further the organization's unlawful ends, and that the prohibition violates the First and Fifth Amendments by granting the Secretary of State effectively unreviewable authority to license speech by designating foreign organizations as "terrorist."

The January 23, 2004 opinion, authored by Judge Collins of the U.S. District Court in Los Angeles and amended on January 30, 2004, declared the term "expert advice or assistance” – added to the definition of “material support" by the USA Patriot Act - void for vagueness under the First Amendment. Judge Collins found that this term, like the terms "training" and "personnel," which had been added to the definition of material support in 1996 – was not sufficiently clear as to the activities that it prohibited and could be construed to include advocacy and associational activities protected by the First Amendment. Id. at *43-*45. The government is expected to appeal this decision to the Ninth Circuit. See generally J. Mintz, "Part of Patriot Act Is Struck Down," Washington Post, Jan. 27, 2004, at A-15, J. Bravin, “Judge Deals Blow to the Patriot Act," Wall Street Journal, Jan. 27, 2004, at A-6, E. Lichtblau, "Citing Free Speech, Judge Voids Part of Antiterror Act," N.Y. Times, Jan. 27, 2004, at A-21.

The second suit that challenges the constitutionality of a USA Patriot Act provision is Muslim Community Association of Ann Arbor, et al. v. Ashcroft, No. 03-CV-72913 (E.D. Mich.). This suit was filed by the ACLU in July 2003, on behalf of six organizations that support the needs of Arab Americans and Muslims. The Muslim Community Association suit attacks the constitutionality of Section 215 of the USA Patriot Act, a provision amending the Foreign Intelligence Surveillance Act of 1978 (FISA). Section 215 permits the FBI to obtain in total secrecy "any tangible things," including "books, records, papers, documents, and other items," whether they are in a person's home or in the possession of a third party such as a library, hospital, Internet service provider, or political organization, on a simple showing that they are "sought for" an ongoing foreign intelligence, counterintelligence, or international terrorism investigation. Under Section 215, the government need not make the showing of probable cause to believe that the target of its order is engaged in criminal activity. Parties served with a Section 215 order are automatically subject to a "gag order," which bars them from disclosing the existence of the order to the target or anyone else. As a result, individuals do not know whether or not they are targets of a Section 215 order. Moreover, Section 215 orders are more onerous than grand jury subpoenas in that there are no established procedures under which a party served with such an order can file a motion to quash in a court.

The Muslim Community Association plaintiffs allege that Section 215 infringes their rights to free speech, privacy, and due process in violation of the First, Fourth, and Fifth Amendments See D. Eggen, "Seizure of Business Records Is Challenged," Washington Post, July 31, 2003, at A-2. In October 2003, the Department of Justice filed a motion to dismiss the lawsuit, arguing that the plaintiffs did not have standing to sue and that Section 215 was constitutional. See D. Shepardson, “Dismiss Patriot Act Challenge, Feds Urge," Detroit News, Oct. 7, 2003. The NAACP submitted an amicus brief in support of the plaintiffs in which it described the chilling effect on membership caused by government requirements to disclose the names of its members. The brief stated that during the 1960's, NAACP members “feared they would lose their jobs and be attacked physically if their membership in the organization was disclosed." Judge Denise Page Hood heard argument on the government's motion on December 3, 2003, and a decision is expected shortly.

On September 18, 2003, Attorney General Ashcroft admitted that the government had never used Section 215. See E Lichtblau, “Government Says It Has Yet to Use New Power to Check Library Records," N.Y. Times, Sept. 19, 2003, at A-16 Nevertheless, the Department of Justice takes the position that the government needs the ability to conduct terrorism investigations in secret

In addition to the two above-described affirmative challenges to the USA Patriot Act provisions, the ACLU litigated a suit under the Freedom of Information Act seeking information on the government's use of the surveillance and investigatory tools authorized by USA Patriot Act Section 206 (non-FISA provision allowing for roving wiretaps), Section 213 (non-FISA provision allowing for "sneak and peek" searches and seizures), Section 214 (FISA provision loosening the restrictions on the use of pen registers and trap and trace devices), and Section 215 (FISA provision allowing the FBI to obtain "tangible things" on showing that they are “sought for" an ongoing foreign intelligence, counterintelligence, or international terrorism investigation). ACLU v. Dept. of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003). DOJ turned over only a few of the documents sought by the ACLU, and refused to provide statistical records showing how broadly it has been using its USA Patriot Act powers on the grounds that such information was covered by the FOIA exemption for classified national security documents, 5 USC. § 552(b)(1). In her May 2003 decision, Judge Huvelle of the U.S. District Court for the District of Columbia dismissed the action with prejudice, adopting the government's position that the withheld documents were covered by this exemption. No appeal was filed from this decision, and the time to do so has expired

VII.

Decisions of the Foreign Intelligence Surveillance Courts.

The Foreign Intelligence Surveillance Act establishes a highly secretive Foreign Intelligence Surveillance Court (FISC), which has the authority to issue orders permitting the government to conduct clandestine wiretaps and physical searches based on a one-sided presentation by the DOJ. 50 U.S.C. § 1801 et seq. Under FISA, the government need not meet the Fourth Amendment's probable cause requirements. But before the USA Patriot Act was enacted, FISA surveillance orders were available only when the gathering of foreign intelligence information was "the purpose" of the surveillance. With the introduction of Section 218 of the USA Patriot Act, however, FISA orders are available as long as the gathering of foreign intelligence information is “a significant purpose" of the surveillance.

From its inception in 1978 to early 2002, the FISC had granted all of DOJ's requests for FISA orders. However, on May 17, 2002, the FISC made history by issuing an opinion that imposed restrictions on electronic surveillance in an attempt to maintain a wall between the government's intelligence and prosecutorial functions. In August 2002, the FISC again made history by making this decision the first decision to be published in its 24 years of existence. In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611 (Foreign Intel. Surv. Ct. 2002). The opinion was also noteworthy for its disclosure that the government had "confess[ed] error in some 75 FISA applications related to major terrorist attacks directed against the United States, including misstatements and omissions of material facts."

In November 2002, however, the Foreign Intelligence Surveillance Court of Review convened for the first time since FISA was enacted, in order to review the May 2002 FISC decision, which the government had appealed. Since the government has refused to disclose the identity of the subject of the surveillance order, this individual was not a party to the proceeding However, the Court of Review granted leave to the ACLU and the National Association of Criminal Defense Lawyers to submit amici briefs.

In In re Sealed Case No. 02-001, 310 F.3d 717 (Foreign Intel. Surv. Ct. Rev. 2002) (per curiam), the Court of Review reversed the lower court decision by interpreting Section 218 of the USA Patriot Act as amending FISA to permit the government to obtain a FISA surveillance order even when the government's primary purpose is criminal investigation, as long as the government "entertains a realistic option of dealing with [the target of investigation] other than through criminal prosecution." Id. at 735. This ruling has served to tear down the procedural wall separating law enforcement operations from foreign intelligence operations that, for two decades, had served the vital function of ensuring that the government did not use its intrusive FISA surveillance powers as an end-run around the Fourth Amendment's requirement of probable cause when the government's primary interest in a target of surveillance was prosecution. The ACLU and the Bar Association of San Francisco filed motions for leave to intervene to file a petition for writ of certiorari with the Supreme Court. On March 24, 2003, however, these motions were denied. ACLU v. United States, 123 S. Ct. 1615 (2003).

At least one criminal defendant who is under prosecution on terrorism-related charges, Jeffrey Battle, filed a motion on August 30, 2003 to suppress evidence obtained under FISA on the ground that FISA is unconstitutional as it has been amended by Section 218 of the USA Patriot Act. United States v. Jeffrey Battle, et al., No. 02-CR-399 (D. Or.) (Portland). Battle's primary argument in support of his motion to suppress is that permitting FISA surveillance based on a showing that the gathering of foreign intelligence information is a significant - but not the primary - purpose of the surveillance, violates the Fourth Amendment's probable cause requirement. Battle also argued that FISA violates the Fifth and Sixth Amendments by failing to provide targets with the opportunity to bring an adversarial challenge at the point in time when the government applies for a surveillance order. In addition, Battle argued that the government targeted him for surveillance because of his exercise of his First Amendment rights thereby violating the First Amendment. The ACLU was granted permission to file an amicus brief in support of Battle's motion. However, on October 16, 2003, Battle pled guilty to one count of conspiracy to commit war against the U.S., with the remaining counts dropped, so there was no resolution of his pending motion. See "Duo Pleads Guilty to Conspiracy Against U.S.," Washington Post, Oct. 17, 2003, at A-3. More criminal defendants in other cases are expected to file comparable motions to suppress on these grounds.

VIII. Freezing the Assets of Charities Alleged to Have Supported Terrorism.

Under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq., the Secretary of Treasury has the authority to block the assets of any person or entity who 7 The criminal case against Battle is described supra, in Section V.B.

HLF was so designated in December 2001, and Siec a Cor for the Dare of Cosing construtora, cams angSE the First Fourth, and Fit Amendments and status cams under the Keigious "Becom Restoration Act and the Administrative Procedure Act Judge Kessier grand defends no nonor to dismiss the compiam, excect as it the search and seizure ciam under the fourth Amendment 5: Land Frumă te Feeft de sorod 25F Stap 25000 3000) PLF Exces de S Court of Appeals for the 2. C. Creur, which girmas in a respects, and preced the grant of summan Lagment rior of the govermet. Hah LARG Frand for heter & Jena Aeroź 393 F30 Se DC Or 20031 PDC Chout hele tha the government could rent or hearse, evidence designing HLF 14 & 52, SNE BÅDORSE, PE Seventh Crout & resoring i soba kaart is beng "unassa" able" id £ 8. NIC Crourt rejected HLFs cars under the Reingous Freedom Restoranor Act of the ground he there was "no free exercise night to fund terrorists" and that the evang Zip C supports a conclusion the HLF dc" if '5" The DC. Crout subsequent Jenee N, SÅ petition for renearing er hanc See Order (No 22-5307VDC Čr Aug 22, 2005, AB 2004, the Supreme Court derved HLF s petion for certioran HA ME Soumadhor të kohë & Dev v Ashcrot No 15-175, 2004 WL 368125 20041, see a E Amon

Last Gasp." National Tax Journal, Mar 8, 2004, zi

Subsequently, HLF learned that the original affidavit used to obtain wiretaps from the FISA Court (discussed supra, Part VII), which was prepared by Michael Resnick, an FBI counterterrorism official, had a number of errors. After the FISA Court barred Resnick from appearing before them, the FBI commenced an internal audit of Resnick's other affidavits, and discovered that the HLF affidavit similarly had errors. The FBI then prepared a new affidavit, which was approved by the FISA Court, although it remains to be seen whether evidence obtained under the old affidavit can be used at trial: See S. Braun, “Charity's Fate Seen as Test of Wider War on Terror, U.S. Accuses an Islamic Foundation of Ties to Hamas, FBI Errors may Spark a Legal Challenge," Los Angeles Times, Sept. 14, 2003.

The government has sought to maintain complete secrecy regarding its detention of an unknown number of Arab and Muslim men in the period following the September 11, 2001 attacks. In at least a few cases, courts took the extraordinary step of sealing the entire court docket on habeas petitions and civil actions brought by detainees.*

For example, Mohamed Kamel Bellahouel was a waiter at a restaurant in Delray Beach (Florida) where he coincidentally served several of the Al Qaeda hijackers in the summer of 2001. Bellahouel, an Algerian, overstayed his student visa and was illegally working without obtaining the proper immigration status. Bellahouel was detained after he was turned in by someone who claimed that she saw Bellahouel go into a movie theater with one of the hijackers. Bellahouel was detained for over five months, but was released on an immigration bond in March 2002. While detained, Bellahouel filed a habeas petition with the U.S. District Court for the Southern District of Florida, Bellahouel v. Wetzel, No. 02-CV-20034, naming the warden of the federal prison in Miami as the respondent. The entire proceeding before the district court was sealed, as was Bellahouel's subsequent appeal to the U.S. Court of Appeals for the Eleventh Circuit, which issued a sealed decision on March 31, 2003. It was only through a series of clerical errors, in which the court dockets and calendars were briefly posted online, that a reporter for the Miami Daily Business Review was able to learn about this case." The federal immigration authorities are still attempting to deport Bellahouel, who is married to an American

8

See generally Reporters Committee for Freedom of the Press. "Secret Justice: Secret Dockets" (2003), at http://www.rcfp.org/secretjustice/secretdockets/index.html.

'D. Christensen, "Feds File Sealed Response in Secrecy Case," Miami Daily Bus. Rev., Jan. 7, 2004; D. Christensen, "Journalists Ask Courts to End Secret Dockets. Miami Daily Bus. Rev. Dec. 31, 2003; D. Christensen, “Scrutinizing Supersealed Cases.” Miami Daily Bus. Rev., Dec. 2, 2003; D. Christensen, "Plea for Openness.“ Miami Daily Bus. Rev., Nov. 5, 2003, D. Christensen. "Secrecy Appealed.” Miami Daily Bus. Rev., Sept. 25. 2003, http://www.law.com/jsp/article.jsp?id=1063212087029: D Christensen, "Federal Court in Florida Hides Cases from Public,” Miami Daily Bus. Rev., May 12, 2003, http://www.law.com/jsp/article.jsp?id=1052440717444, D. Christensen, "Secrecy Within,” Miami Daily Bus. Rev., Mar. 12, 2003, http://www.law.com/jsp/article.jsp?id=1046833547729; see also D. de Vise, "Case Galvanizes Opponents of U.S. Secrecy. Miami Herald, Jan. 19, 2004; W. Richey, “Secret 9/11 Case Before High Court," Christian Science Monitor, Oct. 30, 2003, http://www.csmonitor.com/2003/1030/p01s02-usju.htm.