2ND LEAD (Corrections)

US Law allowing legal challenge to LTTE terror listing remains vacuous

[TamilNet, Thursday, 02 August 2012, 11:21 GMT]
"The LTTE's military wing does not exist, and as such, there is no rational basis to continue to proscribe the LTTE as terrorist. However, the State Department continues the ban on the safe presumption that the ban is essentially immune to challenge, an immunity fortified by the threat of material support charges for an individual purporting to represent the LTTE in American jurisdiction," said legal sources in Washington, pointing out that statute [1189] that allows legal challenge to continued "terrorist" designation is toothless and vacuous when confronting anti-terror statute [2339b] that threatens criminal prosecution on any one who is willing to mount a legal challenge.

8 USC § 1189(c)(1), which appears to provide an avenue to challenge any designation of a Foreign Terrorist Organization[FTO] states: "Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit."

However, interpreting "material support" provision in the statute 2339b, the US Supreme Court, in Holder v. Humanitarian Law project (2010), ruled that "material support," includes peaceful advocacy and peacemaking assistance given to an FTO, and therefore, illegal under 2339b.

Therefore, there is no remedy, legal sources said. Threat of prosecution under the material support statutes render any legal avenue to challenge the ban as form without substance.

"For the United States, continuing the ban on the LTTE appears necessary for the ongoing material support prosecutions and extradition requests. Or else, LTTE deproscription would amount to an intervening change in controlling law which would allow appeal of any outcome determinations which flowed from the ban. Recent extradition request of a Australian resident is a case in point," Tamils Against Genocide [TAG], a US-based activist group, said.

"If the LTTE is de-proscribed, this act will have less to do with whether the LTTE exists in fact, and more to do with whether the Justice Department's silent timetable to prosecute and extradite Tamils with alleged prior affiliation with the organization is complete," TAG added.

The State Department continues the LTTE ban post-Mu'l'livaaykkaal in such a legal context, with no LTTE military wing and no threat of domestic legal challenge. It does so within a foreign policy agenda, architected by current Asst. Secretary of State for South Asia, Robert Blake, that tepidly pressures Sri Lanka for soft accountability without retributive justice for the Tamil killing field at Mu'l'livaaykkaal, while openly supporting armed liberation movements in Syria and Libya, Tamil circles said.


External Links:
Cornell: 18 USC § 2339B - Providing material support or resources to designated foreign terrorist organizations
NYT: Lawyers Seeking Terror Suspect’s Case Sue U.S.
Cornell: 8 USC § 1189 - Designation of foreign terrorist organizations
CCR: Holder v. Humanitarian Law Project
Tufts:  Proscription Problems: The Practical Implications of Terrorist Lists on Diplomacy

 

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