JURIST - Paper Chase: Federal judge finds parts of terrorist designation order unconstitutional

[JURIST] A US district judge has declared unconstitutional [CCR press release] portions of a 2001 presidential executive order that allowed President Bush "unfettered discretion" to designate organizations as terrorist organizations. In a decision [PDF text] released Tuesday, Judge Audrey Collins ruled that Executive Order 13224 [PDF text; DOS backgrounder], signed twelve days after the Sept. 11 terror attacks, was unconstitutionally vague as it gave the president "unfettered discretion" to effectively "blacklist" terror groups without applying objective criteria in making the designation. Collins said that portions of the order violated the petitioners' First Amendment rights in that it "imposed penalties for mere association" with a designated group, and because several operative terms in the order are so vague as to give the president nearly unlimited power to declare organizations illegal.

The government did not defend the constitutionality of the executive order, but instead attacked the plaintiffs' standing to bring the constitutional challenge, as the organizations they were penalized for associating with, the Liberation Tigers of Tamil Eelam (LTTE) and the Kurdistan Workers' Party (PKK), were designated as terrorist organizations by the secretary of state and not the president. Collins rejected that argument, writing:

this attempt to challenge Plaintiffs' standing fails to meet Plaintiffs' argument, which is that they may be subject to designation under the President's authority for any reason, including for associating with the PKK and the LTTE, for associating with anyone listed in the Annex, or for no reason. Because the President has used his designation authority in the past, and because there is no apparent limit on his ability to continue to do so, Plaintiffs have standing to bring their constitutional challenge....

Collins ruled that the government cannot block the plaintiffs' assets under the executive order, which was authorized under the International Emergency Economic Powers Act (IEEPA) [PDF text], but did not grant a nationwide injunction. In another controversial ruling in 2004, Collins declared part of the Patriot Act unconstitutional [JURIST report] as impermissibly vague. AP has more.

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