United States v. Lindh

Case information

• Court: United States District Court for the Eastern District of Virginia
• Docket No.: Criminal No. 02-37-A
• Decided: June 17, 2002
• Judge: Ellis, District Judge

Majority opinion

Memorandum Opinion by District Judge Ellis

John Phillip Walker Lindh ("Lindh") is an American citizen who, according to the ten-count Indictment filed against him in February 2002, joined certain foreign terrorist organizations in Afghanistan and served these organizations there in combat against Northern Alliance and American forces until his capture in November 2001. In seven threshold motions, Lindh sought dismissal of certain counts of the Indictment on a variety of grounds, including lawful combatant immunity and selective prosecution. Lindh also sought dismissal, or alternatively, transfer of venue, arguing that he could not receive a fair trial in this district owing to pre-trial publicity. All motions were denied following extensive briefing and oral argument. See United States v. Lindh, Criminal No. 02–37–A (E.D. Va. June 17, 2002) (Order). Recorded here are the reasons underlying those rulings.

I.

The Indictment's allegations may be succinctly summarized. In mid-2001, Lindh attended a military training camp in Pakistan run by Harakat ul-Mujahideen ("HUM"), a terrorist group dedicated to an extremist view of Islam. After several weeks of training, Lindh informed HUM officials that he wished to fight with the Taliban in Afghanistan. In May or June 2001 he traveled from Pakistan into Afghanistan for the purpose of taking up arms with the Taliban, eventually arriving at a Taliban recruiting center in Kabul, Afghanistan—the Dar ul-Anan Headquarters of the Mujahideen. On his arrival, Lindh presented a letter of introduction from HUM and advised Taliban personnel that he was an American and that he wanted to go to the front lines to fight.

While at the Dar ul-Anan Headquarters, Lindh agreed to receive additional and extensive military training at an al Qaeda training camp. He made this decision knowing that America and its citizens were the enemies of Bin Laden and al-Qaeda and that a principal purpose of al-Qaeda was to fight and kill Americans. In late May or June 2001, Lindh traveled to a bin Laden guest house in Kandahar, Afghanistan, where he stayed for several days, and then traveled to the al Farooq training camp, an al Qaeda facility located several hours west of Kandahar. He reported to the camp with approximately twenty other trainees and remained there throughout June and July.

During this period, Lindh participated fully in the camp's training activities, despite being told early in his stay that Bin Laden had sent forth some fifty people to carry out twenty suicide terrorist operations against the United States and Israel. As part of his al Qaeda training, Lindh participated in terrorist training courses in, among other things, weapons, orienteering, navigation, explosives and battlefield combat. This training included the use of shoulder weapons, pistols and rocket-propelled grenades, and the construction of Molotov cocktails. During his stay at al Farooq, Lindh met personally with bin Laden, who thanked him and other trainees for taking part in jihad. He also met with a senior al Qaeda official, Abu Mohammad Al–Masri, who inquired whether Lindh was interested in traveling outside Afghanistan to conduct operations against the United States and Israel. Lindh declined Al–Masri's offer in favor of going to the front lines to fight. It is specifically alleged that Lindh swore allegiance to jihad in June or July 2001.

When Lindh completed his training at al Farooq in July or August 2001, he traveled to Kabul, Afghanistan, where he was issued an AKM rifle with a barrel suitable for long range shooting. Armed with this rifle, Lindh, together with approximately 150 non-Afghani fighters, traveled from Kabul to the front line at Takhar, located in Northeastern Afghanistan, where the entire unit was placed under the command of an Iraqi named Abdul Hady. Lindh's group was eventually divided into smaller groups that fought in shifts against Northern Alliance troops in the Takhar trenches, rotating every one to two weeks. During this period, Lindh carried various weapons with him, including the AKM rifle, an RPK rifle he was issued after the AKM rifle malfunctioned, and at least two grenades. He remained with his fighting group following the September 11, 2001 terrorist attacks, despite having been told that Bin Laden had ordered the attacks and that additional al Qaeda personnel were being sent from the front lines to protect Bin Laden and defend against an anticipated military response from the United States. Indeed, it is specifically alleged that Lindh remained with his fighting group from October to December 2001, after learning that United States military forces and United States nationals had become directly engaged in support of the Northern Alliance in its military conflict with Taliban and al Qaeda forces.

In November 2001, Lindh and his fighting group retreated from Takhar to the area of Kunduz, Afghanistan, where they ultimately surrendered to Northern Alliance troops. On November 24, 2001, he and the other captured Taliban fighters were transported to Mazar-e-Sharif, and then to the nearby Qala-i-Janghi prison compound. On November 25 Lindh was interviewed by two Americans—Agent Johnny Micheal Spann from the Central Intelligence Agency (CIA) and another government employee. Later that day, Taliban detainees in the QIJ compound attacked Spann and the other employee, overpowered the guards, and armed themselves. Spann was shot and killed in the course of the uprising and Lindh, after being wounded, retreated with other detainees to a basement area of the QIJ compound. The uprising at QIJ was eventually suppressed on December 1, 2001, at which time Lindh and other Taliban and al Qaeda fighters were taken into custody by Northern Alliance and American forces.

Following his capture, Lindh was interrogated, transported to the United States, and ultimately charged in this district with the following offenses in a ten-count Indictment: (i) conspiracy to murder nationals of the United States, including American military personnel and other governmental employees serving in Afghanistan following the September 11, 2001 terrorist attacks, in violation of 18 U.S.C. § 2332(b)(2) (Count One); (ii) conspiracy to provide material support and resources to HUM, a foreign terrorist organization, in violation of 18 U.S.C. § 2339B (Count Two); (iii) providing material support and resources to HUM, in violation of 18 U.S.C. § 2339B and 2 (Count Three); (iv) conspiracy to provide material support and resources to al Qaeda, a foreign terrorist organization, in violation of 18 U.S.C. § 2339B (Count Four); (v) providing material support and resources to al Qaeda, in violation of 18 U.S.C. § 2339B and 2 (Count Five); (vi) conspiracy to contribute services to al Qaeda, in violation of 31 C.F.R. §§ 595.204 and 595.205 and 50 U.S.C. § 1705(b) (Count Six); (vii) contributing services to al Qaeda, in violation of 31 C.F.R. §§ 595.204 and 595.205 and 50 U.S.C. § 1705(b) and 18 U.S.C. § 2 (Count Seven); (viii) conspiracy to supply services to the Taliban, in violation of 31 C.F.R. §§ 545.204 and 545.206(b) and 50 U.S.C. § 1705(b) (Count Eight); (ix) supplying services to the Taliban, in violation of 31 C.F.R. §§ 545.204 and 545.206(a) and 50 U.S.C. § 1705(b) and 18 U.S.C. § 2 (Count Nine); and (x) using and carrying firearms and destructive devices during crimes of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A), 924(c)(1)(B)(ii) and 2 (Count Ten).

At issue are the following seven threshold motions to dismiss or transfer filed by the defense: (i) motion to dismiss or, in the alternative, to transfer venue based on pre-trial publicity; (ii) motion to dismiss Count One for failure to state a violation of the charging statute; (iii) motion to dismiss Counts Six, Seven, Eight and Nine as lacking statutory authority; (iv) motion to dismiss Counts Eight and Nine for selective prosecution; (v) motion to dismiss Counts Two through Nine on freedom of association, overbreadth, and vagueness grounds; (vi) motion to dismiss Counts Two, Three, Four and Five for failure to state a claim under the charging statute; and (vii) motion to dismiss Count Ten on the ground that Lindh did not commit a crime of violence. Each motion is separately addressed.

II.

Lindh requests dismissal of the Indictment on the ground that media attention surrounding this case has been so prejudicial as to deprive him of his Sixth Amendment right to a fair trial, and alternatively requests a transfer of venue to the Northern District of California pursuant to Rule 21(b), Fed.R.Crim.P. The Sixth Amendment guarantees in all criminal prosecutions the right to trial by an impartial jury. In certain extraordinary circumstances, pervasive and inflammatory pre-trial publicity may compromise this right. The burden of establishing prejudicial pre-trial publicity rests on the defendant. To warrant dismissal of an indictment on this ground, a defendant must establish that he cannot obtain a fair trial anywhere in the country owing to prejudicial pre-trial publicity. Dismissal is appropriate only where publicity is so widespread and pervasive that a change of venue would be ineffective to assure a defendant a fair trial. Sheer volume of publicity alone does not deny a defendant a fair trial; it is also important to distinguish between factual and inflammatory publicity, as it is chiefly the latter that risks poisoning the venire.

Dismissal of an indictment for prejudicial publicity is a severe remedy and rarely warranted; transfer is likewise unwarranted unless the pre-trial publicity in the district is so inherently prejudicial that trial proceedings must be presumed tainted. Transfers based on publicity are not often granted because the effects of publicity on the venire are generally determined by careful voir dire examination. Only where voir dire reveals that an impartial jury cannot be impanelled would a change of venue be justified. Jurors need not be totally ignorant of the facts; it is sufficient if a juror can set aside impressions and render a verdict based on the evidence presented in court.

Applying these principles here, neither dismissal nor transfer is warranted on the current record. This prosecution has occasioned considerable nationwide publicity and it is likely that few citizens will not have read or heard of the case. But volume alone is not sufficient; what matters is whether prospective jurors can set aside impressions and render a verdict based on the evidence and the court's instructions. All prospective jurors will be carefully questioned as to what they have heard and whether they have formed opinions; no juror will be qualified to serve unless the Court is satisfied that the juror can put aside prior impressions, pay close attention to the evidence, and render a fair and impartial verdict based solely on the evidence and the Court's instructions.

The nature of the publicity here is largely factual rather than inflammatory. While some opinion pieces may be inflammatory, the record does not warrant concluding that publicity is so inherently prejudicial that proceedings in this district must be presumed tainted, and the proof will be in the voir dire results. The court is reasonably assured that more than a sufficient number of qualified, impartial jurors will be identified through voir dire.

Lindh's expert reports by Neil Vidmar and Steven Penrod do not persuasively support dismissal or transfer. Vidmar's survey of randomly interviewed individuals in this district and comparison districts concluded that attitudes in Virginia did not differ materially from the rest of the country and that approximately 74% of Northern Virginia respondents indicated they could be fair and impartial if seated as jurors, a percentage exceeding that reported for California. Penrod's content analysis of newspaper coverage is methodologically flawed in failing to account for television or internet publicity and differences in newspaper circulation, and where Alexandria newspapers were found less favorable, differences were often statistically insignificant. Personal connections of potential jurors to the September 11 attacks are matters to be addressed during voir dire; Lindh is not entitled to a 'favorable' jury, only a fair and impartial one.

Lindh's motion to transfer for convenience under Rule 21(b) is also unpersuasive. Multiple factors counsel against transfer: the trial will proceed more expeditiously in this district; the district is prepared to handle security concerns; the prosecution team, relevant documents, the defendant, and many potential witnesses are located in or near this district. The fact that several of Lindh's attorneys reside in California is an inconvenience of his choosing and does not justify transfer.

In conclusion, Lindh has failed to establish that pre-trial publicity has been so inflammatory and prejudicial that a fair trial is absolutely precluded and that the indictment should be dismissed or that a transfer of venue is appropriate. The appropriate course is to continue proceedings in this district and conduct a thorough voir dire to ensure selection of a fair and impartial jury.

III.

Lindh claims Count One should be dismissed because, as a Taliban soldier, he was a lawful combatant entitled to lawful combatant immunity. Lawful combatant immunity, rooted in customary international law and reflected in the Geneva Convention Relative to the Treatment of Prisoners of War (GPW), forbids prosecution of soldiers for lawful belligerent acts committed during armed conflicts against legitimate military targets. Article 87 of the GPW states that combatants may not be sentenced except as would be provided for members of the armed forces of the opposing power who have committed the same acts, and Article 99 provides that no prisoner of war may be tried or sentenced for an act not forbidden by the law of the detaining power or by international law in force at the time. The portions of the GPW pertinent here are self-executing and part of American law, binding in federal courts under the Supremacy Clause.

The immunity is not automatically available to anyone who takes up arms; it may be invoked only by members of regular or irregular armed forces who fight on behalf of a state and comply with requirements for lawful combatants. The GPW and customary international law set forth four criteria for lawful combatant status: (i) the organization must be commanded by a person responsible for his subordinates; (ii) the organization's members must have a fixed distinctive emblem or uniform recognizable at a distance; (iii) the organization's members must carry arms openly; and (iv) the organization's members must conduct their operations in accordance with the laws and customs of war. The question here is whether Lindh is a lawful combatant entitled to immunity under the GPW.

The President has determined that Lindh, as a member of the Taliban, is an unlawful combatant and may not invoke lawful combatant immunity. The government argues that the President's determination, made pursuant to his Commander-in-Chief and foreign affairs powers and Congress's authorization to use necessary force, is not subject to judicial review because it is a nonjusticiable political question. The court finds that the political question argument is unpersuasive. Treaty interpretation and application do not implicate the political question doctrine in a way that forecloses judicial review, and the existence of judicially manageable standards counsels review of the President's determination.

Executive treaty interpretations are entitled to deference. By analogy to Chevron deference for agencies, treaty interpretation and application warrant substantial deference to the President's interpretation, given his constitutional responsibilities in foreign affairs and military operations. That deference is substantial but not conclusive; the President's interpretation and application are entitled to great weight so long as they are reasonable and not contradicted by the treaty or the facts.

Applying the GPW criteria, Lindh bears the burden of establishing the affirmative defense that the Taliban satisfied the four criteria required for lawful combatant status. Lindh has not carried his burden and has made no persuasive showing. The record indicates the Taliban lacked the command structure necessary for the first criterion and typically wore no distinctive uniform or emblem to satisfy the second criterion. Although members carried arms openly, the Taliban failed to conduct operations in accordance with the laws and customs of war, regularly targeting civilian populations in contravention of those laws. Accordingly, Lindh cannot meet the fourth criterion.

In sum, the President's determination that Lindh is an unlawful combatant and thus ineligible for immunity is controlling because that determination is entitled to deference as a reasonable interpretation and application of the GPW, because Lindh has failed to demonstrate otherwise, and because even absent deference the Taliban falls short under the GPW's four criteria.

IV.

Lindh argues that Counts Six through Nine should be dismissed because they charge violations of regulations promulgated in excess of the statutory authority provided by the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. § 1701 et seq. These counts concern contributing services to al Qaeda and supplying services to the Taliban in violation of 31 C.F.R. parts 545 and 595 and 50 U.S.C. § 1705(b). Lindh contends IEEPA does not authorize regulations proscribing voluntary, noncommercial donation of services to terrorist organizations.

IEEPA grants the President broad authority, under regulations, to regulate and prohibit a wide array of transactions and dealings in property in which any foreign country or national has an interest. In 1995 President Clinton issued Executive Order 12947 and the Treasury Department, via OFAC, promulgated 31 C.F.R. § 595.204, prohibiting contributions of funds, goods, or services to specially designated terrorists like al Qaeda. In 1999 President Clinton issued Executive Order 13129 relating to the Taliban, and OFAC promulgated regulations prohibiting the making or receiving of any contribution of funds, goods, or services to or for the benefit of the Taliban, and barring the supply of services by a U.S. person to the Taliban.

The dispositive question is whether the Regulations are within the scope of IEEPA. The statute's plain language authorizes regulation and prohibition of the use, dealing in, or exercising any right with respect to any property in which any foreign country or national has an interest. This sweeping language provides ample authority for the issuance of the Regulations and reaches Lindh's alleged conduct. Lindh's activities—attending training camps, using and transporting weapons and ammunition, and using Taliban and al Qaeda facilities—plainly involve use of Taliban and al Qaeda property and fall within the statute's broad common-meaning terms such as 'use,' 'dealing,' 'transactions,' and 'property.'

Even if IEEPA were ambiguous, Chevron principles would require deference to the President's and Treasury Secretary's determinations in implementing the statute, and OFAC's regulations must be given effect unless they contradict the statute or are unreasonable. The statute contains only two express exceptions, neither of which covers Lindh's conduct, and where Congress explicitly enumerates exceptions, additional exceptions should not be implied. Lindh's argument that IEEPA concerns only commercial or economic conduct is contradicted by the statute's sweeping language; the rule of lenity does not apply because the statute is not ambiguous.

Accordingly, because IEEPA's expansive plain language furnishes ample authority for the promulgation of the Regulations, the motion to dismiss Counts Six through Nine for lack of statutory authority is denied.

V.

Lindh argues that Counts Eight and Nine should be dismissed as a result of impermissible selective prosecution in violation of equal protection. He alleges (i) he is the first to be prosecuted under the cited OFAC regulations despite apparent violations by others, and (ii) his prosecution is based on his exercise of First Amendment rights. Should dismissal not be appropriate on the existing record, he seeks an evidentiary hearing.

Prosecutorial discretion is broadly entrusted to the Executive Branch and a presumption of regularity attaches to prosecutorial decisions. To prevail on a selective prosecution claim based on equal protection, a defendant must show both discriminatory effect and discriminatory purpose, a demanding standard. To obtain discovery, a defendant must make a credible showing of some evidence of each essential element. Lindh has not met this rigorous threshold.

To show discriminatory effect, Lindh must demonstrate that similarly situated individuals outside his protected class were not prosecuted. He claims a protected class of persons exercising First Amendment-anchored association with the Taliban for religious reasons, and compares himself to several entities (Telephone Systems International, Unocal, University of Nebraska at Omaha, Laili Helms, and Abdul Hakim Mojahid). Lindh fails to show these entities are similarly situated. None swore allegiance to jihad, trained at al Qaeda or Taliban camps, or traveled to front lines and engaged in combat on behalf of al Qaeda or the Taliban; thus they are not similarly situated to him.

Lindh also fails to show discriminatory purpose. The allegations in the Complaint and Indictment, documenting his conversion to Islam, religious studies, voluntary association with the Taliban, and oath of allegiance to jihad, provide context for the charges but do not demonstrate that his prosecution was motivated by discriminatory animus. Nor does IEEPA legislative history support an inference of discriminatory purpose; IEEPA and its regulations are broad enough to cover the conduct alleged. Finally, the involvement of high-level officials in the prosecution decision does not by itself imply discriminatory intent, especially given the serious and novel nature of the allegations.

Because Lindh has failed to show either discriminatory effect or purpose and has not provided sufficient evidence to warrant discovery, his selective prosecution claims and requests for discovery are denied.

VI.

Lindh seeks dismissal of Counts Two through Nine on freedom of association, overbreadth, and vagueness grounds. These counts charge him under 18 U.S.C. § 2339B with providing or conspiring to provide material support or resources to HUM and al Qaeda, and under IEEPA-based regulations with contributing or supplying services to al Qaeda and the Taliban. Lindh argues that these provisions impermissibly criminalize association.

The argument fails because Lindh is not accused of merely associating with a disfavored group engaged in advocacy; he is accused of joining and materially supporting organizations that actively engage in terrorism and violence. The First Amendment protects many forms of association and advocacy but does not license supplying terrorist organizations with resources or material support in any form, including as a combatant. Supreme Court and lower-court precedent upholding restrictions on dealings with hostile foreign entities support the conclusion that restrictions on transactions with designated foreign terrorist organizations are constitutional.

The Ninth Circuit's decision in Humanitarian Law Project rejected a facial First Amendment challenge to Section 2339B's "material support or resources" prohibition, distinguishing advocacy from providing material support. There is no constitutional right to facilitate terrorism by giving terrorists weapons, explosives, or resources. Lindh's contention that "personnel" could criminalize mere presence or advocacy is contrary to the plain meaning of "personnel," which denotes a body of persons employed in some service—i.e., persons working under the direction or control of the designated organization. A person who is merely present or an independent advocate is not part of an organization's "personnel."

Lindh's overbreadth challenge fails because to prevail on a facial challenge a party must show the statute's overbreadth is substantial in relation to its legitimate sweep. "Personnel," properly construed, does not reach a substantial amount of protected activity; it targets employees or employee-like operatives under the organization's direction or control. The IEEPA Regulations' ban on the provision of "services" similarly targets transactions with designated foreign organizations rather than mere association or advocacy, and contains exemptions for purely personal communications and informational materials.

Lindh's vagueness challenge also fails. The vagueness doctrine requires penal statutes to define offenses with sufficient definiteness that ordinary people can understand what is prohibited and to prevent arbitrary enforcement. The term "personnel" in § 2339B, when given its common meaning and read in context, gives fair notice of what is prohibited. The Regulations' prohibition on providing "services" is likewise sufficiently definite; IEEPA and related regulations have been upheld against vagueness challenges. Moreover, the offenses under IEEPA require proof of willfulness, which mitigates vagueness concerns because a scienter requirement reduces the risk of convicting those who acted innocently or without knowledge of the unlawfulness of their conduct.

Accordingly, Lindh's First Amendment, overbreadth, and vagueness challenges to Counts Two through Nine and the related regulations are denied.

VII.

Lindh moves to dismiss Counts Two through Five under Rule 12, Fed.R.Crim.P., arguing the Indictment is insufficient on its face and that his alleged conduct does not violate 18 U.S.C. § 2339B. A motion to dismiss tests whether the indictment sufficiently charges the offense. An indictment satisfies constitutional guarantees if it contains the elements of the offense and fairly informs the defendant of the charge so he may prepare a defense and plead double jeopardy in bar of future prosecutions. An indictment that tracks the statutory language and alleges essential elements in sufficient detail is immune from attack on a motion to dismiss.

The Indictment here sets forth the essential elements of the § 2339B offenses in sufficient detail. Each count realleges general allegations and specific overt acts that describe in detail the acts alleged, the dates, and the organizations involved. The Indictment plainly and adequately charges a violation of § 2339B and gives Lindh fair notice. A pretrial motion to dismiss cannot be based on a sufficiency of the evidence argument because that raises factual questions for trial.

Lindh also contends as a matter of law that his conduct does not amount to providing material support or personnel. The plain language of § 2339B covers his alleged conduct; "personnel" in its common meaning includes a body of persons usually employed in some service, and a person who joins an armed force, receives combat training, and serves in a combat unit has provided material support and personnel to that organization. The constitutional doubt doctrine and the rule of lenity do not require a narrower reading because the statute is not ambiguous. Accordingly, the motion to dismiss Counts Two through Five is denied.

VIII.

Finally, Lindh seeks dismissal of Count Ten, charging the use and carrying of firearms and destructive devices during crimes of violence, in violation of 18 U.S.C. §§ 924(c) and 2, arguing that the underlying crimes charged in Counts Four through Nine are not crimes of violence. Section 924(c)(1)(A) provides enhanced penalties for anyone who, during and in relation to any crime of violence, uses or carries a firearm. A "crime of violence" for this purpose is a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Fourth Circuit has directed a categorical approach, looking to the intrinsic nature of an offense to determine whether it qualifies as a crime of violence.

Counts Four and Five charge conspiracy and substantive violations of § 2339B for providing material support or resources to al Qaeda. Providing material support to a terrorist organization is categorically a crime of violence because such support may include weapons, explosives, or currency to purchase such instruments, and Congress recognized the violent nature of the offense by imposing enhanced penalties when death results. Analogously, conspiracies to commit crimes of violence have been uniformly held to be crimes of violence because they increase the likelihood that violent acts will be committed.

Counts Six through Nine charge conspiracy and substantive violations of IEEPA-based regulations prohibiting contributions or supplies of services to specially designated terrorists or to the Taliban. Providing services to terrorists, and to those providing safe haven and a base of operations for terrorists, is intrinsically a crime of violence. Even assuming some instances of providing support might be non-violent in a literal sense, the Indictment's allegations leave no doubt that Lindh's alleged conduct involved combat training, possession and carrying of firearms and explosives, and participation in combat—conduct that by its nature involves a substantial risk that physical force will be used.

Accordingly, Counts Four through Nine are crimes of violence within the meaning of § 924(c)(3), and Lindh's motion to dismiss Count Ten is denied.

An appropriate Order has issued.

United States v. Lindh

Case information

• Court: United States District Court for the Eastern District of Virginia
• Docket No.: Criminal No. 02-37-A
• Judges: Opinion by District Judge (author not specified in provided text)

Majority opinion

Opinion of the Court

In October 1999 and October 2001, the Secretary of State of the United States designated al Qaeda as a foreign terrorist organization. See 64 Fed.Reg. 55112 (1999); 66 Fed.Reg. 51088 (2001). This designation required a finding by the Secretary that, inter alia, al Qaeda "engages in terrorist activity ... or terrorism" and that "the terrorist activity or terrorism ... threatens the security of United States nationals or the national security of the United States." 8 U.S.C. § 1189(a)(1). To "engage in terrorist activity" means, inter alia, "to commit or to incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity." 8 U.S.C. § 1182(a)(3)(B)(iv). "Terrorist activity" includes such activities as "highjacking or sabotage;" "seizing or detaining, and threatening to kill, injure, or continue to detain, another individual;" a "violent attack upon an internationally protected person;" "an assassination;" or the use of any biological agent, chemical agent, or nuclear weapon or device or "explosive, firearm, or other weapon or dangerous device." 8 U.S.C. § 1182(a)(3)(B)(iii). Similarly, "terrorism" means "premeditated, politically motivated violence perpetrated against noncombatant targets." 22 U.S.C. § 2656f(d)(2).

Section 2339B provides: 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. 18 U.S.C. § 2339B(a)(1).

18 U.S.C. § 2339A(b).

Congress found that "international terrorism is a serious and deadly problem that threatens the vital interests of the United States," and that "foreign organizations that engage in terrorist activities are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Pub.L. No. 104–132, § 301(a)(1) & (7), 110 Stat. 1250 (1996), reprinted in 18 U.S.C. § 2339B note. Also pertinent is that the statutory definitions of "international terrorism" and "domestic terrorism" in the Chapter that includes Section 2339B involve, respectively, "violent acts or acts dangerous to human life" and "acts dangerous to human life." 18 U.S.C. §§ 2331(1)(A) and (5)(A).

See United States v. Dunn, 946 F.2d 615, 621 (9th Cir.1991) (holding that the mere possession of a sawed-off shotgun is a crime of violence because "Congress has found [it] to be inherently dangerous and generally lacking usefulness, except for violent criminal purposes"); United States v. Amparo, 68 F.3d 1222, 1225 (9th Cir.1995) (holding that possession of a disassembled and unloaded sawed-off shotgun was a crime of violence).

Section 595.205 prohibits, inter alia, conspiracies to violate section 595.204.

See Exec. Order 13099, 63 Fed.Reg. 45167 (1998).

In July 1999, in light of "the actions and policies of the Taliban ... in allowing territory under its control in Afghanistan to be used as a safe haven and base of operations for" al Qaeda, the President issued Executive Order 13129 blocking transactions with the Taliban. These prohibitions were subsequently codified in 31 C.F.R. pt. 545.

The Taliban is listed in the blocking provisions of Section 545.201. See 31 C.F.R. § 545.201(a)(1).

In support of the argument that he committed no crime of violence, Lindh cites two cases that address different statutory provisions, United States v. Johnson, 246 F.3d 330 (4th Cir.2001) and United States v. Lane, 252 F.3d 905 (7th Cir.2001). In Johnson, the Fourth Circuit evaluated the United States Sentencing Guidelines, which define a crime of violence as conduct that "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). This language differs from that used in Section 924(c) and, in any event, the crimes alleged here fit as comfortably within U.S.S.G. § 4B1.2 as they do within Section 924(c). In Lane, the Seventh Circuit, in addressing whether possession by a felon of a firearm is a crime of violence, held that to determine whether a crime of violence has been committed in violation of 18 U.S.C. § 3156(a)(4)(B), a court must ask whether there is a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. See Lane, 252 F.3d at 907–08. The court held that a crime that merely increases the likelihood of a crime of violence need not itself be a crime of violence that would bar the defendant's release on bail. See id. While the language in issue in Lane is similar to that of 924(c), Lane in no way contradicts the conclusion reached here that the crimes charged against Lindh in Counts Four through Nine are, by their nature, crimes of violence.

See United States v. Cook, 26 F.3d 507, 509 (4th Cir.1994) (holding that a sentencing court may examine the charging papers and the jury instructions to determine whether the crime for which the jury convicts a defendant was a violent act); see also United States v. Kennedy, 133 F.3d 53 (D.C.Cir.1998) (holding that district courts are entitled to look at the indictment to determine whether the charged crime was by its nature a crime of violence pursuant to Section 924(c)(3)(B)); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993) (same).

1. 1.Thus, this Memorandum Opinion elucidates and amplifies the rulings issued orally from the bench at the conclusion of the hearing on the motions.
2. 2.On October 8, 1997, HUM was designated by the Secretary of State as a foreign terrorist organization, pursuant to Section 219 of the Immigration and Nationality Act. See 62 Fed.Reg. 52650 (1997).
3. 3.According to the Indictment, the Taliban is Afghanistan's dominant political force and its members, like the members of HUM, practice an extremist form of Islam. Specifically, members of the Taliban believe in conducting 'jihad,' or holy war, against those whom they believe threaten their form of Islam, including the United States.
4. 4.The Indictment alleges that al Qaeda is an organization, founded by Osama bin Laden and others, that is dedicated to opposing non-Islamic governments with force and violence. On October 8, 1999, al Qaeda was designated by the Secretary of State as a foreign terrorist organization, pursuant to Section 219 of the Immigration and Nationality Act. See 64 Fed.Reg. 55112 (1999). The Secretary of State has also declared al Qaeda a 'specially designated terrorist,' pursuant to the International Emergency Economic Powers Act. See 66 Fed.Reg. 54404 (2001).
5. 5.See also Irvin v. Dowd, 366 U.S. 717, 722–23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) ('To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.').
6. 6.The parties accuse each other of making inappropriate and prejudicial public statements regarding the instant prosecution. The government argues that the efforts of Lindh's counsel in this regard militate against Lindh's reliance on pre-trial publicity as grounds for dismissal or transfer. See Bakker, 925 F.2d at 733 (holding that 'a defendant should not be allowed to manipulate the criminal justice system by generating publicity and then using that same publicity to support his claim that the media attention surrounding his case created a presumption of prejudice'). This is as unpersuasive as Lindh's accusation that the government's contacts with the media have been improper and in violation of Local Rule 57(A) and Rule 3.6 of the Virginia Rules of Professional Conduct. A review of the record discloses that neither party's counsel, including the Attorney General, have engaged in improper media contact in connection with this case.
7. 7.Should this not be the case after voir dire, it may be appropriate to reconsider Lindh's motion to transfer.
8. 8.Among the questions asked of the respondents were (i) what information they know about Lindh; (ii) whether they have a strongly favorable, somewhat favorable, somewhat unfavorable or strongly unfavorable opinion of Lindh; (iii) whether they view Lindh as a terrorist, a traitor, a confused young man or a person on a religious journey; (iv) whether they believe Lindh was involved in the death of CIA agent Spann; (v) whether they believe there is a connection between Lindh and the September 11, 2001 terrorist attacks; (vi) whether they knew someone who was killed or injured in the September 11, 2001 terrorist attacks; (vii) whether they believe Lindh is guilty, probably guilty, probably not guilty or definitely not guilty of the charges against him; (viii) whether they would consider a not guilty verdict very acceptable, acceptable, not acceptable or very unacceptable; (ix) what punishment they believe Lindh should receive if found guilty of the charges against him; and (x) whether they could be fair and impartial if seated as a juror at Lindh's trial.
9. 9.Specifically, the newspaper articles were coded as either favorable or unfavorable toward Lindh on a number of issues, including (i) the personal characteristics of Lindh; (ii) Lindh's connections to the Taliban, al Qaeda and bin Laden; (iii) Lindh's connection to the QIJ prison uprising resulting in the death of CIA agent Spann; (iv) the regional economic and emotional impact of the September 11, 2001 attack on the Pentagon; and (v) the instant charges against Lindh.
10. 10.Vidmar attempts to discredit this statistic, arguing that the respondents' assertions of impartiality must be viewed skeptically because such assertions reflect the 'culturally learned American view that jurors must be fair.' Yet, it is clear that such assertions of fairness and impartiality are entitled to credence and are 'not lightly to be discarded.' See Rideau v. Louisiana, 373 U.S. 723, 732, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (J. Clark, dissenting) ('[W]hen the jurors testify that they can discount the influence of external factors and meet the standard imposed by the Fourteenth Amendment, that assurance is not lightly to be discarded.').
11. 11.For example, compare the percentages of statements deemed unfavorable toward Lindh in the Alexandria newspapers versus those in Minneapolis on the following subjects: (i) Lindh criticizing America (.34 versus .30); (ii) terrorist attacks on the Pentagon (.13 versus .09); (iii) terrorist attacks on the World Trade Center (.19 versus .11); (iv) Lindh's right to counsel (.11 versus .08); (v) the conditions of Lindh's confinement (.09 versus .07); (vi) the QIJ prison uprising (.15 versus .11); and (vii) the death of CIA agent Spann (.17 versus .10). See Penrod Report, pp. 29–39.
12. 12.For example, the survey does not assign a greater weight to articles from the Washington Post than to those from the Washington Times despite the fact that the daily circulation rate of the Post (786,032) is nearly eight times that of the Times (approximately 100,000). See Penrod Report, p. 10, ¶ 23.
13. 13.Rule 21(b) provides that '[f]or the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding ... to another district.' Rule 21(b), Fed.R.Crim.P.
14. 14.Among the factors that may be considered in determining whether a Rule 21(b) transfer is appropriate are: (i) location of the defendant; (ii) location of possible witnesses; (iii) location of the events at issue; (iv) location of documents and records; (v) disruption of defendant's business; (vi) expense to the parties; (vii) location of counsel; (viii) relative accessibility of place of trial; (ix) docket condition of each district; and (x) any other special elements which might affect the transfer. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 243–44, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964).
15. 15.This case is easily distinguishable from United States v. McVeigh, 918 F.Supp. 1467 (W.D.Okla.1996), where a transfer of venue was ultimately granted based on the impact of defendant's conduct—the bombing of the Murrah Federal Office Building in Oklahoma City—on the particular district in which the case was filed. This unique and extraordinary local impact led the district judge to conclude that 'there is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state.' Id. at 1474. Indeed, in McVeigh, the very courthouse where the case would have been tried had the case not been transferred suffered collateral damage from the bombing. See id. at 1469. None of the features that motivated transfer in McVeigh is present to the same degree in the instant case.
16. 16.Lindh makes no claim of lawful combatant immunity with respect to the Indictment's allegations that he was a member or soldier of al Qaeda. Instead, Lindh focuses his lawful combatant immunity argument solely on the Indictment's allegations that he was a Taliban member. This focus is understandable as there is no plausible claim of lawful combatant immunity in connection with al Qaeda membership. Thus, it appears that Lindh's goal is to win lawful combatant immunity with respect to the Taliban allegations and then to dispute factually the Indictment's allegations that he was a member of al Qaeda. Also worth noting is that the government has not argued here that the Taliban's role in providing a home, a headquarters, and support to al Qaeda and its international terrorist activities serve to transform the Taliban from a legitimate state government into a terrorist institution whose soldiers are not entitled to lawful combatant immunity status. Put another way, the government has not argued that al Qaeda controlled the Taliban for its own purposes and that so-called Taliban soldiers were accordingly merely agents of al Qaeda, not lawful combatants.
17. 17.See, e.g., Waldemar A. Solf & Edward R. Cummings, A Survey of Penal Sanctions Under Protocol I to the Geneva Conventions of August 12, 1949, 9 Case W.Res.J. Int'l L. 205, 212 (1977).
18. 18.See James W. Garner, Punishment of Offenders Against the Laws and Customs of War, 14 Am.J. Int'l L. 70, 73 (1920); Myres S. McDougal & Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion 712 (1961).
19. 19.For example, Article 57 of the Lieber Code of 1863, which governed the conduct of war for the Union Army during the American Civil War and which served as the basis for the modern law of war treaties, provided that '[s]o soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses.' Instructions for the Government of the Armies of the United States in the Field, Headquarters, United States Army, Gen. Order No. 100 (Apr. 24, 1863), reprinted in The Laws of Armed Conflicts 3 (3d ed.1988). See also Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, T.S. No. 539; Brussels Declaration of 1874, Article IX, July 27, 1874, reprinted in The Laws of Armed Conflicts 25 (3d ed.1988); Manual of Military Law 240 (British War Office 1914).
20. 20.Treaties are typically classified as self-executing or executory. Executory treaties are addressed to the Congress and require congressional action before becoming effective in domestic courts, whereas a self-executing treaty 'is one that operates of itself without the aid of legislation.' 74 Am.Jur.2d Treaties § 3. The portions of the GPW relevant here neither invite nor require congressional action and hence fall properly into the self-executing category. See C. Vasquez, The Four Doctrines of Self–Executing Treaties, 89 Am.J. Int'l L. 695 (1995).
21. 21.See U.S. Const. art. VI, § 2 ('This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land....').
22. 22.See United States v. Noriega, 808 F.Supp. 791, 799 (S.D.Fla.1992) ('[I]t is inconsistent with both the language and spirit of the [GPW] and with our professed support of its purpose to find that the rights established therein cannot be enforced by individual POWs in a court of law.').
23. 23.Also worth noting is that even prior to the ratification of the GPW, some American courts recognized the lawful combatant immunity doctrine. See Ex Parte Quirin, 317 U.S. 1, 30–31, 63 S.Ct. 2, 87 L.Ed. 3 (1942); see also Johnson v. Eisentrager, 339 U.S. 763, 793, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (Black, J., dissenting) ('[L]egitimate 'acts of warfare,' however murderous, do not justify criminal conviction.... [I]t is no 'crime' to be a soldier....') (citing Ex Parte Quirin, 317 U.S. at 30–31, 63 S.Ct. 2, 87 L.Ed. 3); United States v. Valentine, 288 F.Supp. 957, 987 (D.P.R.1968) ('Mere membership in the armed forces could not under any circumstances create criminal liability.... Our domestic law on conspiracy does not extend that far.') (citing Ford v. Surget, 97 U.S. 594, 605–06, 24 L.Ed. 1018 (1878)).
24. 24.See, e.g., Howard S. Levie, Prisoners of War in International Armed Conflict, 59 Naval War College Int'l L.Stud. 53 n. 192 (1977). Neither presented nor decided here is the question whether lawful combatant immunity is available to one who takes up arms in combat against his own country, as the Indictment alleges Lindh did in this case. At least one commentator suggests that principles of international law permit a nation to prosecute any of its citizens who take up arms against it for treason, even if the citizen does so as part of a lawful armed force. See Allan Rosas. The Legal Status of Prisoners of War 383 (1976).
25. 25.See Classified Attachment to Government's Opposition to Motion # 2 (Combat Immunity), United States v. Lindh, Criminal No. 02–37–A (E.D.Va. June 5, 2002) (under seal).
26. 26.U.S. Const. art. II, § 2, cl. 1.
27. 27.In Chief Justice Marshall's famous words, it is 'the province and duty of the judicial department to say what the law is.' Marbury v. Madison, 5 U.S. 1 (Cr.) 137, 177, 2 L.Ed. 60 (1803).
28. 28.In Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Supreme Court described these triggering circumstances in the following terms: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
29. 29.At the highest level of abstraction, it may be argued that the Constitution commits the conduct of foreign affairs to the President. This is hardly a clear, demonstrable constitutional commitment to the President to construe and apply treaties free from judicial review. Indeed, as Baker warns, 'it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.' 369 U.S. at 211, 82 S.Ct. 691.
30. 30.See, e.g., Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 231, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) ('As [Baker v. Carr] plainly held ... the courts have the authority to construe treaties and executive agreements.'); More v. Intelcom Support Servs. Inc., 960 F.2d 466 (5th Cir.1992) (construing a treaty between United States and Philippines); United States v. Noriega, 117 F.3d 1206 (11th Cir.1997) (construing an extradition treaty between United States and Panama).
31. 31.See Kolovrat v. Oregon, 366 U.S. 187, 194, 81 S.Ct. 922, 6 L.Ed.2d 218 (1961) ('While courts interpret treaties for themselves, the meaning given them by the departments of government particularly charged with their negotiation and enforcement is given great weight.'); Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 194–85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (same); United States v. Stuart, 489 U.S. 353, 367, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989) (same). See also Restatement (Third) of Foreign Relations Law § 112 cmt. c (1987) ('Courts give particular weight to the position taken by the United States Government on questions of international law because it is deemed desirable that so far as possible the United States speak with one voice on such matters.').
32. 32.See Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
33. 33.For a more thorough discussion of this point, see Curtis Bradley, Chevron Deference & Foreign Affairs, 86 Va.L.Rev. 649 (2000).
34. 34.These criteria were first codified in large part in the Brussels Declaration of 1874, Article IX, July 27, 1874, reprinted in The Laws of Armed Conflicts 25 (3d ed.1988). These standards have long been applied by liberal democracies. As explained in the British Manual of Military Law contemporaneous with the Hague Regulations, '[i]t is taken for granted that all members of the army as a matter of course will comply with the four conditions [required for lawful combatant status]; should they, however, fail in this respect ... they are liable to lose their special privileges of armed forces.' Manual of Military Law 240 (British War Office 1914).
35. 35.Lindh asserts that the Taliban is a 'regular armed force,' under the GPW, and because he is a member, he need not meet the four conditions of the Hague Regulations because only Article 4(A)(2), which addresses irregular armed forces, explicitly mentions the four criteria. This argument is unpersuasive; it ignores long-established practice under the GPW and, if accepted, leads to an absurd result. First, the four criteria have long been understood under customary international law to be the defining characteristics of any lawful armed force. Thus, all armed forces or militias, regular and irregular, must meet the four criteria if their members are to receive combatant immunity. Were this not so, the anomalous result that would follow is that members of an armed force that met none of the criteria could still claim lawful combatant immunity merely on the basis that the organization calls itself a 'regular armed force.' It would indeed be absurd for members of a so-called 'regular armed force' to enjoy lawful combatant immunity even though the force had no established command structure and its members wore no recognizable symbol or insignia, concealed their weapons, and did not abide by the customary laws of war. Simply put, the label 'regular armed force' cannot be used to mask unlawful combatant status.
36. 36.Defendants bear the burden with respect to affirmative defenses, i.e., defenses that do not merely negate one of the elements of a crime. See Mullaney v. Wilbur, 421 U.S. 684, 697–99, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Smart v. Leeke, 873 F.2d 1558, 1565 (4th Cir.1989).
37. 37.See Greg Jaffe & Neil King, Jr., U.S. Says War is Working, but Taliban Remains, Wall St.J., Oct. 26, 2001.
38. 38.See Michael Griffin, Reaping the Whirlwind: The Taliban Movement in Afghanistan 177–78 (2001) ('On 9 and 10 September [1997], Taliban troops lined up and shot 100 Shia civilians in the villages of Qazelbad and Qul Mohammad....'); Neamatollah Nojumi, The Rise of the Taliban in Afghanistan: Mass Mobilization, Civil War, and the Future of the Region 229 (2002) ('[W]itnesses and international aid workers ... have provided detailed accounts of the mass killings, in which Taliban troops were repeatedly described as rounding up unarmed men and boys from their homes and work sites and shooting them in the head.').
39. 39.What matters for determination of lawful combatant status is not whether Lindh personally violated the laws and customs of war, but whether the Taliban did so. See GPW, art. 4.
40. 40.See 50 U.S.C. app. §§ 1–44.
41. 41.Under 50 U.S.C. § 1704, the President is authorized to delegate his power under Section 1702.
42. 42.Both President Clinton and President George W. Bush have annually continued the state of emergency proclaimed in Executive Order 12947. See 67 Fed.Reg. 3033 (2002); 66 Fed.Reg. 7371 (2001).
43. 43.31 C.F.R. § 545.201(b).
44. 44.Id. § 545.204; see also id. § 545.206 (conspiracy).
45. 45.Id. § 545.406.
46. 46.Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); see also Adams v. Dole, 927 F.2d 771, 774 (4th Cir.1991) ('As is appropriate in every case which turns on statutory construction, we begin with the language of the statute.'); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002) (holding that statutory interpretation begins 'with the language of the statute').
47. 47.Rosmer v. Pfizer, Inc., 263 F.3d 110, 117 (4th Cir.2001).
48. 48.See Dames & Moore v. Regan, 453 U.S. at 672, 101 S.Ct. 2972 (noting the 'broad authority of the Executive when acting under this congressional grant of power'); Paradissiotis v. Rubin, 171 F.3d 983, 987–88 (5th Cir.1999) (holding that IEEPA grants the President sweeping powers); Regan, 468 U.S. at 228, 232 n. 16, 244, 104 S.Ct. 3026 (recognizing the similarity in authorities under TWEA and IEEPA and their 'sweeping statutory language,' and confirming the deference due the Executive Branch's implementation of TWEA-based sanctions programs); Chas. T. Main Int'l, Inc. v. Khuzestan Water & Power Auth., 651 F.2d 800, 807 (1st Cir.1981) (noting that '[t]he language of IEEPA is sweeping and unqualified'); United States v. McKeeve, 131 F.3d 1, 10 (1st Cir.1997) ('IEEPA codifies Congress's intent to confer broad and flexible power upon the President to impose and enforce economic sanctions against nations that the President deems a threat to national security interests.'). See also United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (noting that generally the President's actions are entitled to greater deference when acting in the fields of foreign affairs or national security); Miranda v. Secretary of the Treasury, 766 F.2d 1, 3 (1st Cir.1985) (same).
49. 49.See United States v. Maxwell, 285 F.3d 336, 341 (4th Cir.2002) (holding that where a particular term is undefined within a statute, 'we turn to its dictionary definition for its common meaning'); see also United States v. Ehsan, 163 F.3d 855, 858 (4th Cir.1998) (same).
50. 50.In the course of oral argument, counsel were asked hypothetically whether IEEPA and the related Regulations would prohibit a nuclear physicist's donation of her expertise to the Taliban or al Qaeda in connection with the development of a nuclear bomb. Defense counsel's negative answer is contradicted by the sweeping breadth of IEEPA's language. The physicist's donation would plainly amount to dealing in, or a transaction with respect to, the 'property' of those organizations, namely the organizations' bomb or their plans or information to build such a bomb. It is unnecessary to reach here whether IEEPA would authorize regulations prohibiting provision of every conceivable (even implausible) service, say the delivery to the Taliban or al Qaeda of Commentary or the National Review.
51. 51.In Chevron, 467 U.S. at 843, 104 S.Ct. 2778, it was held that courts will defer to an agency's interpretation of an ambiguous statute if the agency has been charged with administering the statute and the agency's interpretation is based on a permissible reading of the statute.
52. 52.In Consarc Corp. the D.C. Circuit put the point well in connection with upholding the validity of related OFAC regulations: 'By section 1704 of the Emergency Powers Act the President may "issue such regulations, including regulations prescribing definitions, as may be necessary for the exercise of the authorities granted by this chapter." ... The President delegated his power to define the statutory terms to the Secretary of the Treasury, and OFAC exercises the delegated power on the Secretary's behalf. By these provisions OFAC has received the authority to administer the statute, so that we must give effect to OFAC's regulations unless they contradict express statutory language or prove unreasonable.' Consarc Corp. v. Iraqi Ministry, 27 F.3d 695, 701 (D.C.Cir.1994) (citations omitted).
53. 53.IEEPA provides that '[t]he authority granted to the President' does not include the authority to regulate or prohibit, directly or indirectly: (i) 'any postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value' or (ii) 'donations' of 'articles, such as food and clothing, and medicine, intended to be used to relieve human suffering.' 50 U.S.C. § 1702(b)(1)–(2).
54. 54.See Dames & Moore, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918 (nullification of attachment and liens); Paradissiotis, 171 F.3d 983 (freezing securities assets); Iraqi Ministry, 27 F.3d 695 (regarding a letter of credit); Chas. T. Main Int'l, Inc., 651 F.2d 800 (failure to pay for services).
55. 55.Not decided here is the question whether in the case of an ambiguous statute construed by the responsible executive agency, the Chevron doctrine precludes the operation of the rule of lenity. It is true that some judicial doctrines may trump Chevron deference, but it is not clear from existing authority whether the rule of lenity is such a doctrine. See Bradley, supra n. 33 at 721–22 (noting that dormant foreign affairs preemption trumps Chevron-like executive deference). In the instant case, however, it seems clear that even assuming the IEEPA is ambiguous, the rule of lenity does not apply. This follows from the fact that any ambiguity in the IEEPA's scope was resolved by the President in Executive Orders and the Treasury Secretary in the Regulations, long before Lindh's decision to engage in the alleged conduct. Lindh, therefore, had ample notice of the resolution of the ambiguity and therefore notice of the scope of the prohibition. Thus, fair notice, the justification for the rule of lenity, has no application here. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 704 n. 18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) ('The rule of lenity is premised on two ideas: first, a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed; second, legislatures and not courts should define criminal activity.') (citations and internal quotation marks omitted); see also United States v. Seidman, 156 F.3d 542, 559 (4th Cir.1998) (same).
56. 56.See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (holding that the Fifth Amendment's due process clause contains an implicit right to equal protection).
57. 57.U.S. Const. art. II, § 3; see also United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (citations omitted).
58. 58.See Armstrong, 517 U.S. at 465, 116 S.Ct. 1480; Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United States v. Olvis, 97 F.3d 739, 746 (4th Cir.1996) (holding that 'defendants bear the burden of establishing all elements of their selective-prosecution claim and, to obtain discovery on such a claim, the burden of making a credible showing of 'some evidence' on each element').
59. 59.United States v. Hastings, 126 F.3d 310, 314 (4th Cir.1997) (quoting Armstrong, 517 U.S. at 463–64, 116 S.Ct. 1480).
60. 60.Olvis, 97 F.3d at 743 (quoting Armstrong, 517 U.S. at 468, 116 S.Ct. 1480).
61. 61.See United States v. Crowthers, 456 F.2d 1074, 1079 (4th Cir.1972) ('For officials of the United States government to selectively and discriminatorily enforce [a regulation] so as to turn it into a scheme whereby activities protected by the First Amendment are allowed or prohibited in the uncontrolled discretion of these officials violates the defendants' right to equal protection of the laws embraced within the due process clause of the Fifth Amendment.').
62. 62.Lindh presents the following evidence with respect to each of these entities' contacts with the Taliban: (i) TSI worked pursuant to a contract it had won with the Taliban government to build a wireless telephone system in Afghanistan; (ii) Unocal worked on a project with the Taliban to build a natural gas pipeline from Turkmenistan through Afghanistan to Pakistan; (iii) UNO received money from Unocal to fund visits by several Taliban members to the United States; (iv) Helms, a Unocal employee, coordinated communication between the Taliban and, inter alia, the United States Department of State; and (v) Mojahid was a spokesperson and diplomat for the Taliban.
63. 63.See United States v. Hastings, 126 F.3d 310, 314 (4th Cir.1997) (holding that the mention in an Internal Revenue Service memoranda of a prosecuted individual's political affiliation, without any hint that the affiliation was the reason for prosecution, cannot be the basis for a selective prosecution claim).
64. 64.See supra Part IV.
65. 65.Lindh's argument that the mere involvement of high-ranking executive branch officers proves discriminatory intent is not supported by the lone case he cites. The case, United States v. Falk, 479 F.2d 616 (7th Cir.1973) (en banc), involved a prosecution for failure to possess a draft card. There, the Seventh Circuit vacated a defendant's conviction because, inter alia, the defendant had offered proof that the government had focused on vocal dissenters against the selective service system. See id. at 621. This proof included a statement by an Assistant United States Attorney indicating that Falk's prosecution had been approved by several officials in the United States Attorney's office, the United States Attorney, and the Department of Justice. The court stated that '[i]t is difficult to believe that the usual course of proceedings in a draft case requires such careful consideration by such a distinguished succession of officials prior to a formal decision to prosecute.' Id. at 622. This case is quite clearly not comparable to an ordinary draft case. Lindh is charged not with being merely a 'vocal dissenter,' but with being an American citizen who joined and supported international terrorist organizations hostile to this country and ultimately took up arms against his own country in a conspiracy to kill Americans. Thus, the Falk case is clearly distinguishable.
66. 66.Lindh has also failed to show that he should be granted discovery on the matter. In United States v. Wilson, 262 F.3d 305, 321 (4th Cir.2001), the Fourth Circuit reversed a district court's decision to order discovery into a prison escapee's claim of vindictive prosecution and reinstated the indictment that had been dismissed when the government refused to provide discovery. The court held that 'even before a court allows a defendant to have discovery on the government's prosecutorial decisions, the defendant must overcome a significant barrier by advancing objective evidence tending to show the existence of prosecutorial misconduct.' Id. at 315. Under the circumstances of this case, Lindh has failed to offer even 'some evidence' of discriminatory intent that could overcome the presumption of regularity and permit discovery into the government's decisionmaking process.
67. 67.Section 2339B provides that any person within the United States or subject to its jurisdiction who 'knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so' commits a felony. A 'terrorist organization' means an organization designated as such under 8 U.S.C. § 1189. See 18 U.S.C. § 2339B(g)(6). Both al Qaeda and HUM have been designated as foreign terrorist organizations by the Secretary of State. See supra Part I n. 2 and n. 4. The phrase 'material support or resources' is defined as including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. 18 U.S.C. § 2339A(b).
68. 68.Section 1705(b) of Title 50, part of IEEPA, provides that whoever 'willfully violates, or willfully attempts to violate, any license, order, or regulation issued under this chapter' commits a felony.
69. 69.For a description of 31 C.F.R. pt. 595, see supra Part IV.
70. 70.For a description of 31 C.F.R. pt. 545, see supra Part IV.
71. 71.See United States v. Matthews, 209 F.3d 338, 342 (4th Cir.2000) ('[T]he Constitution permits limitations on speech ... that constitutes no essential part of any exposition of ideas.') (internal quotation marks omitted); Rice v. Paladin Enterprises, Inc., 128 F.3d 233, 249 (4th Cir.1997) (holding that aiding and assisting 'speech' in the form of a 'hit man' instruction book bore no resemblance to the 'forms of discourse critical of the government, its policies, and its leaders, which have always animated ... the First Amendment'); American Life League, Inc. v. Reno, 47 F.3d 642, 648 (4th Cir.1995) ('The use of force or violence is outside the scope of First Amendment protection.').
72. 72.For example, in Regan v. Wald, 468 U.S. 222, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984), the Supreme Court upheld a prohibition on dealings with Cuba. The plaintiffs there contended that restrictions imposed by the President on transactions with Cuba violated their right to travel, protected by the Due Process Clause of the Fifth Amendment. The Supreme Court rejected that claim, holding that '[m]atters 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.' Id. at 242, 104 S.Ct. 3026. The Court found that the Executive's restrictions on dealings with Cuba must be sustained because of 'the President's decision to curtail the flow of hard currency to Cuba—currency that could then be used in support of Cuban adventurism—by restricting travel.' Id. at 243, 104 S.Ct. 3026. Regan was not the first case in which the Supreme Court upheld such bans. Years earlier, in Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), the Supreme Court recognized the Fifth Amendment right to travel, but nonetheless upheld the Secretary of State's refusal to validate an American citizen's passport for a journey to Cuba. Although the citizen had argued that the travel ban violated his First Amendment rights, Chief Justice Warren explained that the government's act was best seen as a mere 'inhibition of action.' Id. at 16, 85 S.Ct. 1271.
73. 73.See Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431 (9th Cir.1996) (upholding Cuban travel ban against First and Fifth Amendment attacks, noting that '[t]he purpose of the travel ban is the same now as it has been since the ban was imposed almost 35 years ago—to restrict the flow of hard currency into Cuba'); Walsh v. Brady, 927 F.2d 1229 (D.C.Cir.1991) (denying First Amendment challenge to prohibition against payments to Cuba); Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3d Cir.1972) (upholding Trading with the Enemy Act and Foreign Assets Control Regulations against First Amendment attack); Farrakhan v. Reagan, 669 F.Supp. 506 (D.D.C.1987) (rejecting a First Amendment claim by an organization wishing to transfer funds to Libya, in violation of economic sanctions regulations), aff'd without opin., 851 F.2d 1500 (D.C.Cir.1988).
74. 74.Webster's Ninth New Collegiate Dictionary 878 (1989).
75. 75.Bakal Bros., Inc. v. United States, 105 F.3d 1085, 1089 (6th Cir.1997) (quoting Webster's Third New International Dictionary 1687 (1971)).
76. 76.Thus, Lindh's contention that '[i]f one were prohibited from giving 'himself', he would be unable to associate at all,' so that '[t]he freedom of association would be rendered meaningless,' is nonsense. Def.Mem. at 12. One can readily associate with others without also committing himself to the direction or control of the organization. Far from rendering the freedom of association 'meaningless,' Section 2339B's prohibition on the providing of 'personnel' merely reflects the sensible conclusion inherent in the plain meaning of the statute, namely that providing human resources to terrorists is as inimical to the national security as providing other kinds of resources.
77. 77.See United States v. Mento, 231 F.3d 912, 921 (4th Cir.2000), vacated on other grounds, 535 U.S. 1014, 122 S.Ct. 1602, 152 L.Ed.2d 617 (2002).
78. 78.American Life League, 47 F.3d at 653.
79. 79.United States v. Hescorp, 801 F.2d 70, 77 (2d Cir.1986) (upholding IEEPA regulations).
80. 80.United States v. Ragen, 314 U.S. 513, 524, 62 S.Ct. 374, 86 L.Ed. 383 (1942); see also Posters 'N' Things, Ltd. v. United States, 511 U.S. 513, 526, 114 S.Ct. 1747, 128 L.Ed.2d 539 (1994) (holding that a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice that the conduct is proscribed).
81. 81.Section 2339B incorporates the definition of 'material support or resources' provided in 18 U.S.C. § 2339A, which prohibits the provision of material support or resources for use in connection with a terrorist act. Id. § 2339B(g)(4). As defined in that section, 'material support or resources' means 'currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.' Id. § 2339A(b). This section was amended by the USA Patriot Act so that the phrase 'currency or monetary instruments or financial securities' replaced 'currency or other financial securities' in the definition, and the term 'expert advice or assistance' was added. See USA Patriot Act, Pub.L. No. 107–56, § 805(a)(2), 115 Stat. 272, 377 (Oct. 26, 2001). These amendments are not at issue in this motion. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), codified at 18 U.S.C. § 2339B, also modified the existing definition of 'material support or resources' in Section 2339A to reflect the findings and purpose of the legislation. The definition previously excluded 'humanitarian assistance to persons not directly involved in such violations' from the list of items defined as constituting 'material support or resources.' See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103–322, § 120005, 108 Stat. 1796, 2022 (Sept. 13, 1994) (original version of statute). The AEDPA eliminated this exclusion in favor of a narrower exemption for 'medicine and religious materials.' AEDPA, § 322, 110 Stat. at 1255. The House Conference Report emphasized that 'medicine' was 'limited to medicine itself, and does not include the vast array of medical supplies,' and that 'religious materials' did not include 'anything that could be used to cause physical injury to any person.' H.R.Conf.Rep. No. 104–518, at 114 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 947.
82. 82.A 'foreign terrorist organization' for purposes of the statute is one so designated by the Secretary of State pursuant to the provisions of Section 219 of the Immigration and Nationality Act. 18 U.S.C. § 2339B(g)(6).
83. 83.The second paragraph of each count then tracks the statutory or regulatory language, with variations concerning the dates, the nature of the charge (substantive or conspiracy), and the foreign organization involved. Thus, paragraph two of Count Two reads as follows: From in or about May 2001 through in or about June 2001, the defendant, JOHN PHILLIP WALKER LINDH, subject to the jurisdiction of the United States, but outside of the jurisdiction of any particular state or district, with other persons known and unknown to the Grand Jury, did knowingly conspire to knowingly provide material support and resources, as that term is defined in 18 U.S.C. § 2339A(b), to a foreign terrorist organization, namely Harakat ul-Mujahideen ("HUM"). (In violation of 18 U.S.C. § 2339B.) Count Three reads the same as Count Two, except that the second paragraph alleges that Lindh 'did knowingly provide and attempt to provide material support and resources,' rather than conspire with others to do so. Count Four, like Count Two, is a conspiracy provision, except that it charges Lindh with conspiring with others over the period from May 2001 through December 2001 to provide material support and resources to al Qaeda. Finally, Count Five charges that Lindh committed the substantive offense of providing and attempting to provide material support and resources to al Qaeda during the same time period as alleged in Count Four.
84. 84.Lindh's motion for a bill of particulars, which sought just that type of detail, has already been denied. See United States v. Lindh, Criminal No. 02–37–A (E.D.Va. April 1, 2002) (Order).
85. 85.Rule 12, Fed.R.Crim.P., provides that '[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.' United States v. Ayarza–Garcia, 819 F.2d 1043, 1048 (11th Cir.1987).
86. 86.See also United States v. Terry, 257 F.3d 366, 372 (4th Cir.) (King, J., concurring), cert. denied, 534 U.S. 1035, 122 S.Ct. 579, 151 L.Ed.2d 451 (2001); United States v. Gallagher, 602 F.2d 1139, 1142 (3d Cir.1979); United States v. King, 581 F.2d 800, 802 (10th Cir.1978) (dismissing charging instrument on basis that '[defendants'] conduct did not constitute a violation of the statute charged' was improper, because it was 'in effect a determination of guilt made at a point in the proceedings when the district judge was without jurisdiction to render it'); 24 Moore's Federal Practice § 612.02, at 612–18 (3d ed. 1987) ('A Rule 12(b) motion to dismiss is not the proper way to raise a factual defense.').
87. 87.The dictionary definition of the term 'personnel' is 'a body of persons usually employed (as in a factory, office, or organization)' or 'a body of persons employed in some service.' These definitions are consistent with the interpretation provided by the United States Attorney's Manual: 'There are two different ways of providing 'personnel' to a designated foreign terrorist organization: 1) by working under the direction or control of the organization; or 2) by recruiting another to work under its direction or control. The statute encompasses both methods, so long as the requisite direction or control is present.' U.S.A.M. § 9–9.1.100 (2001). The broad reading of the term 'personnel' is also consistent with the Findings and Purpose of AEDPA, which provide that the statute is to be interpreted broadly, 'to provide the Federal Government the fullest possible basis, consistent with the Constitution, to prevent persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities.' AEDPA § 301(b), 110 Stat. at 1247.
88. 88.In Taylor, the Court was faced with determining the meaning of the term 'burglary' as used in the definition of 'violent felony' with respect to 18 U.S.C. § 924(e). That section provides a sentencing enhancement for an individual convicted of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g), who has three prior convictions of specified types of offenses, including burglary. Because the elements of the state crimes of 'burglary' varied widely, the Supreme Court held that a 'categorical approach' was appropriate, where the sentencing court would determine whether the prior nominal 'burglary' conviction had all the elements of a 'generic' burglary: 'an unlawful or unprivileged entry into, or remaining in a building or other structure, with intent to commit a crime.' 495 U.S. at 598, 110 S.Ct. 2143. This categorical approach 'generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.' Id. at 601, 110 S.Ct. 2143. Even this approach, however, permits the court to look to the charging document and jury instructions to determine whether 'the jury was actually required to find all the elements of generic burglary.' Id. at 601, 110 S.Ct. 2143.