FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellant,

AMERICAN CIVIL LIBERTIES

UNION OF NORTHERN CALIFORNIA

INC; THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS; AND

CALIFORNIA ATTORNEYS FOR

CRIMINAL JUSTICE, No. 02-50355

Intervenors, D.C. No. 

v. CR-01-00209-RMT

HOSSEIN AFSHARI, aka Hosseini OPINION

Deklami; MOHAMMAD OMIDVAR;

HASSAN REZAIE; ROYA RAHMANI,

aka Sister Tahmineh; NAVID TAJ,

aka Najaf Eshkoftegi; MUSTAFA

AHMADY; ALIREZA MOHAMAD

MORADI,

Defendants-Appellees. 

Appeal from the United States District Court

for the Central District of California

Robert M. Takasugi, District Judge, Presiding

Argued and Submitted

September 9, 2003—Pasadena, California

Filed October 20, 2005

Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and

William A. Fletcher, Circuit Judges.

Opinion by Judge Kleinfeld

14393
COUNSEL

Douglas N. Letter, U. S. Department of Justice, Washington,

D.C., for the appellant. 

Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Rubin &

Demain, San Francisco, California, for the appellees. 

OPINION

KLEINFELD, Circuit Judge: 

We review the constitutionality of a statute prohibiting

financial support to organizations designated as “terrorist.” 

Facts

The issue here is the constitutionality of the crime charged

in the indictment, that from 1997 to 2001, Rahmani and others

knowingly and willfully conspired to provide material support

to the Mujahedin-e Khalq (“MEK”),1 a designated terrorist

organization, in violation of 18 U.S.C. § 2339B(a)(1).2

According to the indictment, the defendants solicited charitable contributions at the Los Angeles International Airport

for the “Committee for Human Rights,” gave money and

credit cards to the MEK, and wired money from the “Com1The MEK is also known as the People’s Mojahedin Organization for

Iran, or PMOI, and has a variety of other aliases. 

2

In 1997, the Secretary of State designated the MEK as a foreign terrorist organization under 8 U.S.C. § 1189. 

UNITED STATES v. AFSHARI 14397
mittee for Human Rights” to an MEK bank account in Turkey. They did all this after participating in a conference call

with an MEK leader, in which they learned that the State

Department had designated the MEK as a foreign terrorist

organization. The MEK leader told them to continue to provide material support despite the designation. According to

the indictment in this case, the money they sent to the MEK

amounted to at least several hundred thousand dollars. 

The MEK was founded in the 1960’s as an Iranian Marxist

group seeking to overthrow the regime then ruling Iran. It participated in various terrorist activities against the Iranian

regime and against the United States, including the taking of

American embassy personnel as hostages in 1979. After the

Iranian regime fell and was replaced by a clerical, rather than

a Marxist, regime, MEK members fled to France. They later

settled in Iraq, along the Iranian border. There they carried out

terrorist activities with the support of Saddam Hussein’s

regime,3 as well as, if the indictment is correct, the money that

the defendants sent them. 

The MEK, since first being designated a terrorist organization, has developed a convoluted litigation history in the

United States Court of Appeals for the District of Columbia.

Because this history is important to the outcome of this case,

we will briefly review the relevant parts. 

The MEK was first designated a terrorist organization in

1997. The D.C. Circuit upheld this designation because the

MEK was a “foreign entity without . . . presence in this country” and thus “ha[d] no constitutional rights under the due

process clause.”

4

 Therefore, the MEK was not entitled to

notice and a hearing. It also found the administrative record

3The 1997-2001 period of the conspiracy charged in the indictment was

during Saddam Hussein’s regime. 

4People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17, 22

(D.C. Cir. 1999). 

14398 UNITED STATES v. AFSHARI
sufficient to establish that the MEK “engages in terrorist activity.”5

 In the process of designating MEK a terrorist organization in 1999, the State Department determined that another

organization, the National Council of Resistance of Iran, was

an “alias” of the MEK.6 When reviewing the 1999 designation, the D.C. Circuit held that the second organization had a

presence in the United States and, based on that presence, that

both organizations were entitled to “the opportunity to be

heard at a meaningful time and in a meaningful manner.”

7

The D.C. Circuit remanded the 1999 designation to the

State Department with the instructions that both organizations

be given an opportunity “to file evidence in support of their

allegations that they are not terrorist organizations.”

8

 Instead,

the MEK submitted evidence showing that it was responsible

for numerous assassinations of Iranian officials and mortar

attacks on Iranian government installations.9 Upon reviewing

this redesignation, the D.C. Circuit noted that any procedural

due process error that might have existed was harmless

because the MEK had “effectively admitted” that it was a terrorist organization.10

For purposes of reviewing a motion to dismiss an indictment, we assume the truth of what the indictment alleges.11

Thus, we take it as true that the defendants knew that they

were furnishing assistance to a designated “terrorist” organization, having been informed of the designation in a conference call with an MEK leader. 

5

Id. at 24-25. 

6Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 197

(D.C. Cir. 2001). 

7

Id. at 208. 

8

Id. 

9People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238,

1243 (D.C. Cir. 2003). 

10Id.

11United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). 

UNITED STATES v. AFSHARI 14399
The district court dismissed the indictment on the ground

that the terrorist designation statute12 was unconstitutional.

We review de novo,13 and reverse.

Analysis

I. Challenging the designation. 

8 U.S.C. § 1189(a)(1) sets out a carefully articulated

scheme for designating foreign terrorist organizations. To

make the designation, the Secretary has to make specific findings that “the organization is a foreign organization”; that “the

organization engages in terrorist activity (as defined in 8

U.S.C. § 1182(a)(3)(B))”; and that “the terrorist activity of the

organization threatens the security of United States nationals

or the national security of the United States.”

14

128 U.S.C. § 1189. 

13United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.

1991). 

148 U.S.C. § 1182(a)(3)(B)(iii). Terrorist activity defined. As used in

this Act, the term “terrorist activity” means any activity which is unlawful

under the laws of the place where it is committed . . . and which involves

any of the following: 

(I) The highjacking or sabotage of any conveyance . . . 

(II) The seizing or detaining, and threatening to kill, injure, or

continue to detain, another individual in order to compel a third

person . . . to do or abstain from doing any act as an explicit or

implicit condition for the release of the individual seized or

detained. 

(III) A violent attack upon an internationally protected person

. . . or upon the liberty of such a person. 

(IV) An assassination. 

(V) The use of any — 

(a) biological agent, chemical agent, or nuclear weapon or

device, or 

(b) explosive or firearm . . . , 

14400 UNITED STATES v. AFSHARI
The Secretary of State’s designation is only the beginning.

The Secretary also must furnish the congressional leadership

advance notification of the designation and the factual basis

for it, which Congress can reject.15 The designation is published in the Federal Register.16 The designated organization

is entitled to judicial review of the Secretary’s action in the

United States Court of Appeals for the District of Columbia.17

That court is directed to set aside the designation for the ordinary administrative law reasons, such as that the designation

is “arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law.”

18 That court must also set aside

a designation for several other reasons, including that the designation is “contrary to constitutional right, power, privilege,

or immunity.”

19 Congress or the Secretary can revoke a designation.20 Among the concrete incentives that a designated organization has to contest the designation is that the Secretary of

the Treasury may require American financial institutions to

block all financial transactions involving its assets.21

[1] The district court found that it was a facially unconstitutional restriction on judicial review of the designation for

Congress to assign such review exclusively to the D.C. Circuit. We reject that position. 

with intent to endanger, directly or indirectly, the safety of one

or more individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.

22 U.S.C. § 2656f(d)(2). [T]he term “terrorism” means premeditated,

politically motivated violence perpetrated against noncombatant targets by

subnational groups or clandestine agents. 

158 U.S.C. § 1189(a)(2)(A)(i). 

16Id. § 1189(a)(2)(A)(ii). 

17Id. § 1189(c)(1). 

18Id. § 1189(c)(3)(A). 

19Id. § 1189(c)(3)(B). 

20Id. § 1189(a)(5), (6). 

21Id. § 1189(a)(2)(C). 

UNITED STATES v. AFSHARI 14401
[2] Many administrative determinations are reviewable

only by petition to the correct circuit court, bypassing the district court, and that procedure has generally been accepted.22

Many are reviewable only in the D.C. Circuit, or the Federal

Circuit, and those restrictions have also been generally accepted.23 The congressional restriction does not interfere with the

opportunity for judicial review, as the MEK’s extensive litigation history shows. And this scheme avoids the awkwardness

of criminalizing material support for a designated organization in some circuits but not others, as varying decisions in the

different regional circuits might. 

[3] However, a holding that a restriction of judicial review

of the Secretary of State’s designation of a terrorist organization to the Court of Appeals for the D.C. Circuit is not facially

unconstitutional does not settle the question whether a defendant may be criminally prosecuted for donating to a designated organization. A defendant prosecuted in district court

for donating to such an organization may bring a due process

challenge to his or her prosecution in the district court. The

district court properly ruled that it had jurisdiction to review

this challenge. But its conclusion that § 1189 is facially

unconstitutional, because judicial review of the terrorist designation was assigned exclusively to the D.C. Circuit, was in

error. 

II. Due Process claim. 

The statute assigns criminal penalties to one who “knowingly provides material support or resources to a foreign ter22See, e.g., City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336

(1958); Lockerty v. Phillips, 319 U.S. 182 (1943) (holding that a district

court lacked jurisdiction to hear a challenge to price controls under the

Emergency Price Controls Act where Congress had vested judicial review

for such challenges in an Emergency Court of Appeals). 

23See, e.g., 47 U.S.C. § 402(b) (vesting exclusive jurisdiction in the

D.C. Circuit over appeals from certain decisions and orders of the Federal

Communications Commission). 

14402 UNITED STATES v. AFSHARI
rorist organization, or attempts or conspires to do so.”

24 The

statutory phrase “terrorist organization” is a term of art,

defined by Congress as “an organization designated as a terrorist organization” under 8 U.S.C. § 1189(a)(1).25 The defendants’ central argument is that § 2339B denies them their

constitutional rights because it prohibits them from collaterally attacking the designation of a foreign terrorist organization. This contention was recently rejected by the Fourth

Circuit en banc.26 We, too, reject it. 

[4] The specific section that is at issue here is 8 U.S.C.

§ 1189(a)(8), which states in relevant part: 

If a designation . . . has become effective . . . a

defendant in a criminal action or an alien in a

removal proceeding shall not be permitted to raise

any question concerning the validity of the issuance

of such designation or redesignation as a defense or

an objection at any trial or hearing. 

The defendants are right that § 1189(a)(8) prevents them

from contending, in defense of the charges against them under

18 U.S.C. § 2339B, that the designated terrorist organization

is not really terrorist at all. No doubt Congress was well aware

that some might claim that “one man’s terrorist is another

man’s freedom fighter.” Congress clearly chose to delegate

2418 U.S.C. § 2339B. Providing material support or resources to designated foreign terrorist organizations 

(a) Prohibited activities— 

(1) Unlawful conduct—Whoever knowingly provides material

support or resources to a foreign terrorist organization, or

attempts or conspires to do so, shall be fined under this title or

imprisoned not more than 15 years, or both, and, if the death of

any person results, shall be imprisoned for any term of years or

for life. 

2518 U.S.C. § 2339(B)(g)(6). 

26United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc).

UNITED STATES v. AFSHARI 14403
policymaking authority to the President and Department of

State with respect to designation of terrorist organizations,

and to keep such policymaking authority out of the hands of

United States Attorneys and juries. Under § 2339B, if defendants provide material support for an organization that has

been designated a terrorist organization under § 1189, they

commit the crime, and it does not matter whether the designation is correct or not. 

[5] The question then is whether due process prohibits a

prosecution under § 2339B when the court vested with the

power to review and set aside the predicate designation determines that the designation was obtained in an unconstitutional

or otherwise erroneous manner, but nevertheless declines to

set it aside. In reviewing MEK’s 1999 designation, the D.C.

Circuit found that “the designation does violate the due process rights of the petitioners under the Fifth Amendment”

because the designation process did not afford MEK notice or

an opportunity to be heard.27 The D.C. Circuit did not vacate

the designation, citing foreign policy and national security

concerns as well as the fact that the designation would be

expiring shortly.28 Instead it left the designation in place and

remanded to the Secretary of State with instructions that MEK

be afforded due process rights.29

Defendants argue that the D.C. Circuit’s failure to vacate

the 1999 designation after finding a due process violation is

incompatible with § 1189’s “shall . . . set aside” language, and

thus that the statute prohibits using the designation as a valid

predicate for a subsequent prosecution. But we do not have

authority to reverse the decisions of a sister circuit. Nor do we

have the authority to review the State Department’s designa27Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,

196, 200 (D.C. Cir. 2001). 

28Id. at 209. 

29Id. 

14404 UNITED STATES v. AFSHARI
tion because the statute confers that jurisdiction exclusively in

the D.C. Circuit. 

[6] Nor, although the plain language of § 1189(c)(3)

appears to be mandatory, is the D.C. Circuit’s approach

inconsistent with precedent in analogous situations. Section

1189(c)(3) is nearly identical to § 706 of the Administrative

Procedure Act, and the remedy the D.C. Circuit used here—

remand without vacatur—has been used several times under

the APA.30 Though not entirely uncontroversial, remand without vacatur has long been supported by Supreme Court precedent,31 had been utilized before the enactment of § 1189 in

1996, and was well-established when Congress modified elements of § 1189 in 2001 and 2004 without altering the judicial review procedure. Thus, despite the seemingly mandatory

language in the statute, we believe § 1189(c)(3) can reasonably be read as the D.C. Circuit read it, to allow the remand

of a designation without vacating it. This is especially so in

this case, because the designation would have been unobjectionable if, as it initially appeared, the MEK was located

entirely abroad and had no American location, and was, in

any event, harmless because the MEK proudly proclaimed its

own terrorist activities. Moreover, we will not lightly contradict in a collateral proceeding such as this a co-equal court’s

well established interpretation of a statute. Defendants’ statutory argument therefore fails. 

Defendants further claim that the Due Process Clause prevents a designation found to be unconstitutional from serving

as a predicate for the charge of providing material support to

a designated terrorist organization, even if the designation has

never been set aside.32 There are several reasons why this

argument lacks force. 

30See, e.g., Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392,

1405-06 (9th Cir. 1995). 

31See, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1943). 

32It bears noting that we are not addressing the constitutionality of a

statute lacking in judicial review. To the contrary, § 1189 explicitly provides for judicial review, and the designation at issue in this case withstood judicial review when the D.C. Circuit let the MEK’s 1999 designation stand. 

UNITED STATES v. AFSHARI 14405
First, the Supreme Court in Lewis v. United States held that

a prior conviction could properly be used as a predicate for a

subsequent conviction for a felon in possession of a firearm,

even though it had been obtained in violation of the Sixth

Amendment right to counsel.33 The Court held that it was

proper to prohibit a collateral attack on the predicate during

the criminal hearing because the felon-in-possession statute

made no exception “for a person whose outstanding felony

conviction ultimately might turn out to be invalid for any reason.”34 The Court noted that the prohibition on collateral

attack was proper because a convicted felon could challenge

the validity of the conviction before he purchased his firearm.35

[7] The defendants attempt to distinguish Lewis from this

§ 2339B prosecution because the defendant in Lewis had the

ability to challenge his predicate, whereas here the defendants

themselves are prohibited from challenging the designation.

But this does not change the principle that a criminal proceeding may go forward, even if the predicate was in some way

unconstitutional, so long as a sufficient opportunity for judicial review of the predicate exists. Here there was such an

opportunity, which the MEK took advantage of each time it

was designated a foreign terrorist organization.36

[8] Second, the D.C. Circuit declined to set aside the 1999

designation. It remanded the determination but carefully

explained that it did not vacate the designation.37 After the

remand, the D.C. Circuit upheld the redesignation; therefore,

33Lewis v. United States, 445 U.S. 55 (1980). 

34Id. at 62. 

35Id. at 64. 

36See People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17

(D.C. Cir. 1999); Nat’l Council of Resistance of Iran v. Dep’t of State, 251

F.3d 192 (D.C. Cir. 2001); People’s Mojahedin Org. of Iran v. Dep’t of

State, 327 F.3d 1238 (D.C. Cir. 2003). 

37Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,

209 (D.C. Cir. 2001). 

14406 UNITED STATES v. AFSHARI
at all relevant times, the “foreign terrorist organization” designation had been in full force. This court and the D.C. Circuit

are co-equal courts. We cannot reverse its decision.38 Additionally, the statute expressly provides that only the D.C. Circuit may review these designations,39 so it would be contrary

to the statutory scheme for us to hold that the designation was

invalid. We have already determined that any constitutional

challenge against 8 U.S.C. § 1189 “must be raised in an

appeal from a decision to designate a particular organization”

and must be heard in the D.C. Circuit.40

[9] Third, 18 U.S.C. § 2339B only requires that Rahmani,

et al., had knowledge of the MEK’s designation as a foreign

terrorist organization. The Fourth Circuit, sitting en banc, held

that a criminal defendant charged under this statute cannot

bring a challenge to the validity of a designation of an organization as “terrorist.” In a case where there was no indication

that the designation was invalid (other than the defendant’s

would-be challenge), the Fourth Circuit wrote, “[T]he fact of

an organization’s designation as an [terrorist organization] is

an element of § 2339B, but the validity of the designation is

not.”

41 Here, the MEK has been designated a terrorist organization throughout the relevant period, and that designation has

never been set aside. According to the indictment, defendants

had knowledge of this designation, they were told during a

telephone conference call with an MEK leader in October

1997 that the MEK had been designated a foreign terrorist

organization by the State Department. 

38See Lowenschuss v. West Publishing Co., 542 F.2d 180,183 (3rd Cir.

1976) (ruling on an “official opinion of a court of another circuit . . . is

undesirable on policy grounds alone”). 

398 U.S.C. § 1189(c); See also Humanitarian Law Project v. Reno, 205

F.3d 1130, 1137 (9th Cir. 2000) (the statute “provides for judicial review

of the Secretary’s decision in the” D.C. Circuit). 

40Humanitarian Law Project, 205 F.3d at 1137. 

41United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en

banc) (emphasis in original), rev’d on other grounds, 125 S.Ct. 1051

(2005), reinstated in part, 405 F.3d 1034 (4th Cir. 2005). 

UNITED STATES v. AFSHARI 14407
[10] Fourth, as discussed earlier, the D.C. Circuit ultimately

held that the procedural due process violation it identified was

harmless. When challenging the 1999 designation, the MEK

admitted to numerous terrorist acts making an argument that

amounted to a claim that the enemy of our enemy is our friend,42

a decision that is committed to the Executive Branch, not the

courts. Due to this “admission,” the D.C. Circuit held that,

even if there were a due process violation, the MEK was not

harmed by it. 

[11] Thus, defendants’ new due process argument attacks

a designation that withstood judicial review, that we have no

authority to review, that defendants knew was in place

throughout the period of the indictment, and that is supported

by the MEK’s own submission. Defendants suffered no deprivation of due process, and even if they had, it was harmless.

The defendants further attempt to distinguish Lewis, a

Supreme Court decision adding that a prior conviction is an

adequate predicate for a “felon in possession” charge even if

the prior conviction was obtained unconstitutionally, by relying on United States v. Mendoza-Lopez.

43 In that case, the

Supreme Court held that a prosecution under 8 U.S.C. § 1326

for illegal reentry does not comport with due process if there

is no judicial review of whether the predicate deportation proceeding violated the alien’s rights.44 It is not at all clear from

Mendoza-Lopez that the Supreme Court meant that the due

process problem is in the later proceeding. The Court held

that “where a determination made in an administrative pro42MEK “argues that the attempt to overthrow the despotic government

of Iran, which itself remains on the State Department’s list of state sponsors of terrorism, is not ‘terrorist activity,’ or if it is, that it does not

threaten the security of the United States or its nationals.” People’s

Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1244 (D.C. Cir.

2003). 

43United States v. Mendoza-Lopez, 481 U.S. 828 (1987). 

44Id. at 837-38. 

14408 UNITED STATES v. AFSHARI
ceeding is to play a critical role in the subsequent imposition

of a criminal sanction, there must be some meaningful review

of the administrative proceeding.”

45 Nothing in MendozaLopez appears to require that this review be had by the defendant in the subsequent criminal proceeding. 

[12] Furthermore, it is obvious in Lewis and MendozaLopez that the opportunity to seek review would be in the

hands of the defendants themselves because it was their rights

at issue in the hearing that created the predicate in the later

criminal proceeding. But here, the defendants’ rights were not

directly violated in the earlier designation proceeding. The

predicate designation was against the MEK, not the defendants. Section 1189 provides for the organizations to seek

review of the predicate designation, and that review was had

in this case. Therefore, due process does not require another

review of the predicate by the court adjudicating the instant

§ 2339B criminal proceeding. 

[13] Our holding is further supported by our decision in

United States v. Bozarov.

46 In Bozarov, we held that a defendant charged with exporting items listed under the Export

Administration Act without a license did not have a due process right to collaterally attack the listing in his criminal proceeding.47 We held, however, that Bozarov had standing to

challenge the constitutionality of the Export Act in his criminal proceeding.48 This was because the Export Act explicitly

provided that all actions taken by the Secretary of Commerce

under it were “not subject to judicial review,” including a

denial of the license that was a predicate for a violation of the

criminal provision.49 If a defendant were not allowed to chal45Id. (emphasis in original). 

46United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992). 

47Id. at 1045-46. 

48Id. at 1040-41. 

49Id. at 1039. 

UNITED STATES v. AFSHARI 14409
lenge the Export Act in that proceeding, there would be no

arbiter of the constitutionality of the Export Act. In contrast,

Congress has explicitly provided that the D.C. Circuit is the

arbiter of the constitutionality of any designation under

§ 1189. Thus, there is no constitutional need for the defendants to challenge the predicate designation in this proceeding. 

As we noted in another case where we rejected a defendant’s right to challenge an export listing in a subsequent

criminal proceeding, the defendants’ argument here “is analogous to one by a defendant in a drug possession case that his

conviction cannot stand because no specific showing has been

made that the drug is a threat to society. . . . [A] showing that

the drug possessed by the individual defendant has a ‘detrimental effect on the general welfare’ [is not] an element of

the offense.”

50 Likewise, the element of the crime that the

prosecutor must prove in a § 2339B case is the predicate fact

that a particular organization was designated at the time the

material support was given, not whether the government made

a correct designation. Our position is consistent with that of

the Fourth Circuit, which held that a defendant’s inability to

challenge the designation was not a violation of his constitutional rights, since the validity of the designation is not an element of the crime.51 Rather, the element is the fact of an

organization’s designation as a “foreign terrorist organization.”52

III. First Amendment claim. 

The defendants argue that the MEK is not a terrorist organi50United States v. Mandel, 914 F.2d 1215 n.11 (9th Cir. 1990) (quoting

Spawr Optical Research, Inc. v. Baldridge, 649 F. Supp. 1366, 1372 n.10

(D.D.C. 1986)). 

51United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en

banc). 

52Id.

14410 UNITED STATES v. AFSHARI
zation, and that they have a right under the First Amendment

to contribute money to it. The argument is: (1) they have a

First Amendment right to contribute to organizations that are

not terrorist; (2) the statutory scheme denies them the opportunity to challenge the “foreign terrorist organization” designation; so therefore (3) it deprives them of their First

Amendment right to make contributions to non-terrorist organizations. 

This argument is mistaken because what the defendants

propose to do is not to engage in speech, but rather to provide

material assistance. The statute says “knowingly provides

material support or resources to a foreign terrorist organization.”53 The indictment charges them with sending money to

the MEK. 

The defendants argue that they seek to express their political views, not by supporting terrorism, but rather by supporting an organization that the State Department has mistakenly

designated as terrorist.54 The due process part of this argument, that they are entitled to an opportunity in their criminal

proceeding to relitigate whether the MEK is terrorist, is

addressed above. Defendants also make a distinct free speech

argument, however, based on McKinney v. Alabama.

55

McKinney holds that the First Amendment rights of a newsstand proprietor were violated by his conviction under a statute that prohibited him from selling an obscene magazine.56

What is similar to this case is that the obscenity of the maga5318 U.S.C. § 2339B(a)(1). 

54This is an odd argument since the MEK itself has admitted that it has

attacked various Iranian government organizations, assassinated several

Iranian officials, and targeted Iranian Supreme Leader Khamenei for

assassination. See People’s Mojahedin Org. of Iran v. Dep’t of State, 327

F.3d 1238, 1243 (D.C. Cir. 2003). 

55McKinney v. Alabama, 424 U.S. 669 (1976). 

56Id. at 673. 

UNITED STATES v. AFSHARI 14411
zine in McKinney was adjudicated, not in the criminal defendant’s proceeding, but in a previous in rem proceeding against

the magazine to which the newsstand proprietor was not a

party.57 The Court held that a decision in another proceeding

could not conclusively determine First Amendment rights to

sell a magazine of persons who had no notice and opportunity

to be heard in that proceeding.58 By analogy, the defendants

in this case argue that they should be entitled to litigate the

terrorism designation of the MEK in their criminal case. 

The argument fails, however, because the cases are not

analogous. The magazine in McKinney was speech, the

money sent to the MEK is not. Though contributions of

money given to fund speech receive some First Amendment

protection,59 it does not follow that all contributions of money

are entitled to protection as though they were speech. 

[14] What is at issue here is not anything close to pure

speech. It is, rather, material support to foreign organizations

that the United States has deemed, through a process defined

by federal statute and including judicial review by the D.C.

Circuit, a threat to our national security. The fact that the support takes the form of money does not make the support the

equivalent of speech. In this context, the donation of money

could properly be viewed by the government as more like the

donation of bombs and ammunition than speech.60 The “foreign terrorist organization” designation means that the Executive Branch has determined — and the D.C. Circuit, in

choosing not to set aside the designation, has concluded that

the determination was properly made — that materially sup57See id.

58Id. at 674. 

59See McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003); Buckley

v. Valeo, 424 U.S. 1 (1976). 

60See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.

2000). 

14412 UNITED STATES v. AFSHARI
porting the organization is materially supporting actual violence. 

Donations to designated foreign terrorist organizations are

not akin to donations to domestic political parties or candidates. An organization cannot be designated unless it is foreign,61 so domestic associations are immune from the scheme.

And in this case, there is no room for a vagueness challenge

on the ground that the defendants were merely contributing

what might arguably be in the nature of speech.62 The indictment charges them with sending money to the designated terrorist organization, not with providing instruction or

advocacy. 

We have already held that the strict scrutiny standard applicable to speech regulations does not apply to a prohibition

against sending money to foreign terrorist organizations.63

That a group engages in politics and has political goals does

not imply that all support for it is speech, or that it promotes

its political goals by means of speech. Guns and bombs are

not speech. Sometimes money serves as a proxy for speech,

and sometimes it buys goods and services that are not speech.

The government “may certainly regulate contributions to

organizations performing unlawful or harmful activities, even

though such contributions may also express the donor’s feelings about the recipient.”

64 There is no First Amendment right

“to facilitate terrorism by giving terrorists the weapons and

explosives with which to carry out their grisly missions.”

65

[15] A less rigorous standard of review is applied to monetary contributions than to pure speech.66 Even giving money

to perfectly legitimate political expression within the United

618 U.S.C. § 1189(a)(1)(A). 

62Cf. Humanitarian Law Project, 205 F.3d at 1137. 

63Id. at 1135. 

64Id.

65Id. at 1133. 

66McConnell, 540 U.S. at 137. 

UNITED STATES v. AFSHARI 14413
States can be, and is, restricted by Congress, and such restrictions are consistent with the Constitution.67 A fortiori, contribution of money to foreign organizations that the United

States has determined engage in terrorist activities can be

restricted by Congress.68 It would be anomalous indeed that

Congress could restrict the contribution of money for television commercials that say why a candidate would be a good

or bad choice for political office, yet could not prohibit contribution of money to a foreign group that the government determines engages in terrorist activities. Defendants are entitled

under the First Amendment to publish articles arguing that the

MEK is not really a terrorist organization, but they are not

entitled to furnish bombs to the MEK, nor to furnish money

to buy bombs and ammunition. 

The deference due the Executive Branch in the area of

national security reinforces our conclusion that furnishing

material assistance to foreign terrorist organizations must be

distinguished from the McKinney issue, furnishing obscene

magazines.69

In McConnell, the Court found that “the prevention of corruption or its appearance constitutes a sufficiently important

interest to justify political contribution limits.”

70 The interest

in protecting our country from foreign terrorist organizations

is a fortiori “a sufficiently important interest.” “[T]he federal

67See id.; Buckley, 424 U.S. at 20 (“[A] limitation upon the amount that

any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to

engage in free communication.”). 

68See Humanitarian Law Project, 205 F.3d at 1133. 

69See Regan v. Wald, 468 U.S. 222, 242 (1984) (“Matters relating ‘to

the conduct of foreign relations . . . are so exclusively entrusted to the

political branches of government as to be largely immune from judicial

inquiry or interference.’ ”) (quoting Harisiades v. Shaughnessy, 342 U.S.

580, 589 (1952)); Zemel v. Rusk, 381 U.S. 1 (1965) (rejecting due process

challenge to the Secretary of State’s refusal to validate passports of United

States citizens to travel to Cuba). 

70McConnell, 540 U.S. at 143. 

14414 UNITED STATES v. AFSHARI
government clearly has the power to enact laws restricting the

dealings of United States citizens with foreign entities.”

71

“[W]e must allow the political branches wide latitude in

selecting the means to bring about the desired goal” of “preventing the United States from being used as a base for terrorist fundraising.”

72

[16] Conceivably the MEK developed its practices at a time

when the United States supported the previous regime in Iran,

and maintained its position while harbored by the Saddam

Hussein Ba’ath regime in Iraq. Maybe the MEK’s position

will change, or has changed, so that its interest in overturning

the current regime in Iran coincides with the interests of the

United States. Defendants could be right about the MEK. But

that is not for us, or for a jury in defendants’ case, to say. The

sometimes subtle analysis of a foreign organization’s political

program to determine whether it is indeed a terrorist threat to

the United States is particularly within the expertise of the

State Department and the Executive Branch.73 Juries could not

make reliable determinations without extensive foreign policy

education and the disclosure of classified materials. Nor is it

appropriate for a jury in a criminal case to make foreign policy decisions for the United States. Leaving the determination

of whether a group is a “foreign terrorist organization” to the

Executive Branch, coupled with the procedural protections

and judicial review afforded by the statute, is both a reasonable and a constitutional way to make such determinations.

The Constitution does not forbid Congress from requiring

individuals, whether they agree with the Executive Branch

determination or not, to refrain from furnishing material assistance to designated terrorist organizations during the period of

designation. 

REVERSED.

71Humanitarian Law Project, 205 F.3d at 1135. 

72Id. at 1136. 

73See Nat’l Council of Resistance of Iran, 251 F.3d 192. 

UNITED STATES v. AFSHARI 14415