Appeals from the United States District Courtfor the Central District of CaliforniaAudrey B. Collins, District Judge, PresidingArgued and SubmittedFebruary 1, 1999--Pasadena, CaliforniaFiled March 3, 2000Before: Dorothy W. Nelson, Alex Kozinski andStephen S. Trott, Circuit Judges.Opinion by Judge Kozinski
_____________________________COUNSEL David Cole, Institute for Public Representation, Washington,D.C., argued the cause for plaintiffs-appellants HumanitarianLaw Project, Ralph Fertig, Ilankai Thamil Sangam, TamilWelfare and Human Rights Committee, Federation of TamilSangams of North America, and Nagalingam Jeyalingam.With him on the briefs were Nancy Chang, Center for Consti-tutional Rights, New York, New York. Also on the briefswere Carol A. Sobel, Santa Monica, California for plaintiff-appellant Tamils of Northern California and VisuvanathanRudrakumaran, New York, New York, for plaintiffs-appellants Tamils of Northern California and World TamilCoordinating Committee.Douglas N. Letter, United States Department of Justice, CivilDivision, Washington, D.C., argued the cause for defendants-appellees. With him on the briefs were John R. Tyler, MarthaRubio and David Anderson.Linda Dakin-Grimm, Chadbourne and Parke, WashingtonD.C. and Los Angeles, California, filed an amicus brief urg-ing affirmance for the Anti-Defamation League. With her onthe briefs were David M. Raim, Philip J. Goodman and JoyL. Langford.
_____________________________OPINION KOZINSKI, Circuit Judge:We consider whether Congress may, consistent with theFirst Amendment, prohibit contributions of material supportto certain foreign terrorist organizations.IThe Antiterrorism and Effective Death Penalty Act of1996, Pub. L. No. 104-132, 110 Stat. 1214, known among thecognoscenti as AEDPA, authorizes the Secretary of State to"designate an organization as a foreign terrorist organization. . . if the Secretary finds that (A) the organization is a foreignorganization; (B) the organization engages in terrorist activity. . . ; and (C) the terrorist activity of the organization threatensthe security of United States nationals or the national securityof the United States." AEDPA S 302(a), 110 Stat. at 1248(codified at 8 U.S.C. S 1189(a)).This provision has teeth. AEDPA decrees punishment byfine, imprisonment for up to 10 years or both on"[w]hoever,within the United States or subject to the jurisdiction of theUnited States, knowingly provides material support orresources to a foreign terrorist organization, or attempts orconspires to do so . . . ." AEDPA S 303(a), 110 Stat. at 1250(codified at 18 U.S.C. S 2339B(a)(1)). The phrase "materialsupport or resources" is broadly defined as "currency or otherfinancial securities, financial services, lodging, training, safe-houses, false documentation or identification, communica-tions equipment, facilities, weapons, lethal substances,explosives, personnel, transportation, and other physicalassets, except medicine or religious materials." AEDPAS 323, 110 Stat. at 1255 (codified at 18 U.S.C. S 2339A(b)).Pursuant to those guidelines, the Secretary had, as of Octo-ber 1997, designated 30 organizations as foreign terroristorganizations. See Designation of Foreign Terrorist Organiza-tions, 62 Fed. Reg. 52,650, 52,650-51 (1997). Two such enti-ties are the Kurdistan Workers' Party ("PKK") and theLiberation Tigers of Tamil Eelam ("LTTE"). Plaintiffs, sixorganizations and two United States citizens, wish to providewhat they fear would be considered material support to thePKK and LTTE. Plaintiffs claim that such support would bedirected to aid only the nonviolent humanitarian and politicalactivities of the designated organizations. Being prohibitedfrom giving this support, they argue, infringes their associa-tional rights under the First Amendment. Because the statutecriminalizes the giving of material support to an organizationregardless of whether the donor intends to further the organi-zation's unlawful ends, plaintiffs claim it runs afoul of therule set forth in cases such as NAACP v. Claiborne HardwareCo.,
458 U.S. 886
(1982). That rule, as succinctly stated inClaiborne Hardware, is "[f]or liability to be imposed by rea-son of association alone, it is necessary to establish that thegroup itself possessed unlawful goals and that the individualheld a specific intent to further those illegal aims." Id. at 920.Plaintiffs further complain that AEDPA grants the Secretaryunfettered and unreviewable authority to designate whichgroups are listed as foreign terrorist organizations, a violationof the First and Fifth Amendments. Lastly, plaintiffs maintainthat AEDPA is unconstitutionally vague.Plaintiffs sought a preliminary injunction barring enforce-ment of AEDPA against them. The district court denied theinjunction, for the most part. See Humanitarian Law Projectv. Reno, 9 F. Supp. 2d 1176, 1204 (C.D. Cal. 1998). How-ever, it agreed with plaintiffs that AEDPA was impermissiblyvague, specifically in its prohibition on providing "personnel"and "training." The court therefore enjoined the enforcementof those prohibitions. See id. at 1204-05. Each side appeals itslosses.II[1] A. Plaintiffs try hard to characterize the statute asimposing guilt by association, which would make it unconsti-tutional under cases such as Claiborne Hardware. ButClaiborne Hardware and similar cases address situationswhere people are punished "by reason of association alone,"Claiborne Hardware,
458 U.S. at 920
--in other words,merely for membership in a group or for espousing its views.AEDPA authorizes no such thing. The statute does not pro-hibit being a member of one of the designated groups or vig-orously promoting and supporting the political goals of thegroup. Plaintiffs are even free to praise the groups for usingterrorism as a means of achieving their ends. What AEDPAprohibits is the act of giving material support, and there is noconstitutional right to facilitate terrorism by giving terroriststhe weapons and explosives with which to carry out theirgrisly missions. Nor, of course, is there a right to provideresources with which terrorists can buy weapons and explo-sives.[2] B. Plaintiffs also insist that AEDPA is unconstitutionalbecause it proscribes the giving of material support even if thedonor does not have the specific intent to aid in the organiza-tion's unlawful purposes. They rely on American-Arab Anti-Discrimination Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995)(ADC I), where we declared that "[t]he government mustestablish a `knowing affiliation' and a `specific intent to fur-ther those illegal aims' " in order to punish advocacy. Id. at1063 (quoting Healy v. James,
408 U.S. 169, 186
(1972)). Butadvocacy is far different from making donations of materialsupport. Advocacy is always protected under the FirstAmendment whereas making donations is protected only incertain contexts. See Section II.C. infra. Plaintiffs here do notcontend they are prohibited from advocating the goals of theforeign terrorist organizations, espousing their views or evenbeing members of such groups. They can do so without fearof penalty right up to the line established by Brandenburg v.Ohio,
395 U.S. 444
(1969).[3] It is true that in American-Arab Anti-DiscriminationComm. v. Reno, 119 F.3d 1367 (9th Cir. 1997) (ADC II),vacated, 119 S. Ct. 936 (1999), we said that in ADC I "we hadbefore us evidence that [the] associational activities [that theplaintiffs engaged in] included fundraising." Id. at 1376. ButADC II has been vacated, and we can find no language inADC I holding that fundraising enjoys First Amendment pro-tection on a par with pure speech or advocacy. We are notbound by ADC II's characterization of ADC I, and we find itunpersuasive. Material support given to a terrorist organiza-tion can be used to promote the organization's unlawful activ-ities, regardless of donor intent. Once the support is given, thedonor has no control over how it is used. We therefore do notagree with ADC II's implied holding that the First Amend-ment requires the government to demonstrate a specific intentto aid an organization's illegal activities before attaching lia-bility to the donation of funds.[4] C. Plaintiffs make a separate First Amendment argu-ment based on the fact that the terrorist organizations in ques-tion also engage in political advocacy. Pointing to cases suchas Buckley v. Valeo,
424 U.S. 1
(1976), and In re AsbestosSch. Litig., 46 F.3d 1284 (3d Cir. 1994), plaintiffs argue thatproviding money to organizations engaged in political expres-sion is itself both political expression and association. SeeBuckley,
424 U.S. at 44
-45 ("[T]he constitutionality of [therestrictions on contributions to political candidates] turns onwhether the government interests advanced in its support sat-isfy the exacting scrutiny applicable to limitations on coreFirst Amendment rights of political expression.").1 However,the cases equating monetary support with expression involvedorganizations whose overwhelming function was politicaladvocacy. Buckley is the quintessential example where thecontributions were made to candidates for political office forthe purpose of helping them engage in electioneering. SeeBuckley,
424 U.S. at 12
-13. Under those circumstances,money, and the things money can buy, do indeed serve as aproxy for speech and demonstrate one's association with theorganization. However, even in Buckley, the Court treatedlimits on donations differently from limits on candidates'expenditures of personal funds.2 While the First Amendmentprotects the expressive component of seeking and donatingfunds, expressive conduct receives significantly less protec-tion than pure speech. See Texas v. Johnson,
491 U.S. 397
,406 (1989) ("The government generally has a freer hand inrestricting expressive conduct than it has in restricting thewritten or spoken word.") (citing United States v. O'Brien,
391 U.S. 367, 376
-77 (1968)). The government may thus reg-ulate contributions to organizations that engage in lawful--but non-speech related--activities. And it may certainly regu-late contributions to organizations performing unlawful orharmful activities, even though such contributions may alsoexpress the donor's feelings about the recipient. Cf. Young v.New York City Transit Auth., 903 F.2d 146, 157 (2d Cir.1990) (analyzing ban on panhandling on New York City sub-ways under intermediate scrutiny, even while expressingdoubt as to whether "begging and panhandling possess somedegree of a communicative nature").[5] Contrary to plaintiffs' argument, the material supportrestriction here does not warrant strict scrutiny because it isnot aimed at interfering with the expressive component oftheir conduct but at stopping aid to terrorist groups. CompareO'Brien,
391 U.S. at 376
-77 (applying intermediate scrutinyto regulation prohibiting the burning of any draft card) withJohnson,
491 U.S. at 406
(applying strict scrutiny to law pro-hibiting only the burning of flags which offended witnesses).Intermediate scrutiny applies where, as here, "a regulation . . .serves purposes unrelated to the content of expression." Wardv. Rock Against Racism,
491 U.S. 781, 791
(1989).[6] When we review under the intermediate scrutiny stan-dard, we must ask four questions: Is the regulation with thepower of the government? Does it promote an important orsubstantial government interest? Is that interest unrelated tosuppressing free expression? And, finally, is the incidentalrestriction on First Amendment freedoms no greater than nec-essary? See O'Brien,
391 U.S. at 377
; Jones Intercable, Inc.v. City of Chula Vista, 80 F.3d 320, 325 (9th Cir. 1996).[7] Here all four questions are answered in the affirmative.First, the federal government clearly has the power to enactlaws restricting the dealings of United States citizens with for-eign entities; such regulations have been upheld in the pastover a variety of constitutional challenges. See , e.g., Regan v.Wald,
468 U.S. 222, 244
(1984) (restrictions on travel to Cubadid not violate Fifth Amendment); Zemel v. Rusk,
381 U.S. 1
,16-17 (1965) (same); see also DKT Mem'l Fund Ltd. v.Agency for Int'l Dev., 887 F.2d 275, 295 (D.C. Cir. 1989)("[T]he right of Americans to associate with nonresidentaliens `is not absolute.' ") (quoting Palestine Info. Office v.Shultz, 853 F.2d 932, 941 (D.C. Cir. 1988)); Teague v.Regional Comm'r of Customs, 404 F.2d 441, 445 (2d Cir.1968) (upholding regulations "designed to limit the flow ofcurrency to specified hostile nations" despite the fact that reg-ulations "impinge[d] on first amendment freedoms"). Second,the government has a legitimate interest in preventing thespread of international terrorism, and there is no doubt thatthat interest is substantial.3 Third, this interest is unrelated tosuppressing free expression because it restricts the actions ofthose who wish to give material support to the groups, not theexpression of those who advocate or believe the ideas that thegroups supports.[8] So the heart of the matter is whether AEDPA is wellenough tailored to its end of preventing the United Statesfrom being used as a base for terrorist fundraising. Becausethe judgment of how best to achieve that end is stronglybound up with foreign policy considerations, we must allowthe political branches wide latitude in selecting the means tobring about the desired goal. Plaintiffs argue that the priorstatutory scheme, which allowed the donation of humanitarianassistance to those who were not directly involved in terroristactivity, see 18 U.S.C. S 2339A(b) (1994) (amended 1996),was properly tailored and the current statutory scheme istherefore overbroad. But the fact that the prior statutoryscheme was narrower tells us nothing about whether the cur-rent scheme is overbroad, because we don't know how wellthe prior scheme worked. Presumably Congress thought thatit did not work well enough and so decided to broaden it.Moreover, the Supreme Court has held that the governmentneed not select the least restrictive or least intrusive means ofaccomplishing its purpose. See Ward,
491 U.S. at 798
.[9] Congress explicitly incorporated a finding into the stat-ute that "foreign organizations that engage in terrorist activityare so tainted by their criminal conduct that any contributionto such an organization facilitates that conduct. " AEDPAS 301(a)(7), 110 Stat. at 1247. It follows that all material sup-port given to such organizations aids their unlawful goals.4Indeed, as the government points out, terrorist organizationsdo not maintain open books. Therefore, when someone makesa donation to them, there is no way to tell how the donationis used. Further, as amicus Anti-Defamation League notes,even contributions earmarked for peaceful purposes can beused to give aid to the families of those killed while carryingout terrorist acts, thus making the decision to engage in terror-ism more attractive. More fundamentally, money is fungible;giving support intended to aid an organization's peacefulactivities frees up resources that can be used for terrorist acts.We will not indulge in speculation about whether Congresswas right to come to the conclusion that it did. We simplynote that Congress has the fact-finding resources to properlycome to such a conclusion. Thus, we cannot say that AEDPAis not sufficiently tailored.D. Plaintiffs also argue that the statute violates their Firstand Fifth Amendment rights by giving the Secretary"unfettered discretion" to limit their right to associate withcertain foreign organizations, and by insulating her decisionsfrom judicial review. Plaintiffs rely on Forsyth County v.Nationalist Movement,
505 U.S. 123
(1992), and GaudiyaVaishnava Soc. v. City of San Francisco, 952 F.2d 1059 (9thCir. 1991). These cases involved licensing schemes that wereheld to violate the Constitution by granting government offi-cials unfettered discretion to regulate First Amendment activ-ity. We note that the regulations in Forsyth and GaudiyaVaishnava directly governed activities protected by the FirstAmendment. In Forsyth it was a parade; in GaudiyaVaishnava it was the sale of merchandise carrying political,religious, philosophical or ideological messages. In bothcases, government officials were empowered to permit or pro-hibit the activity entirely at their discretion. As we havealready explained, AEDPA does not regulate speech or asso-ciation per se. Rather, the restriction is on the act of givingmaterial support to designated foreign organizations. The gov-ernment may regulate expressive conduct to a greater degreethan pure speech or association. See p. 2366 supra.[10] Moreover, AEDPA does not grant the Secretary unfet-tered discretion in designating the groups to which givingmaterial support is prohibited. The statute authorizes the Sec-retary to designate only those groups that engage in terroristactivities. This standard is not so vague or indeterminate as togive the Secretary unfettered discretion. For example, the Sec-retary could not, under this standard, designate the Interna-tional Red Cross or the International Olympic Committee asterrorist organizations. Rather, the Secretary must have rea-sonable grounds to believe that an organization has engagedin terrorist acts--assassinations, bombings, hostage-takingand the like--before she can place it on the list. See 8 U.S.C.S 1182(a)(3). This standard is sufficiently precise to satisfyconstitutional concerns. And, because the regulation involvesthe conduct of foreign affairs, we owe the executive brancheven more latitude than in the domestic context. See Freedomto Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9thCir. 1996).[11] Plaintiffs argue that any decision the Secretary makesin designating an organization is essentially unreviewable.However, 8 U.S.C. S 1189(b) provides for judicial review ofthe Secretary's decision in the United States Court of Appealsfor the District of Columbia Circuit. Although plaintiffs com-plain that the review is ineffectual because of the degree ofdeference accorded to the Secretary's decision, that is a neces-sary concomitant of the foreign affairs power. In any event,that challenge must be raised in an appeal from a decision todesignate a particular organization.E. Finally, Plaintiffs challenge AEDPA on vaguenessgrounds. In the district court, they alleged that "foreign terror-ist organization" and "material support," as defined inAEDPA, were void for vagueness. The district court agreedin part, finding that two of the components included withinthe definition of material support, "training" and "personnel,"were impermissibly vague. It enjoined the prosecution of anyof the plaintiffs' members for activities covered by theseterms. The district court did not abuse its discretion in doingso.[12] When a criminal law implicates First Amendment con-cerns, the law must be "sufficiently clear so as to allow per-sons of `ordinary intelligence a reasonable opportunity toknow what is prohibited.' " Foti v. City of Menlo Park, 146F.3d 629, 638 (9th Cir. 1998) (quoting Grayned v. City ofRockford,
408 U.S. 104, 108
(1972)). Accord United States v.Griefen, _______ F.3d _______, 2000 WL 16553, *11 (9th Cir. Jan 12,2000). It is easy to see how someone could be unsure aboutwhat AEDPA prohibits with the use of the term "personnel,"as it blurs the line between protected expression and unpro-tected conduct. See, e.g., Free Speech Coalition v. Reno, 98F.3d 1083, 1095-96 (9th Cir. 1999) (prohibition of imagesthat "appear[ ] to be" or "convey the impression" of a minorengaged in sexual activity is void for vagueness and over-broad as it could prohibit "material that has been accordedFirst Amendment protection"). Someone who advocates thecause of the PKK could be seen as supplying them with per-sonnel; it even fits under the government's rubric of freeingup resources, since having an independent advocate frees upmembers to engage in terrorist activities instead of advocacy.But advocacy is pure speech protected by the First Amend-ment.In order to keep the statute from trenching on such advo-cacy, the government urges that we read into it a requirementthat the activity prohibited be performed "under the directionor control" of the foreign terrorist organization. While weconstrue a statute in such a way as to avoid constitutionalquestions, see Crowell v. Benson,
285 U.S. 22, 62
(1932), weare not authorized to rewrite the law so it will pass constitu-tional muster, see Swain v. Pressley,
430 U.S. 372
, 378-79n.11 (1977); see also United States v. United States Dist.Court for the Cent. Dist. of Cal., 858 F.2d 534, 542 (9th Cir.1988) ("[A]lthough we may strain to construe legislation soas to save it against constitutional attack, we must not and willnot carry this to the point of perverting the purpose of a stat-ute or judicially rewriting it.") (citations and internal quota-tion marks omitted). This is especially true in the case of aninterlocutory appeal from a preliminary injunction, because ofthe deferential standard of review applicable in such situa-tions. See Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996).[13] The term "training" fares little better. Again, it is easyto imagine protected expression that falls within the boundsof this term. For example, a plaintiff who wishes to instructmembers of a designated group on how to petition the UnitedNations to give aid to their group could plausibly decide thatsuch protected expression falls within the scope of the term"training." The government insists that the term is best under-stood to forbid the imparting of skills to foreign terrorist orga-nizations through training. Yet, presumably, this definitionwould encompass teaching international law to members ofdesignated organizations. The result would be different if theterm "training" were qualified to include only military train-ing or training in terrorist activities. Because plaintiffs havedemonstrated that they are likely to succeed on the merits oftheir claim with respect to the terms "training" and"personnel," we conclude that the district court did not abuseits discretion in issuing its limited preliminary injunction.5The judgment of the district court is AFFIRMED.
___________________________FOOTNOTES 1 What is at issue here is the right of Americans to express their associa-tion with foreign political groups through donations. The political advo-cacy of the PKK and LTTE directed toward their own governments is notprotected by our First Amendment. Cf. United States v. Verdugo-Urquidez,
494 U.S. 259
(1990) (refusing to extend constitutional protec-tion to Mexican citizen).2 Buckley explained that a candidate spending his own money to get hismessage out was political speech whereas a donation was symbolicspeech. See
424 U.S. at 21
("A limitation on the amount of money a per-son may give to a candidate or campaign organization thus involves littledirect restraint on his political communication, for it permits the symbolicexpression of support evidenced by a contribution but does not in any wayinfringe the contributor's freedom to discuss candidates and issues.").3 Plaintiffs complain that the statute allows the designation not only ofgroups who threaten our "national defense," but also those groups thatimperil our "foreign relations" or "economic interests." But "[p]rotectionof the foreign policy of the United States is a governmental interest ofgreat importance, since foreign policy and national security considerationscannot neatly be compartmentalized." Haig v. Agee,
453 U.S. 280
, 307(1981). The same, of course, is true of our economic interests.4 Plaintiffs argue that this finding is undercut by other portions of thestatute that allow the donation of unlimited amounts of medicine and reli-gious items. We see things differently. Congress is entitled to concludethat respect for freedom of religion militates in favor of allowing religiousitems to be donated to foreign organizations, even though doing so mayincidentally aid terrorism. Further it could also rationally decide that thehumanitarian value of providing medicine to such organizations outweighsthe risk that the medicine would be sold to finance terrorist activities. Con-gress is entitled to strike such delicate balances without giving up its abil-ity to prohibit other types assistance which would promote terrorism.5 The government invites us to cure any possible vagueness problemswith the statute by including the term "knowingly" in it. However, theterm "knowingly" modifies the verb "provides," meaning that the onlyscienter requirement here is that the accused violator have knowledge ofthe fact that he has provided something, not knowledge of the fact thatwhat is provided in fact constitutes material support.