§ 1001-1005, 101 Stat. 1331, 1406- 07; 22 U.S.C.A.
§§ 5201-5203 (West Supp. 1988). FN2. Pub.L. 100-204, Title X, §
1005(a), 101 Stat. 1331, 1407, set out in 22 U.S.C.A. § 5201 note
(West Supp. 1988). The plaintiffs’ second claim seeks a declaratory judgment
that the ATA violates their rights of free speech and association guaranteed by
the First Amendment to the Constitution, as well as the Constitution’s
prohibition of Bills of Attainder. I Background The ATA is aimed explicitly at the Palestine Liberation
Organization (the “PLO”). [FN3] Congress has declared that
the PLO is “a terrorist organization and a threat to the interests of
the United States, its allies, and to international law and should not benefit
from operating in the United States.” 22 U.S.C. § 5201(b).
The ATA, on its face, seriously curbs the operations of the PLO in the United
States. We have today construed the ATA to be inapplicable to the
PLO’s Permanent Observer Mission to the United Nations in order to
avoid conflict with an international obligation of the United States. United
States v. PLO, ante. Nonetheless, there remains the question whether the ATA
violates certain constitutional rights. FN3. By referring to the PLO, the court refers
to “the Palestine Liberation Organization or any of its constituent
groups, any successor to any of those, or any agents thereof.” 22
U.S.C. § 5202. The “agent” aspect of this definition
is limited by our discussion in Part III, infra. The ATA prohibits, with the purpose of furthering the interests of
the PLO: (1) receiving “anything of value except informational
material from the PLO;” (2) expending funds from the PLO; and (3)
establishing or maintaining “an office, headquarters, premises, or
other facilities or establishments within the jurisdiction of the United States
at the behest or direction of, or with funds provided by” the PLO. 22
U.S.C. § 5202. There are four plaintiffs who have alleged, with supporting
affidavits, that they wish to undertake certain activities but have not yet
done so for fear of prosecution under the ATA. Ibrahim Abu-Lughod, a United States citizen, is Chairman of the
Political Science Department at Northwestern University in Evanston, Illinois.
He asserts that he as been asked to attend various meetings throughout the
United States to explain the position and views of the PLO on the current
situation in the Middle East but is unable to do so unless his travel expenses
[*1477] are reimbursed
by the PLO. Victor A. Ajlouny, also a United States citizen, similarly declares
that the Palestine Red Crescent Society, a constituent group of the PLO, has
requested that he undertake a series of speaking engagements in the United
States with its funds. He, too, declares he is unable to do so unless his
travel expenses are paid. Lughod and Ajlouny therefore present the same
claim—that the ATA impermissibly forecloses their right to solicit and
receive funds from the PLO in order to facilitate the exchange of views and
information. Nubar Hovsepian, also a United States citizen, asserts that the
PLO has requested that he establish and maintain an office in the United States
to gather, write and disseminate materials on the subject of the Palestinian
people. He also declares that the PLO has requested him to arrange, through
that office, for speakers and forums in which these subjects will be discussed.
He has sworn that he is prepared to open the office immediately, has laid out
his initial plans for the office’s undertakings and has received a
commitment from individuals for the necessary funding, contingent only on a
determination that it would be lawful under the ATA to open the office.
According to Hovsepian, “this office will not be authorized to present
official views and positions of the PLO, to speak on behalf of the PLO or to
represent the PLO.” Declaration of Nubar Hovsepian, sworn to March 15,
1988, ¶ 13. His proposed office comes within the literal prohibitions
of the ATA—he will establish it “at the behest of”
the PLO and with the purpose of “further[ing] the interests
of” the PLO. 22 U.S.C. § 5202(3). Riyad H. Mansour, a United States citizen who is employed as
Deputy Permanent Observer at the PLO mission, asserts that various
constitutional infirmities require the ATA to be struck down. In light of this
court’s construction of the ATA in United States v. PLO, ante, only
some of Mansour’s claims of unconstitutionality need be reached. The various other plaintiffs present claims that the ATA violates
their rights to receive information and to engage in face to face dialogue. Lamont
v. Postmaster General, 381 U.S. 301, 307, 85 S.Ct. 1493,
1496, 14 L.Ed.2d 398 (1965); see Kleindienst v. Mandel, 408
U.S. 753, 762-63, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972). But for the
ATA, they allegedly would receive information from Hovsepian’s office
and would engage in face to face dialogue with Lughod and Ajlouny. II Standing It is axiomatic that “at an irreducible minimum, Article
III requires the party who invokes the court’s authority to
‘show that he personally has suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendant,’ Gladstone,
Realtors v. Village of Bellwood, 441
U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979), and that the
injury ‘fairly can be traced to the challenged action’ and is
‘likely to be redressed by a favorable decision,’ Simon v.
Eastern Kentucky Welfare Rights Organization, 426
U.S. 26, 38, 41 [96 S.Ct. 1917, 1925, 48 L.Ed.2d 450] (1976).” Valley
Forge Christian College v. Americans United for Separation of Church and State,
Inc.,
454
U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (footnote
omitted). The Attorney General argues that three of the individual
“speaking” plaintiffs—Lughod, Ajlouny and
Hovsepian—do not have standing because the government is “not
now taking any steps to enforce the ATA outside of the PLO Observer Mission
context.” There is no question that, like the plaintiffs in Steffel
v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209,
1215, 39 L.Ed.2d 505 (1974), and Babbitt v. United Farm Workers National
Union,
442
U.S. 289, 301-03, 99 S.Ct. 2301, 2310-11, 60 L.Ed.2d 895 (1979), these
plaintiffs have alleged “an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a
statute.” Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309. The
government asserts, though, that their claims present no more than a
speculative and anticipatory challenge to the statute, [*1478] analogous to
the one rejected by the Eleventh Circuit in Hardwick v. Bowers, 760 F.2d 1202,
1206-07 (11th Cir.1985), rev’d, 478
U.S. 186, 189, 106 S.Ct. 2841, 2842, 92 L.Ed.2d 140 (1986). Some of the
plaintiffs in that case alleged a desire to engage in future conduct which was,
on its face, a violation of a state sodomy statute. They claimed “only
that the existence of the statute along with the arrest of Hardwick [a
homosexual] had ‘chilled and deterred’ them and had
‘interfered’ with decisions regarding their private lives.”
Id.,
760 F.2d at 1206 (emphasis supplied). It was their objection to the
statute’s mere existence which was at the heart of the circuit
court’s decision that the threat of enforcement against them was
merely speculative. We believe this case, in contrast, presents the plaintiffs
with a sufficiently concrete threat of prosecution to require a determination
of their claims. The Attorney General is at this point going forward with an
enforcement action based on the ATA against persons, who, like these
plaintiffs, have indicated a desire to further the interests of the PLO. In
contrast, the statute in Hardwick had not been enforced for many years against
heterosexuals who had engaged in sodomy, but had been enforced against a
homosexual. The Attorney General has refused to stipulate that any actions
taken by the plaintiffs during the pendency of this lawsuit would be protected
from enforcement in the event the statute survives an initial attack, [FN4] or
to allay the plaintiffs’ fears of prosecution by making a
determination that they will not in fact be prosecuted. The Attorney General
has therefore assumed an aggressive litigating posture vis-a-vis these very
individuals. The Attorney General’s own position in this lawsuit and its
companion, United States v. PLO, leave this court with no doubt that there
exists a “credible threat of prosecution.” See Virginia v.
American Booksellers Association, Inc., 484
U.S. 383, 108 S.Ct. 636, 642, 98 L.E.2d 782, 794 (1988) (“We are
not troubled by the pre-enforcement nature of this suit. The State has not
suggested that the newly enacted law will not be enforced, and we see no reason
to assume otherwise. We conclude that the plaintiffs have alleged an actual and
well-founded fear that the law will be enforced against them.”); Babbitt,
supra,
442 U.S. at 302, 99 S.Ct. at 2310. FN4. The Attorney General may seek injunctions
and “other equitable relief.” 22 U.S.C. § 5203(b).
Thus the plaintiffs could be forced to disgorge any money they receive from the
PLO during the pendency of this action. We find unpersuasive the government’s argument that these
plaintiffs’ injuries are not capable of judicial redress because their
claim is contingent on the willingness of third parties to provide funding. On
cross-motions for summary judgment, we have no choice but to accept the
uncontradicted affidavit stating that the funding commitment is firm. Fed
R.Civ.P. 56(c); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986). In
addition, the threatened prosecution would leave the plaintiffs unable to
compete for funding from the PLO. 22 U.S.C. § 5202(1).
“Opening the door to the possibility of obtaining sought after
benefits is sufficient to satisfy the redress requirement.” Bullfrog
Films, Inc. v. Wick, 847 F.2d 502, 507 (9th Cir.1988) (citing Regents of
University of California v. Bakke, 438
U.S. 265, 280-81 n. 14, 98 S.Ct. 2733, 2742-43 n. 14, 57 L.Ed.2d 750
(1978)). The government’s request for discovery in hopes of
discrediting the assertion that funds have been committed is therefore not only
too late, but also irrelevant, and is denied. The government argues that the remaining plaintiffs, who allege
that their “listening” rights under the First Amendment are
abridged by the ATA, do not have standing. We agree. Their grievance is, in
many ways, common to all United States citizens. We also believe their reliance
on Kleindienst v. Mandel, supra, is not entirely apt. In Mandel, the Supreme Court
upheld the denial of an alien’s application for a visa to enter the
United States. While most of the plaintiffs in that case were United States
citizens deprived of the “particular qualities inherent in sustained,
[*1479] face-to-face
debate, discussion and questioning,” id. 408 U.S. at 765, 92
S.Ct. at 2583, Mandel himself was also a plaintiff. The fact that a person has
a First Amendment interest does not require a finding that he has standing.
Often the right to receive information will be common to all citizens and will
not give a litigant a sufficient personal stake in the outcome of a case to
sustain a finding of standing. See, e.g., American Booksellers Association
v. Strobel, 617 F.Supp. 699, 704 (E.D.Va.1985), aff’d 802 F.2d 691
(4th Cir.1986), questions of state law certified, Virginia v. American
Booksellers Association, supra, 484 U.S. at — n. 3, 108 S.Ct. at
640 n. 3, 98 L.E.2d at 791 n. 3. [FN5] It is for that reason that, in the First
Amendment context, litigants are “permitted to challenge a statute not
because their own rights of free speech are violated but because of a judicial
prediction or assumption that the statute’s very existence may cause
others not before the court to refrain from constitutionally protected speech
or expression.” Broadrick v. Oklahoma, 413
U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Indeed, in this
case, other litigants raise the issues raised by these plaintiffs. A
consideration of the benefits which would accrue to the
“listening” plaintiffs by the activities of the
“speaking” plaintiffs is necessary in considering the First
Amendment claims of the “speaking” plaintiffs. The “listening”
plaintiffs’ participation in the lawsuit is therefore unnecessary to a
determination of these issues. FN5. We believe the findings of standing in Allende
v. Shultz, 605 F.Supp. 1220, 1222-23 (D.Mass.1985), related opin. aff’d,
845 F.2d 1111, 1116 (1st Cir.1988), and Abourezk v. Reagan, 592 F.Supp. 880,
883-84 n. 10 (D.D.C.1984), vacated, 785 F.2d 1043, 1050 (D.C.Cir.1986),
aff’d by an equally divided court, 481
U.S. 1, 108 S.Ct. 252, 98 L.Ed.2d 1 (1987), are unpersuasive. The
excluded aliens in those cases, as in Mandel, upon which they rely, were in
fact plaintiffs. It was the excluded aliens who suffered an injury in fact and
had a personal stake in the outcome of the litigation. The fact that they did
not have meritorious claims does not speak to the question of their standing.
The discussion of standing in those cases does not take sufficient account of a
legitimate and necessary differentiation between a First Amendment interest in
receiving information on the one hand, and a personal stake in the outcome of a
litigation on the other. For that reason, we find the decision in American
Booksellers compelling. III First Amendment Claims A. First Amendment Interests. At the outset, the court is unpersuaded by the
government’s argument that no First Amendment interests are implicated
here. It is true that the ATA on its face does not purport to
“prohibit, edit or restrain” speech or advocacy. See Meese
v. Keene, 481 U.S. 465,
——, 107 S.Ct. 1862, 1871, 95 L.E.2d 415, 428 (1987). And it
is true that the plaintiffs remain free to say anything they like about the PLO
and to spend as much of their own money as they wish doing so. Nonetheless,
important First Amendment interests are implicated here. The First Amendment
embodies our “profound national commitment to the principle that
debate on public issues should be uninhibited, robust and wide-open.” New
York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,
720, 11 L.Ed.2d 686 (1964). This requires special protection of communication
relating to political affairs. Connick v. Myers, 461
U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 913, 102 S.Ct. 3409,
3425, 73 L.Ed.2d 1215 (1982). The exchange of ideas about the political issues
relating to the PLO is necessarily less robust because of the existence of the
ATA. For instance, Lughod and Ajlouny, unable to travel with funds provided by
the PLO, will not be as able to communicate with other academics as they would
be had the ATA not been passed. In addition, the ATA effectively deprives
Lughod and Ajlouny of the chance to solicit PLO funds. While the rights to
solicit and expend funds are not absolute, the obstruction by the government of
their exercise necessitates a First Amendment analysis. Meyer v. Grant, 486 U.S. —,
108 S.Ct. 1886, 1889-95, 100 L.Ed.2d 425 (1988) (state law prohibiting payment
to petition circulators implicates First Amendment interests of volunteer
petition circulator); [*1480] Village of Schaumburg v. Citizens for a Better
Environment, 444 U.S. 620, 628-32, 100 S.Ct.
826, 831-33, 63 L.Ed.2d 73 (1980) (door to door charitable solicitation); Buckley
v. Valeo, 424 U.S. 1, 24-26, 96 S.Ct. 612, 637-38, 46
L.Ed.2d 659 (1976) (election campaign contribution limits); see Bates v.
State Bar of Arizona, 433 U.S. 350, 363, 97 S.Ct. 2691,
2698, 53 L.Ed.2d 810 (1977) (speech is protected even when it is “in
the form of a solicitation to pay or contribute money”). Also, the
interest of Lughod and Ajlouny’s audience in “sustained,
face-to-face debate, discussion and questioning” raises First
Amendment concerns. Mandel 408 U.S. at 765, 92 S.Ct. at 2583. The fact that
Lughod and Ajlouny “remain free to employ other means to disseminate
their ideas does not take their speech … outside the bounds of First
Amendment protection…. That [the statute] leaves open ‘more
burdensome’ avenues of communication does not relieve its burden on
First Amendment expression.” Meyer v. Grant, supra, 108 S.Ct. at 1891-93
(citing FEC v. Massachusetts Citizens for Life, Inc., 479
U.S. 238, 107 S.Ct. 616, 93 L.Ed.2d 539 (1986)). In addition, Hovsepian’s ability to maintain an office
through which to deliver his message is affected by the ATA. Again, it is true
that he has other means of speaking besides maintaining an office at the
request of the PLO. But to say that these alternatives preclude First Amendment
analysis would be tantamount to saying he has no interest in effective advocacy
in this regard. Without freedom of association, political advocacy as we know
it would be impossible. See Citizens Against Rent Control v. City of
Berkeley, 454 U.S. 290, 296, 299, 102 S.Ct.
434, 437, 439, 70 L.Ed.2d 492 (1981); Buckley v. Valeo, supra, 424 U.S. at 15, 96
S.Ct. at 632 (“effective advocacy of both public and private points of
view is undeniably enhanced by group association”) (quoting NAACP
v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163,
1170, 2 L.Ed.2d 1488 (1958)). And the right of association would be meaningless
without the prospect of organization made possible by maintaining an office.
This is not to say that these rights are absolute, or even that
Hovsepian’s proposed behavior is or is not in fact protected by the
First Amendment, but only that scrutiny under traditional analysis applied to
First Amendment interests is required. See Parts III(B) & (C), infra. The government asserts that because the plaintiffs would be acting
at the behest of the PLO and accepting money from the PLO they are agents of a
foreign power with no constitutional rights. There is strong support for the
general proposition that constitutional rights can rarely, if ever, be invoked
in the face of combined executive and legislative action in the field of
foreign affairs. See Goldwater v. Carter, 444
U.S. 996, 997, 997-98, 100 S.Ct. 533, 533, 533-34, 62 L.Ed.2d 428 (1979)
(statement of Justice Powell); id., 444 U.S. at 1002, 1004 & n. 1, 100
S.Ct. at 536, 537 & n. 1 (statement of Justice Rehnquist); cf. Youngstown
Sheet and Tube Co. v. Sawyer, 343
U.S. 579, 634, 635-37, 72 S.Ct. 863, 869, 870-71, 96 L.Ed. 1153 (1952)
(Jackson, J., concurring). This proposition, like many of the most fundamental
constitutional principles, “is reached not fundamentally on the basis
of … textual exegesis … but on the basis of the total
structure which the text has created.” C. Black, Structure and
Relationship in Constitutional Law 15 (1969). “The actual art of
governing under our Constitution does not and cannot conform to judicial
definitions of the power of any of its branches based on isolated clauses or
even single Articles torn from context.” Youngstown Sheet &
Tube, supra, 343 U.S. at 634, 635, 72 S.Ct. at 869, 870 (Jackson, J.,
concurring). The opinion of Chief Justice Marshall in The Schooner Exchange
v. McFaddon, 11 U.S. (7 Cranch) 116, 136-46, 3 L.Ed. 287
(1812), which established the principles of sovereign immunity in United States
courts before the enactment of the Foreign Sovereign Immunities Act, [FN6]
casts light on these principles. The Chief Justice, relying on the fact that
one sovereign is “in no respect amenable to another,” id. at 136, held foreign
sovereigns immune from suit in [*1481] United States courts. His argument
derived not from any limitation imposed by the text of the Constitution, but
from the relationship between the Constitution and the sovereign. A “foreign
state lies outside the structure of the Union.” Principality of
Monaco v. Mississippi, 292 U.S. 313, 330, 54 S.Ct. 745,
751, 78 L.Ed. 1282 (1934). The same is true of the PLO, an organization whose
status, while uncertain, lies outside the constitutional system. It has never
undertaken to abide by United States law or to “accept the
constitutional plan.” Ibid. No foreign entity of its nature could be
expected to do so. FN6. Pub.L. 94-583, 90 Stat. 2891 (codified at
28 U.S.C. §§ 1602-1611 (1982)). These principles, deriving from the relationship of foreign
entities to the constitutional structure, provide important guidance in this
context. As Professor Damrosch has said, “in addition to the usual
reluctance of courts to intrude into matters of foreign policy, there are
special considerations inherent in the nature of foreign sovereignty and the
relationship of foreign sovereigns to the constitutional structure….”
Damrosch, Foreign States and the Constitution, 73 Va.L.Rev. 483, 518 (1987). It
would make no sense to allow American citizens to invoke their constitutional
rights in an effort to act as official representatives of foreign powers upon
which the political branches have placed limits. Doing so would severely hamper
the ability of the political branches to conduct foreign affairs. Any action
harming the interests of a foreign power could otherwise be challenged in court
as a violation of Americans’ due process or First Amendment rights.
[FN7] Diplomatic relations could not be severed, for the foreign government
could enlist American citizens to act as its representatives. FN7. As a general proposition, the First
Amendment protects speech no matter who the speaker is. First National Bank
of Boston v. Bellotti, 435 U.S. 765,
784-85, 98 S.Ct. 1407, 1420, 55 L.Ed.2d 707 (1978); Lamont, supra, 381 U.S. at 306-07,
85 S.Ct. at 1496. That proposition, though, is not without limitation. For
instance, a political boycott is generally protected by the First Amendment,
but is unprotected when conducted by a labor union. Compare NAACP v.
Claiborne Hardware, supra, 458 U.S. at 911-15, 102 S.Ct. at 3424-26 (1982), with Int’l
Longshoremen’s Ass’n, AFL-CIO v. Allied Int’l, Inc., 456 U.S. 212, 226, 102
S.Ct. 1656, 1664, 72 L.Ed.2d 21 (1982). A limitation would also be applicable to
foreign powers, under our reasoning in this opinion. Nonetheless, the proposition that the Constitution cannot be
invoked to protect speech by an American citizen acting as an official
representative of the PLO disposes of only one of the claims before the court.
Three speaking plaintiffs explicitly deny acting in any sort of official
capacity at all. Only Mansour’s First Amendment claims are barred, for
only Mansour acts as an official of the PLO. We cannot extend the
government’s argument to reach the others. The line between an
official representative of a foreign entity and an agent,
“dominated” and “controlled” by a foreign
power is one we cannot cross, under Communist Party v. Subversive Activities
Control Board, 367 U.S. 1,
95-96, 81 S.Ct. 1357, 1410, 6 L.Ed.2d 625 (1961) (hereinafter
“S.A.C.B.”) As Justice Frankfurter recognized in S.A.C.B., although the
“[m]eans for effective resistance against foreign incursion …
may not be denied to the national legislature … congressional power in
this sphere, as in all spheres, is limited by the First Amendment. Individual
liberties fundamental to American institutions are not to be destroyed under pretext
of preserving those institutions, even from the gravest external
dangers.” Ibid. We cannot agree with the Attorney General that by
associating with or accepting money from the PLO, these American citizens are
put in the same relationship to the Constitution as the PLO itself. If that
were true, the court’s opinion in S.A.C.B. would have been
unnecessary. The Control Board explicitly found that the Communist Party
members were “agents” of Soviet Russia, completely, indeed
“ruthlessly” dominated and controlled. Id., 367 U.S. at 42-54,
81 S.Ct. at 1382-88. Here, too, the assertion of the government that these
American citizens are agents of the PLO, while pertinent to the
court’s assessment of the merits of their First Amendment argument,
see Part III(C), infra, does not prevent the [*1482] application of
the First Amendment to the statute under attack. B. The Level of Scrutiny. A content based restriction on political speech in a public forum
is “subjected to the most exacting scrutiny.” Boos v.
Barry,
485 U.S. —, 108 S.Ct. 1157, 1164, 99 L.E.2d 333, 345 (1988). In
contrast, an incidental restriction on speech—one which is not aimed
explicitly at the content of speech or at prohibiting all speech about a
subject, but rather at some other object—is subject to a somewhat more
deferential inquiry. See City Council of Los Angeles v. Taxpayers for
Vincent,
466 U.S. 789, 804-05,
104 S.Ct. 2118, 2128, 80 L.Ed.2d 772 (1984) (quoting United States v.
O’Brien, 391 U.S. 367,
376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968)). We believe the
appropriate inquiry is framed by O’Brien and its progeny, rather than
the exacting standard applied most recently in Boos v. Barry and Meyer v.
Grant, supra. The ATA does not, on its face, single out for punishment advocacy
of the PLO’s doctrines. See Brandenburg v. Ohio, 395 U.S. 444, 448-49, 89
S.Ct. 1827, 1830, 23 L.Ed.2d 430 (1969). Instead, the ATA prohibits specific
activities: the receipt and expenditure of funds from the PLO and the
maintenance of an office on behalf of the PLO. The ATA is directed at hampering
the operations—speech-related or not—of a foreign entity, the
PLO. Under the ATA’s terms, a person can buy neither a newspaper
advertisement nor any other item with PLO funds (assuming he possesses the requisite
intent). While there is no question that these prohibitions have an effect on
the free flow of information, the prohibitions are not themselves aimed at the
flow of information. They are aimed at the PLO. In this regard, this case is
fundamentally different from cases like Buckley v. Valeo, 424 U.S. 1, 15-17, 96 S.Ct.
612, 632-33, 46 L.Ed.2d 659 (1976), Bellotti, supra, 435 U.S. at 788-92,
98 S.Ct. at 1422-24 and Meyer v. Grant, supra, 108 S.Ct. at 1899-
95. Buckley was a comprehensive challenge to the 1974 amendments to the
Federal Election Campaign Act, which placed significant limitations on the
contribution and expenditure of funds in federal election campaigns. In
rejecting the applicability of O’Brien’s incidental
restriction analysis, the Court explained that it had “never suggested
that the dependence of a communication on the expenditure of money operates
itself to introduce a non-speech element or to reduce the exacting scrutiny
required by the First Amendment.” Buckley, 424 U.S. at 16, 96
S.Ct. at 633. At the heart of that analysis lies a determination that a statute
explicitly limiting participation in election campaigns is aimed at speech. The
fact that the expenditure of money is involved cannot work to shield the
statute from the exacting scrutiny applied to such acts. The same conceptions
underlay the Court’s opinion in Bellotti, which also addressed
electoral spending prohibitions. And, in applying strict scrutiny, the
Court’s recent opinion in Meyer v. Grant presents, in this
respect, the same fundamental principle: the state law at issue in that case
prevented the payment of money to circulators of petitions in favor of the
consideration of initiatives in referendum elections. In order for an
initiative to be considered in an election, a minimum number of petition
signatures was required. The prohibition at issue in Meyer v. Grant thus was aimed
directly at the petition circulating process—a process traditionally
associated with the discussion and debate of political issues. Id., 108 S.Ct. at
1886-88. Again, although the ATA undoubtedly has an incidental effect on the
free flow of information, it is not directed at speech itself. The ATA’s mens rea requirement, that the actor have the
purpose of furthering the interests of the PLO, does not make it a content
based restriction on speech. That requirement does not distinguish between
speech in favor of or against any particular ideology. Again, it is certainly
true that the ATA’s effect on speech will be lopsided, but this is not
a prohibition which distinguishes between kinds of speech based upon their
content, nor one which is aimed at prohibiting or limiting categories of
speech. Justice O’Connor’s [*1483] discussion of a
statute which did do so, in Boos v. Barry, is instructive: Whether individuals may picket in front of a foreign embassy
depends entirely upon whether their picket signs are critical of the foreign
government or not. One category of speech has been completely prohibited within
500 feet of embassies. Other categories of speech, however, such as favorable
speech about a foreign government, or speech concerning a labor dispute with a
foreign government, are permitted. Id., 108 S.Ct. at 1162, 99 L.Ed.2d at 343. [FN8] FN8. That part of Justice
O’Connor’s opinion was joined by two Justices. Two other
Justices joined in the conclusion reached in that part of the opinion but wrote
separately to voice opposition to her application of the “secondary
effects” analysis developed in City of Renton v. Playtime Theaters,
Inc.,
475 U.S. 41, 106 S.Ct.
925, 89 L.Ed.2d 29 (1986), a case about zoning restrictions on adult oriented
motion picture theaters. Boos v. Barry, 485 U.S. at —, 108 S.Ct. at
1171, 1171- 72, 99 L.E.2d at 353, 353-54 (Brennan, J., joined by Marshall, J.,
concurring in part and concurring in the judgment). In essence, we believe that this statute is not a content based
restriction directed at speech, and need not be subject to the “most
exacting scrutiny.” Id., 485 U.S. at —, 108 S.Ct. at 1164,
99 L.E.2d at 345. C. Assessment of the ATA under O’Brien. Pursuant to the teachings of United States v. O’Brien,
supra,
391 U.S. at 377, 88 S.Ct. at 1679, government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an important or
substantial government interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incidental restriction of
alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest. Ibid. While the First Amendment does not require the ATA to be struck
down, it defines parameters upon the permissible construction of the ATA. We
find that the ATA permissibly restricts the transfer of funds to Lughod and
Ajlouny, but should not be construed to prohibit Hovsepian’s proposed
office. There is no question that the ATA was passed pursuant to a grant
of legislative authority under Article I. [FN9] Although it has been argued
that the ATA is a legislative encroachment of executive authority to conduct
foreign affairs, we believe that inquiry into that matter—unnecessary
to the decision regarding the PLO mission itself—would be unwise in
this context. Holtzman v. Schlesinger, 484 F.2d 1307, 1309-12 (2d Cir.1973), cert.
denied, 416 U.S. 936, 94 S.Ct. 1035, 40 L.Ed.2d 286 (1974); Crockett v.
Reagan,
558 F.Supp. 893, 898-99 (D.D.C.1982), aff’d, 720 F.2d 1355
(D.C.Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839
(1984); Atlee v. Laird, 347 F.Supp. 689, 705-06 (E.D.Pa.1972) (three judge court),
aff’d mem., 411
U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973); see generally Baker v.
Carr,
369 U.S. 186, 211-13,
82 S.Ct. 691, 706-08, 7 L.Ed.2d 663 (1962). We are aware of no case striking
down federal legislation as an encroachment of the executive’s
authority to conduct foreign affairs, and counsel for the plaintiffs has not
brought any to our attention despite a specific inquiry to him at oral
argument. There appears, therefore, no jurisprudence in this area, despite the
existence of much legislation which has been criticized as an encroachment upon
presidential authority to conduct foreign affairs. E.g. War Powers Resolution,
Pub.L. 93-148, 87 Stat. 555 (codified at 50 U.S.C. §§
1541-1548 (1982)) (requiring expanded role of Congress in decisions regarding
deployment of armed forces abroad); National Security Act of 1947, ch. 343, 61
Stat. 495 (codified as amended at 50 U.S.C. §§ 401-432
(1982)) (establishing comprehensive national security program, including
Department of Defense, Central Intelligence Agency and National Security
Counsel, and providing for Congressional oversight of these agencies); see also
§ 1013 of the Department of State Authorization Act for 1985, Pub.L.
98-164, 97 Stat. 1062 (codified at [*1484] 50 U.S.C. § 1546a (Supp. I
1983)) (providing for expedited procedures in Congressional action requiring
the removal of armed forces engaged in hostilities outside the United States). FN9. U.S. Const. Art. I, § 8, cl. 1,
cl. 3, cl. 10, cl. 18. Several cases speak of the President’s broad power to
conduct foreign affairs, observing that he is the “sole organ of the
federal government in the field of international relations.” The best
known are United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57
S.Ct. 216, 221, 81 L.Ed. 255 (1936), and United States v. Pink, 315 U.S. 203, 229, 62
S.Ct. 552, 565, 86 L.Ed. 796 (1942). [FN10] However, none of these cases
provides guidance here. Curtiss-Wright, for instance, despite its sweeping language
about presidential authority, held that Congress could delegate decision making
authority to the President in the area of foreign affairs without the kind of
standards necessary for a constitutional delegation in domestic legislation. It
did not speak to the division of power between the branches. Pink addressed
only the division between the states and the federal government, holding that a
state may not undermine federal policy in the area of foreign affairs. The case
before us, in contrast, concerns the division of foreign affairs power between
Congress and the President—a power which is certainly shared, though
the specific boundaries have never been drawn. [FN11] FN10. See also Haig v. Agee, 453 U.S. 280, 289 &
n. 17, 101 S.Ct. 2766, 2773 & n. 17, 69 L.Ed.2d 640 (1981); Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410, 84
S.Ct. 923, 931, 11 L.Ed.2d 804 (1964); Harisiades v. Shaughnessy, 342 U.S. 580, 589 &
n. 16, 72 S.Ct. 512, 519 & n. 16, 96 L.Ed. 586 (1952); Chicago &
Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68
S.Ct. 431, 436, 92 L.Ed. 568 (1948). FN11. Justice Jackson specifically recognized
the general inapplicability of these cases to the question of division of power
between the executive and legislative branches. Youngstown Sheet & Tube,
supra,
343 U.S. at 634, 635 n. 2, 72 S.Ct. at 869, 870 n. 2. Indeed the lack of a
defined division of power in this area is a common theme. See generally E.
Collier, Foreign Policy Roles of the President and Congress, Cong. Research
Serv. Rep. No. 86-163 F (1986); 1 Restatement (Third) Foreign Relations Law of
the United States § 1, Reporters’ Note 3 (1988). We believe the courts have left that matter to the political
interplay of the other branches. See Orlando v. Laird, 443 F.2d 1039, 1043
(2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971). In
addition, there is some merit to the suggestion that inquiry into this area is
especially unwise where, as in this case, Congress and the President have acted
in unison and no constitutional impasse has been presented. Goldwater v.
Carter, supra, 444 U.S. at 997, 997, 100 S.Ct. at 533, 533 (statement of
Justice Powell). We are therefore constrained to conclude that for purposes of
First Amendment analysis the passage of the ATA was within Congress’
constitutional power. The avowed interest asserted by Congress in favor of the ATA is a
tactical one—to deny the PLO the benefits of operating in the United
States. 22 U.S.C. § 5201(b). The interest is not one related to the
suppression of speech, as where picketing is prohibited or election campaign
contributions are regulated, for instance. There are, of course, many benefits
which accrue to organizations operating in the United States, including political
stability, access to our press and capital infrastructure, and, as some members
of Congress noted, the patina of legitimacy. [FN12] These benefits flow, at
least in part, from our national commitment to the rule of law and our respect
for individual liberties. In light of the many terrorist acts around the world
for which credit has been claimed in the name of the PLO, we cannot say
Congress was unreasonable in concluding that those commitments are not shared
by the PLO, and that important American interests would be served by denying
the PLO the benefit of operating in an environment fostered by that commitment.
In the area of foreign affairs, a declaration by the coordinate branches of
what is or is not in our national interest merits our deferential [*1485] respect. Haig
v. Agee, supra, 453 U.S. at 307, 101 S.Ct. at 2782; Harisiades v.
Shaughnessy, supra, 342 U.S. at 589, 72 S.Ct. at 519. There is at least a rational
basis for the ATA, and a substantial and important government interest
unrelated to the suppression of speech. It is tied up in the foreign policy
goals of our nation: while it has an incidental effect on speech, the benefits
denied the PLO go far beyond the benefits of free speech. It is this
substantial interest that the ATA furthers. FN12. 133 Cong.Rec. H 11,425 (daily ed.
December 15, 1987) (statement of Rep. Burton) (“Legitimacy is a
terrorist organization’s greatest asset.”); accord 133
Cong.Rec. S 6,451 (daily ed. May 14, 1987) (statement of Sen. Karnes). Other interests, announced on the floor of Congress, are
irrelevant to our analysis of the ATA. The prevention of terrorism in the
United States, [FN13] and sending a message, [FN14] were mentioned. It is
clear, however, that the ATA’s restrictions on First Amendment
freedoms are far greater than essential for furthering these interests. Indeed,
the United States Attorney conceded at oral argument that there is no evidence
that the PLO Mission has misused its position in any way for terrorist
purposes. Transcript of oral argument, p. 18 (June 8, 1988). The prevention of
terrorism is accomplished through statutes making it illegal. [FN15] Messages
relating to foreign affairs can be as easily and effectively sent using the
Concurrent Resolution process. [FN16] FN13. 133 Cong.Rec. S 13,854 (daily ed.
October 8, 1987) (statement of Sen. Lautenberg) (“there is a real fear
that these offices in Washington and New York might be used as bases for
terror”); 133 Cong.Rec. S 8, 776 (daily ed. June 25, 1987) (statement
of Sen. Simon) (“restriction of terrorism”); 133 Cong.Rec. S
6,450 (daily ed. May 14, 1987) (statement of Sen. Lautenberg); id. S 6,448-49 (statement
of Sen. Dole). FN14. 133 Cong.Rec. S 13,852 (daily ed.
October 8, 1987) (statement of Sen. Grassley) (“That message is if the
PLO wants to participate in the diplomatic process, the first step must be to
renounce terror. It is this, and nothing more or less, that motivates our
actions.”); id. S 13,854 (statement of Sen. Lautenberg); 133 Cong.Rec. S
6,450 (daily ed. May 14, 1987) (statement of Sen. Lautenberg); 133 Cong.Rec. E
1,635 (daily ed. April 29, 1987) (statement of Rep. Kemp). FN15. E.g. 18 U.S.C. Ch. 37,
§§ 792 to 799 (1982 & Supp. IV 1986) (Espionage); id. Ch. 105,
§§ 2151 to 2157 (1982 & Supp. II 1984) (Sabotage); 49
U.S.C.A.App. §§ 1472(i) to 1472(o) (West Supp. 1988)
(aircraft hijacking and piracy); 18 U.S.C.A. § 2331 (West Supp. 1988)
(terrorist acts abroad against United States nationals); 18 U.S.C.
§§ 351, 1751 (1982 & Supp. IV 1986) (kidnapping and
assassination of Congressmen, Supreme Court Justices and the President); id. Ch. 81,
§§ 1651 to 1661 (1982) (Piracy); id. Ch. 115,
§§ 2381 to 2391 (1982 & Supp. II 1984) (Treason, Sedition
and Subversive Activities); id. § 831 (1982) (transactions involving
nuclear materials); id. Ch. 40, §§ 841 to 847 (1982 &
Supp. II 1984) (importation, maintenance, distribution and storage of
explosives). See also Foreign Intelligence Surveillance Act, Pub. L. 95-511, 92
Stat. 1783 (codified, as amended, at 50 U.S.C. §§ 1801 to
1811 (1982 & Supp. II 1984)). FN16. See 133 Cong.Rec. S 13,853 (daily ed.
October 8, 1987) (statement of Sen. Bingaman) (“We have a
responsibility to call the attention of the world to their hateful
acts…. And I have consistently supported senate bills and resolutions
to that effect.”); E. Collier, supra n. 11, pp. 19-21
(discussing particularly effective resolutions), e.g. S. Res. 345, 99th Cong.,
2d Sess., 132 Cong.Rec. S 1,338 (daily ed. February 19, 1986) (sense of the
Senate that the election of Ferdinand Marcos in the Philippines was marked by
such widespread fraud that it could not be considered a fair reflection of the
will of the Philippine people). The plaintiffs have urged us to undertake an inquiry into
Congress‘ supposedly impermissible motive by pressing the argument
that Congress’ “real” purpose was in fact the
suppression of speech. [FN17] That kind of inquiry is, under O’Brien,
inappropriate in this context. The Court in O’Brien was faced with a
similar argument and rejected it. O’Brien, supra, 391 U.S. at 382-85,
88 S.Ct. at 1681-84. If Congress has exercised a legitimate power, examination
of its alleged ulterior speech suppressing motives is irrelevant. We conclude
that the ATA furthers a “substantial or important government
interest.” O’Brien, supra, 391 U.S. at 377, 88
S.Ct. at 1679. FN17. See, e.g., 133 Cong.Rec. S 12,854 (daily
ed. October 8, 1987) (statement of Sen. Grassley) (“I think we ought
to think twice before extending the first amendment right to foreign entities
using our soil … to carry out acts of terrorism or even preach that.”);
133 Cong.Rec. E 2,249 (daily ed. June 4, 1987) (statement of Rep. Gallegly)
(“it is ludicrous to allow the PLO free reign to spread their ideology
of hate and violence”); 133 Cong.Rec. H 4,047 (daily ed. May 28, 1987)
(referring to PLO ability to “distribute its propaganda”). The prohibitions related to spending and receiving the
PLO’s money are [*1486] essential to Congress’ goal of denying the
PLO the benefits of operating in the United States. We can perceive no alternative
through which Congress could be expected to implement it. Moreover, Congress,
as much as was possible, tailored the prohibitions of the ATA to assure that
its impact would fall upon the PLO. As we have already pointed out, the ATA
includes a mens rea element and its prohibitions, therefore, are unlawful only
when undertaken with the purpose of furthering the PLO’s interests. It
also has a specific exemption for informational materials, which protects the
interests of American citizens. See Lamont, supra. The incidental
effect on the capacity of Lughod and Ajlouny to participate in the discussion
of the important issues on which they are experts, while arguably lamentable,
is permissible. Hovsepian presents a different situation. The ATA, read in the
broadest possible way, prohibits Hovsepian from establishing or maintaining his
proposed informational office at the behest of the PLO. Hovsepian has
specifically averred that he will in no way be acting as an official of the
PLO. But he does wish to further the PLO’s interests; and the PLO has
requested him to open his office. Were the ATA to be read to prohibit that
course of action, it would violate the requirement that the restriction be no
greater than essential. It would be prohibiting Hovsepian from operating in the
United States, not the PLO. The words “behest” and
“direction” need not be given the broadest reading possible.
Indeed, a more limited approach appears consistent with congressional intent. The ATA’s proponents apparently made a distinction
between maintaining contact with the PLO on the one hand, and acting as an
official of the PLO or being paid by it on the other. As Senator Grassley put
it, the ATA does not “prohibit contact with the PLO. It prohibits only
a principal agency relationship between the PLO and American
citizens.” [FN18] Instructing the House conferees to accept the ATA,
Representative Burton explained, “the bill prohibits paid agents from
operating an official office on U.S. soil.” [FN19] Those who spoke to
the limits of the ATA thus articulated at least some distinction based on an
official relationship with or the receipt of payment from the PLO. The only
member of Congress to argue against such a limiting interpretation was Senator
Bingaman, a vigorous opponent of the ATA. [FN20] Certainly it is possible that
in his zeal to defeat the ATA, Senator Bingaman put too expansive a gloss on
the permissible interpretation. See Ernst & Ernst v. Hochfelder, 425 U.S. 185, 204 n. 24,
96 S.Ct. 1375, 1386 n. 24, 47 L.Ed.2d 668 (1976) (quoting NLRB v. Fruit
& Vegetable Packers & Warehousemen, 377 U.S. 58, 66, 84 S.Ct.
1063, 1068, 12 L.Ed.2d 129 (1964)). FN18. 133 Cong.Rec. S 13,854 (daily ed.
October 8, 1987) (emphasis supplied). FN19. 133 Cong.Rec. H 8,790 (daily ed. October
20, 1987); accord 133 Cong.Rec. H 11,425 (daily ed. December 15, 1988)
(statement of Rep. Burton) (“official paid agents”). FN20. 133 Cong.Rec. S 13,852 (daily ed.
October 8, 1982). The ATA must be read to allay the problematic limitations on
speech which would otherwise ensue, where, as here, Congress has not expressed
a contrary intent. See Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Construction Trades Council, 463 U.S. 147, 108 S.Ct.
1392, 1297-98, 99 L.E.2d 645, 654-55 (1988). So long as Hovsepian does not act
in an official capacity as a representative of the PLO, so long as he does not
accept funds from the PLO, he will not have violated the ATA. [FN21] FN21. These would obviously be questions of
fact in any subsequent enforcement proceeding under general application of the
ATA. IV The ATA as a Bill of Attainder The plaintiffs argue that the ATA is a Bill of Attainder. Although
the act raises grave concerns in this respect, we conclude that the ATA cannot
be struck down on these grounds. [*1487] Article I of the Constitution forbids the passage of Bills
of Attainder by Congress. [FN22] That prohibition stands in sharp contrast to
the practice at English common law, where legislative enactments directed at
individuals or classes of individuals were enforced by the English courts
without indictment or trial. Although the phrase “bill of
attainder” originally referred only to a penalty of death inflicted by
a legislative body upon a named individual, the United States Supreme Court
has, for more than a century and a half, considered the constitutional
prohibition to cover a much wider field. See Cummings v. Missouri, 71 U.S. (4 Wall.) 277,
323-24, 18 L.Ed. 356 (1867); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 132,
3 L.Ed. 162 (1810) (Marshall, C.J.) (“a bill of attainder may affect
the life of an individual, or may confiscate his property, or may do
both”). The Court has thus focussed both on whether punishment is
inflicted and on whether the bill singles out an individual or fairly
identifiable class. In Cummings, the Court noted that “[b]ills of
this sort … have been most usually passed in England in times of
rebellion, or … violent political excitement; periods in which all
nations are most liable … to forget their duties, and to trample upon
the rights and liberties of others.” Cummings, supra, 71 U.S. (4 Wall.) at
323 (quoting J. Story, Commentaries on the Constitution § 1344, at 217
(5th ed. 1891)). FN22. U.S. Const. art. I, § 9, cl. 3
(“No Bill of Attainder or ex post facto Law shall be
passed.”); see also U.S. Const. art. I, § 10, cl. 1
(“No State shall … pass any Bill of
Attainder….”). Indeed, American experience bears witness to Justice
Story’s observation. See United States v. Brown, 381 U.S. 437, 85 S.Ct.
1707, 14 L.Ed.2d 484 (1965) (statute forbidding members of the Communist Party
to serve as officer or employee of a union); United States v. Lovett, 328 U.S. 303, 66 S.Ct.
1073, 90 L.Ed. 1252 (1946) (three named government employees deprived of
compensation because they were “subversives”); Ex Parte
Garland,
71 U.S. (4 Wall.) 333,
18 L.Ed. 366 (1867) (attorneys practicing in federal courts required to take an
oath that they had never aided the Confederacy); Cummings, supra (similar oath
required for “priests and ministers of religion”). The laws
struck down in Brown, Lovett, Garland, and Cummings were enacted either
at times of national crisis or when the attention of Congress was drawn by
public clamor to problems of widespread interest. In Cummings and Garland, the
laws in question reflect the emotions and the punitive reconstruction policies
during the post Civil War period. In Lovett, the statute at issue
was passed in the midst of World War II and in the wake of wholesale
investigations of federal employees. It was aimed at the removal from public
office of three particular government employees deemed by Congress to be
“subversive.” In Brown the law was passed during a time when
the Communist label was widely equated with subversion and Congress wished to
purge the governing boards of unions affecting interstate commerce of a
Communist presence. The ATA reflects a sense of outrage entertained by a wide segment
of the American people and their elected officials concerning the crimes of
foreign terrorists. [FN23] On its face, it is an accusatory document penalizing
PLO employees by closing their offices and effectively terminating their activities
in the United States. Having been effectively singled out by Congress, they are
left without any right of reply or appeal, without right to confront their
accusers or submit evidence in an adversarial proceeding. They are terrorists
by statutory implication but without the slightest proof of their involvement
in terrorism. In short, they are subjected to penalties without the panoply of
protective shields vouchsafed even to criminal aliens [*1488] by the federal
courts in criminal trials. [FN24] FN23. See 133 Cong.Rec. S 13,853 (daily ed.
October 8, 1987) (statement of Sen. Grassley); S 13,851 (statement of Sen.
Bingaman); id. at E 2,249 (daily ed. June 4, 1987) (statement of Rep.
Gallegly); id. at H 4,047-48 (daily ed. May 25, 1987); id. at S 6,451 (daily ed.
May 14, 1987) (statement of Sen. Karnes); id. at E 1,635 (daily
ed. April 29, 1987) (statement of Rep. Kemp). FN24. The Constitution does not except
non-citizens from the protections of the due process clause. Yick Wo v.
Hopkins,
118 U.S. 356, 368-70, 6
S.Ct. 1064, 1070-71, 30 L.Ed. 220 (1886). The language prohibiting bills of
attainder is sweeping, and the Supreme Court’s interpretations of it
have been expansive. We believe there is little doubt that the ban applies to
bills of attainder directed at non-citizens. See Flemming v. Nestor, 363 U.S. 603, 612-21, 80
S.Ct. 1367, 1373-78, 4 L.Ed.2d 1435 (1960) (addressing and rejecting merits of
bill of attainder attack by an alien, with no discussion of alien’s
right to invoke bill of attainder clause). The ATA and the statutes struck down in Brown, Lovett, Garland and Cummings underscore the evil
foreseen by the Founders and sought to be remedied by the Bill of Attainder
clause. Alexander Hamilton wrote: Nothing is more common than for a free people, in times of heat
and violence, to gratify momentary passions, by letting into the government
principle and precedents which afterwards prove fatal to themselves. Of this
kind is the doctrine of disqualification, disfranchisement, and banishment by
acts of the legislature. The dangerous consequences of this power are
manifest…. [I]f it may banish at discretion all those whom particular
circumstances render obnoxious, without hearing or trial, no man can be safe
nor know when he may be the innocent victim of a prevailing faction. The name
of liberty applied to such a government, would be a mockery of common sense.
[FN25] FN25. The passage is quoted in United
States v. Brown, supra, 381 U.S. at 444, 85 S.Ct. at 1712 (quoting John C.
Hamilton, History of the Republic of the United States 34 (1859) (quoting
Alexander Hamilton)). See also The Federalist No. 78 (Hamilton) at 466 (Rossiter
ed. 1961) (“Without [limitations such as the ban on bills of
attainder], all the reservations of particular rights would amount to
nothing.”); id. No. 44 at 282 (“Bills of attainder …
are contrary to the first principles of the social compact, and to every
principle of sound legislation….”). Much of the reason for our Nation’s departure from
English historical practice in this regard can be viewed as flowing from the
structure of our Constitution, which requires the maintenance of a separation
of the powers of government. Indeed, the two were linked as early as the battle
for ratification of the Constitution itself. The Federalist No. 84 at 510-12
(Hamilton) (Rossiter ed. 1961); see generally id. Nos. 47-51 (Madison’s
classic series regarding the separation of powers). We believe the ATA would present a classic Bill of Attainder were
it not for the fact that, as we construe it, it is an exercise of
Congress’ foreign affairs powers. A basic tenet of our constitutional
government is that the three branches of our government should be kept separate
and independent of each other without encroachment of one upon the other and
without the delegation of power from one to the other. The ban on bills of
attainder can be viewed as an implementation of the doctrine of separation of
powers. In Brown, the Court adopted that interpretation, in its instruction that
the ban on bills of attainder is not to be construed as “a narrow,
technical (and therefore soon to be outmoded) prohibition, but rather as an
implementation of the separation of powers, a general safeguard against
legislative exercise of the judicial function, or more simply—trial by
legislature.” Brown, 381 U.S. at 442, 85 S.Ct. at 1711-12. The
value of a ban on bills of attainder to a system of separated powers was
described by Professor Tribe as reflecting “not only the judgment of
the Framers that the legislative branch of government presented the greatest
potential threat to liberty, but also the further conviction that no branch
should be empowered unilaterally to inflict a serious hardship on particular
individuals or groups.” L. Tribe, American Constitutional Law
§ 10-6, at 657 (2d ed. 1988). [FN26] FN26. In his classic first edition, Professor
Tribe stated: “By restricting the legislative process to the
formulation of general rules, the bill of attainder clauses would guarantee an
institutional fractionalization of power.” L. Tribe, American
Constitutional Law § 10- 5, at 491 (1978). An equally important set of implications flows from the fact, as
we have pointed out in Part III(A), supra, that the PLO, as a foreign entity,
stands outside the structure [*1489] of our constitutional system. Were it
not for that fact, the line of demarcation between legislative and judicial
functions would be pierced in this instance. Under the heading of
“findings,” Congress declared that the PLO is a terrorist
organization responsible for a number of murders as well as piracy on the high
seas. 22 U.S.C. § 5201(a). Congress set forth, as
“determinations,” a statement that the PLO “should
not benefit from operating in the United States.” Id. § 5201(b).
Congress has therefore declared the PLO unlawful and rendered it unable to act
as an organization in the United States. But in doing so, it has inflicted
punishment on those few individuals in this country officially affiliated with
the PLO, here by invitation of the United Nations—an invitation in
which the United States has long acquiesced. These individuals suffer the kind
of deprivation of livelihood which implicates the Bill of Attainder clause. Lovett,
supra;
Garland, supra; Cummings, supra. The government argues that this Act prohibits future conduct only,
and that any individual in the United States may avoid its operation by
modifying his conduct. See Selective Service System v. Minnesota Public
Interest Research Group, 468
U.S. 841, 853, 104 S.Ct. 3348, 3355, 82 L.Ed.2d 632 (1984). That argument
places the form of the ATA above its substance. It deprives a specific group of
individuals of rights based on past conduct, as found by Congress. It does so,
it is true, by prohibiting future conduct. But the crux of the bill is not to
prevent conduct thought to be dangerous to the populace, but to inflict
punishment upon a select few. The provisions struck down in Cummings, Garland,
Lovett, and Brown also prohibited future conduct, but on the basis of the fixed
status of certain individuals. Those persons, too, could have avoided the
application of the unconstitutional laws by ceasing to engage in their chosen
occupations. That did not save those acts and it would not save this one. This
Act, as the government construes it and seeks to enforce it, purports to
prohibit only future conduct, but has the effect of inflicting punishment upon
the PLO, its members and affiliates with only a pro forma judicial inquiry. As
so construed, Congress has left almost nothing for the federal courts to do but
lend their authority to the injunction sought by the Attorney General. The
alleged undisputed facts [FN27] put forth by the government in support of its
summary judgment motion, Fed.R.Civ.P. 56; S. & E.D.N.Y. Local R. 3(g), do
little more than serve as the means of identification of defendants already
prejudged and penalized by the statute. Such a broad adjudicative role for
Congress, and such a minimal role for the court would not be consonant with the
limitation placed upon the courts by Article III of the Constitution that only
“cases” or “controversies” be decided. See United
Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 90, 67 S.Ct.
556, 564, 91 L.Ed. 754 (1947) (“Judicial adherence to the doctrine of
the separation of powers preserves the Courts for the decision of issues
between litigants, capable of effective determination.”). FN27. For instance, the defendants are
affiliated with the PLO; they and the PLO maintain the PLO Observer Mission
with the purpose of furthering the interests of the PLO; they are present in
New York. The federal courts cannot be turned into an instrumentality of
almost blind enforcement by legislative enactment, separate and apart from
their traditional procedures. The ATA prescribes for the Courts a function of
enforcement against individual defendants and persons classified as terrorists,
affording them little more than notice of an impending penalty. Nevertheless, the ATA does not violate the Bill of Attainder
clause. It can be construed as an appropriate exercise of Congress’
powers, operating, as we have explained above and in the related opinion, United
States v. PLO, ante, to curb the PLO itself in the United States and not its Mission
and its personnel at the United Nations. In this sense, it withstands First
Amendment scrutiny and does not violate the Bill of Attainder clause. [*1490] The PLO is the subject of this legislation. It effectively
penalizes individuals only in prohibiting them from acting in an official
capacity as representatives of the PLO. Congress must have the power to do
that, since the PLO, as a foreign political entity, stands outside our
constitutional structure. See Damrosch, supra, 73 Va.L.Rev. at
515-34. Severing diplomatic relations with any nation, or declaring war against
any nation, works hardships on American citizens employed by the foreign power
or acting as its official representatives. But Congress may force an American
citizen to choose between the full panoply of protections offered by the
Constitution and voluntarily taking on an official role in the operations of a
foreign power. See U.S. Const. art. I, § 9, cl. 8 (prohibiting U.S.
citizens from accepting titles, presents or emoluments from foreign governments
without the consent of Congress); 18 U.S.C. § 959 (1982)
(criminalizing enlistment in foreign governmental service). See also 8 U.S.C.
§ 1481(a)(4)(B) (Supp. IV 1986) (mandating loss of U.S. citizenship
for accepting, serving in or performing the duties of an office under a foreign
government for which an oath of allegiance is required); Vance v. Terrazas, 444 U.S. 252, 263, 100
S.Ct. 540, 546, 62 L.Ed.2d 461 (1980) (statutorily defined voluntary act of
expatriation, accompanied by intent to relinquish citizenship, sufficient to
terminate U.S. citizenship). V Conclusion The Anti-Terrorism Act, in order to survive constitutional
scrutiny, must be interpreted narrowly. It may permissibly put a halt to the
operations of the PLO in the United States apart from the Mission to the United
Nations, and we so hold in United States v. PLO, ante. But we do not read
it as prohibiting an information office of the nature proposed by
Hovsepian—one which accepts no money from the PLO and in no sense
purports to act in any kind of official capacity for the PLO. Thus narrowed,
the Anti-Terrorism Act does not violate the limitations placed upon Congress by
the First Amendment and the Bill of Attainder clause. Summary judgment is granted in favor of Hovsepian. Summary judgment, as requested by Lughod and Ajlouny, is denied. Summary judgment, as requested by Mansour, is granted in part, see
United States v. PLO, ante, and denied in part. The action is dismissed with respect to the remaining plaintiffs
for lack of standing. SO ORDERED. |