UNITED STATES OF AMERICA,
v.
Muhamed MUBAYYID and Emadeddin Z. Muntasser, Defendants.

No. 05-40026-FDS.
2005.

Defendants' Motion to Dismiss and Incorporated Memorandum

Respectfully submitted, Muhammed Mubayyid, By his attorney, Michael C.
Andrews BBO# 546470), 21 Custom House Street, Boston, MA 02110, (617)
951-0072.

Emadeddin Z. Muntasser, By his attorneys, Norman S. Zalkind (BBO #
538880), Elizabeth A. Lunt (BBO# 307700), Malick W. Ghachem (BBO
#661018), Zalkind, Rodriguez, Lunt & Duncan LLP, 65a Atlantic Ave.,
Boston, MA 02110.

Susan R. Estrich, Robert Kingsley Professor of Law and Political
Science, University of Southern California Law School, University
Park, MC-0071, Los Angeles, CA 90089-0071.

Harvey Silverglate (BBO # 462640), 607 Franklin St., Cambridge, MA
02139.
Now come Defendants Emadeddin Z. Muntasser and Muhammed Mubayyid and
respectfully move, pursuant to Fed. R. Crim. P. 12(b), that this
Honorable Court dismiss the above-captioned indictment. As reason
therefor, Defendants state that the government's theory of their
criminal liability for false statements and concealment of material
facts under 18 U.S.C. § 1001(a)(1) and for a Klein conspiracy under 18
U.S.C. § 371, as reflected in the allegations stated in the
indictment, is barred by the First Amendment to the United States
Constitution, by the requirement of fair notice and the corresponding
rule of lenity, by the IRS's own regulations and instructions, and by
Supreme Court precedent concerning selective prosecution. [FN1]

FN1. These are issues which the Court can and should decide before
Defendants are subjected to a prosecution which is doomed as a matter
of law from the outset. "It is perfectly proper, and in fact mandated,
that the district court dismiss an indictment if the indictment fails
to allege facts that constitute a prosecutable offense." United States
v. Coia, 719 F.2d 1120, 1123 (11th Cir. 1983). See, e.g., United
States v. Brown, 925 F.2d 1301, 1302 (10th Cir. 1991); United States
v. Risk, 843 F.2d 1059, 1061 (7th Cir.1988); United States v. Garcia-
Ortiz, 1992 WL 71803 (N.D. Ill. 1992) at *5; United States v.
Castellano, 610 F.Supp. 1359, 1397 (S.D.N.Y. 1985). "The court must
decide every pretrial motion before trial unless it finds good cause
to defer a ruling." Fed. R. Crim. P. 12(d). Here, there is no good
cause to defer a ruling and every reason to address the issues before
subjecting Defendants and the Court to a lengthy trial at which
Defendants' contentions as to the unconstitutionality of the
government's theory and the insufficiency, as a matter of law, of the
facts alleged in the indictment to state a false statement/concealment
of material facts violation or a Klein conspiracy offense will be
amply borne out. That the Court may need to hold an evidentiary
hearing and find facts does not preclude resolution of the issue at
this juncture. See Coia, 719 F.2d at 1123.

As further reasons therefor, Defendants refer the Court to the
Memorandum incorporated herein and to the documents from the public
record [FN2] attached as an Appendix to this motion. [FN3]

FN2. This Court may take judicial notice of matters in the public
record on a hearing of a motion to dismiss. See U.S. v. Briddle, 212
F.Supp. 584, 589 (D.C.Cal. 1962) ("This Court has the power to receive
evidence - including evidence adduced by means of judicial notice -
upon the hearing of the defendants' motions to dismiss the indictment
at bar .... [I]t is now too clear for debate, as a matter of common
knowledge, that the 1933 economic emergency ended long before 1962.
Accordingly, this Court should and does now judicially notice the
fact."); and Arturet Velez v. Reynolds Tobacco Co., 429 F.3d 10, 13 n.
2 (1st Cir. 2005) (on motion to dismiss, court may consider "facts
subject to judicial notice"). An affidavit attesting to the
authenticity of the document copies included in the Appendix is
attached to this motion.

FN3. Defendants move to dismiss Count Six of the indictment on the
selective prosecution grounds set forth infra at 44, and on grounds
stated in a sealed motion filed concurrently with the instant motion.

REQUEST FOR ORAL ARGUMENT

Defendants request oral argument on the within motion.

LOCAL RULE 7.1(A)(2) STATEMENT

Counsel (by Malick W. Ghachem, Esq.) have conferred with Stephanie
Siegmann, AUSA, and have attempted in good faith to resolve or narrow
the issues.

MEMORANDUM

I. Introduction

On May 13, 2005, Judge Rya Zobel of the United States District Court
for the District of Massachusetts, sitting in the Eastern Division in
Boston, announced that after a series of delays by the government, she
was scheduling a hearing to decide on the merits of a naturalization
petition filed three years earlier by Emadeddin Muntasser, now the
defendant in the instant criminal case. [FN4] Judge Zobel had earlier
denied the government's request for a remand to the Department of
Homeland Security. She had twice allowed the Government stays to
produce additional evidence that would justify denying Mr. Muntasser
his citizenship; both times the Government failed to produce such
evidence.

FN4. Emadeddin Z. Muntasser v. Michael Chertoff et al., No. 04-
CV-1259- RWZ (Electronic Clerk's Notes for proceedings held April 7,
2005). Mr. Muntasser's naturalization petition is attached hereto as
App. at 00001.

In evident retaliation for Mr. Muntasser's naturalization lawsuit, and
in a transparent effort to block Judge Zobel's potential - and, we
believe, likely - grant of citizenship, the government secured this
facially unconstitutional indictment. It is also evident that the
government cynically manipulated its ability to select the proper
venue for hearing this case, apparently in order to avoid the risk of
being assigned the same federal judge presiding over Mr. Muntasser's
naturalization petition in a manner perhaps too independent for the
executive branch's taste, and in order to secure a judge and jury pool
that the government perceived as more favorable to it. On the Criminal
Case Cover Sheet that the Government filed under seal with its
Criminal Complaint on April 6, 2005, the Government first indicated
(correctly) "Boston and elsewhere" and "Suffolk and elsewhere" as the
city and county wherein the alleged instant offenses took place. The
Government then crossed out the words "Boston" and "Suffolk" and
replaced both with "Worcester." See App. at 00006. This was done even
though the charitable organization that is at issue in the criminal
case, Care International, is a Boston-based rather than Worcester-
based organization.
That this indictment is flawed on its face is manifest. That it
represents a series of blatant efforts at manipulation of a
citizenship case and forum shopping in this criminal case is clear
from the government's own handwriting. That it reflects a transparent
effort to manipulate the venue and judicial assignment system of the
federal courts should not be ignored.
Muntasser submitted his application for naturalization nearly four
years ago, on October 18, 2002. When interviewed by the U.S.
Immigration and Naturalization Service (INS) a year later, on November
6, 2003, he submitted amendments to the application which completed
and corrected any omissions in the application filed by prior counsel;
he was told that his application was complete and that all that
remained were for his fingerprints to be cleared by the FBI. Under 8
U.S.C. § 1447(b), the Department of Homeland Security then had 120
days from the date of Mr. Muntasser's interview to decide the
application. No decision was forthcoming. At that point, Mr. Muntasser
had the right to file suit, which he did on June 8, 2004, more than
seven months after his naturalization interview. Twice in that
lawsuit, the Government sought to postpone the required hearing, which
Judge Zobel permitted, to give the Government more time to respond,
but she refused to remand the proceeding to the Department of Homeland
Security, holding that the defendant had a right to a hearing and a
decision before the district court. She set a hearing date of May 12,
2005 and made clear to the Government that no further delays would be
permitted. [FN5]

FN5. "The next hearing will take place on May 12th, and I do not
expect the government to ask for a further continuance at that time,
despite its request for more time now. We will go forward at the next
- on the next date." See App. at 00013 (transcript of April 7, 2005
scheduling conference in Emadeddin Z. Muntasser v. Michael Chertoff et
al., No. 04-CV- 1259-RWZ).

On the day before the citizenship hearing was to take place in Boston,
and even though everything related to the instant criminal case had
taken place in the Eastern Division, the government secured an
indictment of Mr. Muntasser by a grand jury sitting in the Central
Division of Massachusetts. The indictment alleged false statements,
concealment of material facts, and a Klein conspiracy with respect to
protected First Amendment activities that occurred between 1993 and
1996. [FN6] As noted above, on the Criminal Case Cover Sheet that
accompanied the Government's criminal complaint, and in a stunningly
frank acknowledgment of the extent of its forum shopping, the
Government crossed out "Boston" and "Suffolk" and scribbled
"Worcester" in their place for purposes of designating a presumably
safe venue for the instant case. See App. at 00006. [FN7]

FN6. The indictment also alleged a single false statement involving a
1995 overseas trip with respect to Mr. Muntasser's naturalization
application.

FN7. See also Defendants' Motion for Jury Selection from the Eastern
Division of Massachusetts and the Affidavit of Attorney Malick W.
Ghachem attached thereto (filed October 5, 2006).

Judge Zobel later denied the Government's motion to dismiss Mr.
Muntasser's naturalization lawsuit, retaining jurisdiction and
ordering a stay pending the conclusion of the instant proceedings.
In an implicit acknowledgment of the frailties of this case and of the
Government's awareness that Mr. Muntasser is not in any way connected
to terrorism - notwithstanding the indictment's insinuations and
sensationalistic newspaper headlines to the contrary [FN8] - the
Government immediately agreed to Mr. Muntasser's release pending
trial. To our knowledge, this is the very rare case involving charges
colored to even remotely suggest "terrorism" where the government did
not even seek detention.

FN8. See the false, prejudicial and near-hysterical reports in the
Worcester Telegram & Gazette attached as App. at 00019 to Defendants'
Motion for Jury Selection from the Eastern Division of Massachusetts
(filed on October 5, 2006).

More important, this indictment fails to pass even minimal
constitutional scrutiny. On its face, the indictment classifies as
criminal activity conduct which is clearly protected by the First
Amendment's free exercise of religion and free speech provisions. It
fails to pass muster under the requirements of due process and fair
warning. The vagueness of the indictment requires dismissal under long-
standing principles of lenity in the construction of criminal
statutes. The Government should not be rewarded for its blatant forum
shopping and efforts to manipulate Mr. Muntasser's quest for
citizenship. For all of these reasons, this indictment should be
dismissed.

II. The Indictment

Emadeddin Muntasser has lived in the United States since 1981 and been
a permanent resident of the U.S. since 1992. A graduate of Worcester
Polytechnic University, he lives in Braintree, Massachusetts with his
wife and two children, and owns a chain of furniture stores in the
greater-Boston area that employs about forty-five persons.
Muhamed Mubayyid attended undergraduate education at the Wentworth
Institute of Technology, receiving his degree in 1989. He continued
his post-graduate education at Boston University, and received a
Master's Degree as a Systems Engineer in 1992. He is a naturalized
Australian citizen, and is married with a wife and three children, two
of whom are American citizens. He is currently unemployed, as the
Department of Homeland Security has refused to issue him the yearly
extension of his work permit after he was charged in this case. Mr.
Mubayyid became treasurer of Care in 1998.
As a young, idealistic graduate student nearly two decades ago, Mr.
Muntasser, like many young Muslims and Americans (including high and
low government officials) alike, was impressed by the courage of the
Afghan Muslims who were fighting against the Soviets in Afghanistan.
[FN9] Mr. Muntasser founded the organization Care in 1993 to provide
charitable relief to Muslims affected by the conflicts then underway
in Afghanistan and other Muslim countries, and served as its President
until resigning in 1996. Care's work was carried out by religiously
minded volunteers from the local Muslim community. Care sought to
accomplish its mission by collecting zakat (the Muslim equivalent of
Jewish tzedakah or Christian tithing), which is every Muslim's
religious obligation to donate to charity, [FN10] by giving to
destitute Muslims abroad so that they could observe the Ramadan feasts
of Eid, by distributing charitable donations to the widows and orphans
affected by the Afghan war, by publishing a newsletter and by
distributing other educational and religious materials. This
indictment seeks to punish Defendants for engaging in these
activities, even though they are i) facially protected by the First
Amendment, ii) common to other religious groups, and, importantly,
iii) identical to activities engaged in by other charities in the area
funded and sanctioned directly by the United States through the
National Endowment for Democracy and the United States Agency for
International Development.

FN9. See, e.g., Robert D. Kaplan, Soldiers of God: With the Mujahidin
In Afghanistan (Boston: Houghton Mifflin, 1990).

FN10. See Yaacov Lev, Charity, Endowments, and Charitable Institutions
in Medieval Islam (Gainesville, FL: University of Florida Press,
2005), at ix ("The notion of charity ... is deeply embedded in the
religious thought and ethics of the three monotheistic religions and
was central to the lives of medieval Jews, Muslims, and Christians. It
represented the essence of their piety and quest for nearness to
God").

The indictment in this case does not charge Defendants or Care with
providing any form of material support to terrorists. It does not
charge them with arming America's enemies or providing military
equipment to one side. Rather, it charges that the charity of an
established religion put forward ideas, distributed educational
material, solicited funds, and published a book and newsletter.
Indeed, the Government has itself conceded that the underlying conduct
specified in the indictment is perfectly legal. [FN11] Established
precedent, the identical or analogous practices of other charities,
and the recent history of Government support of similar activities by
other charities in the area all preclude the Government from deeming
such protected activity an appropriate basis for these highly
selective criminal charges.

FN11. See Government's Opposition to Defendants' Motion for Bill of
Particulars (Dkt #114) at 7 n. 1 ("The government does not allege in
the Indictment nor has it ever alleged in any public hearings or any
pleading that such activities were illegal"); and Government's
Memorandum and Opposition to Defendants Motion for Discovery (filed
under seal July 7, 2006) at 15 ("The Defendants, in this case, are not
charged with ... material support of terrorism").

The Government may seek to avoid the prohibitions of the First
Amendment by claiming, disingenuously, that it is not seeking to
punish religious activity or protected speech but only the failure to
disclose to the government that Care was planning to engage in such
activity. For the following reasons, any such argument should be
rejected out of hand as the red herring it is.
First, the forms filed by Care made clear that the charity would be
engaged in religious and educational activity. See App. at 00043 (Care
International's Articles of Incorporation, which provided that Care
was organized for "charitable, religious, educational, and scientific
purposes, including but not limited to, engage in, establish, promote,
contribute and carry out human welfare, charitable and relief
activities, programs, projects, organizations, institutions, and
funds"). The Government plainly understood this; indeed, it was
sufficiently clear that the Government deferred acting on Care's
application for charitable status because of what the IRS described as
"political [sic] sensitive" concerns relating to United States
military involvement in the areas of the world in which Care proposed
to operate. See App. at 00052 (IRS annotated review file for Care
International).
Second, the only reason to require additional information is if the
government could indeed have made a different decision in light of it
- that is, if that information would be "material" to the decision-
making process. But knowing in greater detail about the ideological
basis of a group's constitutionally protected charitable activities
could hardly serve as a basis for denying its application for 501(c)
(3) status. The unconstitutional conditions doctrine precludes the
government from accomplishing indirectly what it cannot do directly.
See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (under the
unconstitutional conditions doctrine, the Government "may not deny a
benefit to a person on a basis that infringes his constitutionally
protected interests - especially, his interest in freedom of speech");
Speiser v. Randall, 357 U.S. 513, 526 (1958) (state could not
condition property tax exemption on loyalty oath); Rosenberger v.
Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) (public
university could not condition funds for student publications on their
secular perspective); and FCC v. League of Women Voters, 468 U.S. 364
(1984) (FCC could not condition federal funds to radio stations on
editorial content). The materiality doctrine limits criminal
responsibility to information which could have influenced a government
decision. United States v. Notarantonio, 758 F.2d 777, 785 (1st Cir.
1985) (a materially false statement is one that had "a natural
tendency to influence, or was capable of influencing, the decision of
a government agency in making a determination required to be made").
Whether Care was generally sympathetic to the plight of the mujahideen
at the hands of the Soviets, and to the concept of jihad to throw off
Soviet suppression of Islam in Afghan life, surely does not fit into
that category. This is especially so given that (1) many other 501(c)
(3) organizations engaged in similar activities in this and similar
conflicts around the world, and (2) the federal government itself
supported these very same charities and, through them, the cause of
the Afghan mujahideen. [FN12] In any event, the grant of charitable
status certainly may not be conditioned on government approval of the
charity's ideological point of view. And charitable status may only be
revoked where a charitable organization engages in activity that is
contrary to fundamental public policy. See Bob Jones University v.
U.S., 461 U.S. 574, 598 (1983). [FN13] Far from engaging in activity
contrary to fundamental public policy, the Government's allegations
against Care International implicate conduct that was entirely
consistent with the public policy of the United States throughout the
1980s and into the 1990s.

FN12. The federal government also provided direct material aid to the
Afghan mujahideen. But for purposes of this indictment, such direct
material support is less significant than the provision of grants by
the National Endowment for Democracy and the USAID to tax-exempt
organizations.

FN13. Nor could the government have sought to recoup revenues from the
donors to Care International, who were entitled to rely on the IRS's
grant of tax-exempt status to Care International when deducting their
individual contributions to the charity. Bob Jones University v.
Simon, 416 U.S. 725, 729 ("An organization's inclusion in the
Cumulative List assures potential donors in advance that contributions
to the organization will qualify as charitable deductions under s
170(c)(2). The Service has announced that, with narrowly limited
exceptions, a donor may rely on the Cumulative List for so long as the
beneficiaries of his largesse maintain their listing, regardless of
their actual tax status.").

This is what Care is charged with having done according to the precise
terms of the indictment:
- "engaged in activities involving the solicitation and expenditure of
funds to support and promote the mujahideen and jihad, including the
distribution of pro-jihad publications." App. at 00111.
- "published reports and articles in support of the mujahideen in its
newsletter or on its website." Id. at 00117- 118.
- "distributed brochures entitled 'Zakat Calculation Guide', in which
the mujahideen was identified as one of the eight categories of
eligible recipients." Id. at 00118.
- publishing a website that "contained direct solicitations for tax
deductible donations to support the mujahideen." Id.
- "published and distributed a newsletter, Al-Hussam ... which
actively promoted 'jihad', or holy war, involving 'mujahideen,' or
Islamic holy warriors." Id. at 00119.
- "published articles about the military operations and activities of
the mujahideen on its website." Id.
- "printed and distributed solicitations for tax deductible donations
to support the mujahideen." Id.
- "published and distributed an English translation of 'Join the
Caravan,' a pro-jihad book authored by Abdullah Azzam." Id. [FN14]

FN14. The indictment also charges that Care failed to disclose that it
was a "successor" to or "outgrowth" of the Al-Kifah Refugee Center,
and quotes "media reports" linking the Al Kifah Refugee Center to the
1993 World Trade Center bombings. This allegation is addressed more
fully below at 44. The short of the matter is that the government's
claim linking Care and Al-Kifah is a red herring, except insofar as
Care was formed precisely for the purpose of disassociating the new
organization from Al-Kifah. Al-Kifah was not, in any event, a
Massachusetts corporation, nor even a 501(c)(3) organization, and Care
did not assume any of the assets or liabilities of Al-Kifah, which
continued to exist independently and continued to publish a newsletter
under a title ("The Sword") that is far from unique in the Islamic
world.

Incidentally, the very New York Times report upon which the Government
appears to rely quotes a federal law-enforcement official stating
anonymously in 1993 that there was little incentive in going after the
Al-Kifah Refugee Center on criminal charges because the group had been
involved in a war that the Government supported. "The mujahideen went
to fight the Soviets when the Soviets were our enemies," the official
said. "Now the Soviets have become our friends, and our former allies
have turned against the U.S. in favor of terrorism. The obvious
conclusion is this is coming back to haunt us." "After Blast, New
Interest in Holy-War Recruits in Brooklyn," The New York Times, April
11, 1993.

Every one of these activities is protected on its face by the First
Amendment according to well-established precedent. The indictment, to
the extent that it uses these activities as the basis for its
conspiracy charge, is in clear violation of the First Amendment, and
must be dismissed.
Advocacy in support of religious and political causes is at the core
of the protection afforded by the First Amendment to free speech and
to the free exercise of religion. This would be true even if- and this
is not the case here - that advocacy goes so far as to call on its
listeners to employ violence, unless it can be shown that the speech
is likely to incite imminent violence. See Brandenburg v. Ohio, 395
U.S. 444 (1969) and further discussion, infra. It is a measure of the
special protection accorded to speech, particularly religious speech,
that even advocacy of violence, short of "fighting words," is accorded
constitutional protection. See Chaplinsky v. New Hampshire, 315 U.S.
568 (1942).
The activities specified in the indictment as well as those actually
engaged in by Care - publishing and distributing newsletters taking
positions and reporting on developments in foreign battles, soliciting
support for the relief of widows and orphans in war-torn areas of the
world, publishing and distributing books that discuss and espouse
controversial ideas about religious conflict in the contemporary
world, printing and distributing charitable tax guides that conform to
the historically complex teachings of an Abrahamic faith - all of
these are precisely the sorts of activities other 501(c)(3) religious
groups conduct on a regular basis. [FN15] More to the point, these
activities are virtually identical to those supported by grants from
the federal government, through the National Endowment for Democracy
(NED) and the United States Agency for International Development
(USAID), to charities active in the very same area beginning with the
Soviet invasion of Afghanistan and continuing well into the 1990's.
[FN16]

FN15. The tax-exempt activities of Catholic and Protestant groups in
support of one side or the other in Northern Ireland and Jewish groups
in support of Israel are exemplary in this regard. See, e.g., App. at
00126 (solicitation materials posted on the website of the Jewish
National Fund, a 501(c)(3) organization, requesting donations to
finance the purchase of bulletproof vests, helmets, and firetrucks in
connection with the 2006 Israel-Lebanon conflict); App. at 00130 ("A
Personal Report from the North Battle Front," detailing the impact of
the 2006 Israel-Lebanon conflict, posted on the website of the United
Jewish Communities, a 501(c)(3) organization); App. at 00133 ("A
Personal Message from Israel's Home Front Command," also recently
posted on the UJC website).

FN16. See infra at 19.

As explained in further detail below, moreover, the giving of zakat
(alms) is required of all Muslims as one of the five pillars of Islam,
and the Koran is commonly (but not universally) interpreted to include
the mujahideen as one of eight eligible recipients of zakat. [FN17]

FN17. See Aron Zysow, "Zakat," The Encyclopedia of Islam, new ed.,
vol. 11, pp. 406 - 422. Zakat is "the obligatory payment by Muslims of
a determinate portion of specified categories of their lawful property
for the benefit of the poor and other enumerated classes." Id. at
406-07 (emphasis added). The word zakat means purification and is
derived from the verb zaka, which means "to thrive," "to be
wholesome," "to be pure." Zakat is one of the five pillars of Islam,
so called because they constitute the minimum conduct required of all
Muslims. It is to be distinguished from sadaka, which refers to alms
voluntarily given (although the term sadaka is often used for zakat).
Id. at 407.

Those entitled to receive zakat are listed in Sura 9 verse 60 of the
Koran ("ayat al sadaka," or the sadaka verse):

The freewill offerings are for the poor and needy, those who work to
collect them, those whose hearts are brought together, the ransoming
of slaves, debtors, in God's way, and the traveller; so God ordains;
God is All-knowing, All-wise.
The Koran Interpreted, trans. Arthur J. Arberry (New York: Oxford
University Press, 1982), 186. See App. at 00136.

At issue is category 7, those described as "in God's way," or "in the
path of God." According to Zysow:

The most common interpretation is that these are the volunteers
engaged in djihad. They are to be given zakat to meet their living
expenses and the expenses of their military service (animals,
weapons). The Twelvers [that is, Shiite Muslims who acknowledge the
authority of a line of twelve infallible leaders (imams) beginning
with the Prophet Muhammad's cousin Ali] came to adopt a broader
interpretation that encompasses a range of public services, including
the repair of mosques and bridges .... The Hanafis [one of the four
schools of Sunni Islamic law], among others, rejected the use of zakat
for such purposes on the ground that the valid payment of zakat
requires a transfer of ownership from one person to another.
Id. at 416. (A copy of Dr. Zysow's article appears at App. at 00139).

For a federal court to supply its own definitions to such matters
would involve it directly and impermissibly in the definition of
religion, in direct violation of the First Amendment. See United
States v. Ballard, 322 U.S. 78 (1944); and Van Schaick v. Church of
Scientology, 535 F. Supp. 1125 (D. Mass 1982).
To punish Mr. Muntasser now for engaging in precisely the same kind of
conduct engaged in by federally funded and federally recognized
charities would violate not only all notions of fair play and equal
protection of the laws, but would run afoul of the Due Process
requirement of fair warning, fair notice, and clear statement and the
rule of lenity in criminal law. It is simply not possible to seek to
punish an individual or organization for engaging in conduct engaged
in and supported by the government.

III. The First Amendment provides broad protection to religious groups
to distribute literature and handbills in support of their causes, and
to accompany the distribution of literature with solicitations for
funds.

At the heart of this case is the right of an established religious
charity to collect funds and distribute literature. That right has
been repeatedly reaffirmed by the Supreme Court, even where
municipalities and other local governments found the message of the
charities offensive and their fundraising downright reprehensible. See
International Krishna Consciousness v. Lee, 505 U.S. 672 (19xx) ("We
have long recognized that the right to distribute flyers and
literature lies at the heart of the liberties guaranteed by the Speech
and Press Clauses of the First Amendment." Schneider v State Town of
Irvington, 308 U.S. 147 (1939); Murdock v Pennsylvania, 319 U.S. 105
(1943). That speech protection is at its greatest when the underlying
cause is religious in nature; and it does not matter that solicitation
of funds is involved. In Jamison v. Texas, 318 U.S. 413, 417 (1943),
the Court, without dissent, held that although purely commercial
leaflets could be banned from the streets, a state could not "prohibit
the distribution of handbills in the pursuit of a clearly religious
activity merely because the handbills invite the purchase of books for
the improved understanding of the religion or because the handbills
seek in a lawful fashion to promote the raising of funds for religious
purposes."
In cases dating back as far as Cantwell v. Connecticut, 310 U.S. 296
(1940), the United States Supreme Court has gone so far as to create a
hybrid class of cases in which otherwise neutral laws may not be
applied if their tendency is to burden the exercise of religion. Here,
by analogy, to interpret the tax law so as to limit the ability of
Care to collect zakat or provide rhetorical support for jihad
(especially as both are correctly understood) would itself create
major constitutional problems.
As the Court recognized in Employment Division v. Smith:
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously
motivated action have involved not the Free Exercise Clause alone, but
the Free Exercise clause in conjunction with other constitutional
protections, such as freedom of speech and of the press. See Cantwell
v. Connecticut, 310 U.S., at 304-307 (invalidating a licensing system
for religious and charitable solicitations under which the
administrator had discretion to deny a license to any cause he deemed
nonreligious); Murdock v. Pennsylvania, 319 U.S. 105 1943)
(invalidating a flat tax on solicitation as applied to the
dissemination of religious ideas); Follett v. McCormick, 321 U.S. 573
(1944) (same); or consider the right of parents, acknowledged in
Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the
education of their children (see, Wisconsin v. Yoder, 406 U.S. 205
(1972) (invalidating compulsory school attendance law applied to Amish
parents who refused on religious grounds to send their children to
school).
Employment Division v. Smith, 492 U.S. 872, 881 (1990). Indeed, so
vital is the interest in religious freedom that Congress requires
federal courts to engage in a case-by-case analysis before facially
neutral federal laws may be construed so as to interfere with the free
exercise of religion, even if it is a law of general application, such
as an anti-fraud law, that imposes the burden. In the Smith case,
supra, the Court had rejected the rule that the Constitution requires
a case by case analysis of the burden imposed on the free exercise of
religion by a facially neutral statutory rule. Congress responded by
enacting the Religious Freedom Restoration Act of 1993, 42 U.S.C. §
2000bb, which was intended to provide greater protection to the
exercise of religious freedoms by restoring traditional strict
judicial scrutiny. As the Court explained in Gonzalez v. O Centro
Espirita Beneficente Uniao Do Vegetali:
Under RFRA, the Federal Government may not, as a statutory matter,
substantially burden a person's exercise of religion, even if the
burden results from a rule of general applicability. The only
exception recognized by the statute requires the Government to satisfy
the compelling interest test- to demonstrate that application of the
burden to the person - (1) is in furtherance of a compelling
government interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.
Gonzalez v. O Centro Espirita Beneficente Uniao Do Vegetali, 126 S.Ct.
1211, 1216-17 (2006).
The complaint in this case does not even assert a compelling interest
in denying 501(c)(3) status to CARE, much less one that could not be
secured through a less restrictive alternative. See also Church of the
Lukumi Babalu Ave, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)
("Although a law targeting religious beliefs as such is never
permissible ... if the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not
neutral ... and it is invalid unless it is justified by a compelling
interest and is narrowly tailored to advance that interest).

IV. Care, Inc. was a religious charity pursuing religious goals.

The indictment makes clear that Care was involved in religious
activities, although the government does evidence an egregious
misunderstanding of basic and judicially-noticeable concepts of Islam.
The indictment is replete with terms drawn from the Koran, the Holy
Book of Islam. While it is far beyond the province of this court to be
defining religious terms, it is well-established among all respectable
sources that jihad, mujahideen, and zakat are all concepts which
derive to varying degrees from the Koran and have enormous religious
significance to practicing Muslims. Under the teachings of the Koran,
Muslims have an obligation to give zakat; the mujahideen are widely
interpreted to be one of the eight categories of recipients entitled
to zakat. [FN18] The gravamen of the indictment is that Care was
devoted to the support of "jihad" which the government simplistically
defines as "holy war," as if doing so negates the charitable and
religious basis of Care's and Mr. Muntasser's claim to First Amendment
protection and creates an obligation to supply information that would
normally not be seen as material to such an application for tax-exempt
status.

FN18. See App. at 00139 (previously referenced article by Aron Zysow
on zakat); and App. at 00136 (extract from the Koran describing the
categories of eligible recipients of zakat).

But the government's own expert intelligence literature specifically
and categorically rejects this definition of jihad, and in doing so,
undercuts the very foundation of this case. If jihad means what the
government experts say it means, it utterly undercuts this indictment.
[FN19] In Defense Intelligence Memorandum 32-91, see App. at 00157,
the United States Defense Intelligence Agency in 1991 defined jihad in
a way that totally undermines the government's claimed definition in
this case:

FN19. Given that the government's own experts agree with Defendants'
definition of jihad, that definition is binding on the government for
purposes of this case. See, e.g., Hawkins v. U.S. 96 U.S. 689, 691-692
(1877) (the government or a public authority is bound by the acts or
declarations of its public agents when those agents are acting within
the scope of their authority). See also U.S. v. One Big Six Wheel, 987
F.Supp. 169, 175 (E.D. N.Y., 1997) ("If Congress meant both to expand
the jurisdictional reach of its criminal proscriptions and to change
the meaning of [a term] that underlies the substantive definition of
criminal behavior, it is unlikely that it would have done so as
cryptically as the government suggests").

Of all Islamic doctrines, the concept of jihad is the most overused,
misunderstood, and misinterpreted. Often narrowly and erroneously
translated as "holy war," jihad literally translates to "utmost
effort" or "struggle" and refers to the obligation of all Muslims to
promote and defend Islam. Because certain radical Muslim groups have
adopted the word as part of their name, Westerners often associate
jihad with terrorism. Jihad actually is a complex religious concept,
fraught with contradiction, that holds powerful emotional appeals for
Muslims and must be understood in the context of Islam as a whole.
Most Muslims do not view jihad as a violent form of proselytizing but
rather as a defensive doctrine. The Koran commands Muslims not to seek
out conflict but to defend Islam whenever and wherever it is
threatened.
The newsletters the government seeks to criminalize contain the very
same sorts of discussions of the meaning of jihad as are developed in
the memorandum published by the Government itself. How can this
possibly be criminal? If the mere discussion and publication of
materials related to zakat and jihad are criminal, then discussion or
distribution of the Koran itself by Muslim charities becomes a
criminal activity. Indeed, the newsletters which the indictment seeks
to criminalize include interpretations of the Koran offered by Muslim
scholars, including their thoughts on the very questions posed by the
Defense Intelligence Memorandum. Yet by the terms of the indictment,
had Mr. Muntasser circulated even that memorandum, he would have been
engaged in criminal activity.
This indictment is a prime example of the tendency of the government,
in the wake of the terrorist attacks of September 11, 2001, to re-
write not only the meaning of important words and concepts concerning
the religion of Islam, but to re-write as well the positions, roles,
and activities undertaken and supported by the United States
government itself during, especially, the fight against the Soviet
occupiers of Afghanistan. It is an attempt to rewrite history itself.
Indeed, to bring the matter to the local level, during the Afghan war,
the United States (through the United States Information Agency) went
so far as to fund a journalism program at Boston University whose goal
was to teach Arab and Afghan journalists to write sympathetically
about the Afghan jihad. See App. at 00163. Similarly, until at least
1992 the United States Agency for International Development and the
National Endowment for Democracy (a 501(c)(3) entity) funded the
publication of a magazine entitled Afghan Jehad put out by the
Cultural Council of the Afghan Resistance. See infra at 19. Would
Boston University or the National Endowment for Democracy now be
subject to prosecution under the same theory that underlies this
indictment?
Moreover, even if jihad is understood in the simplistic way the
government seems to claim, it still does not follow that discussion or
even advocacy of it is criminal. This was precisely the holding of
Brandenburg, supra and infra, in which the Court held that even
advocacy of violence could not be the basis of a criminal prosecution,
absent a showing of incitement to imminent violence. And yet there is
no allegation in this indictment, nor could there be, that Mr.
Muntasser was in any way responsible for inciting any acts of violence
in connection with the newsletters, solicitations, or other activities
of Care. This indictment is, on its face and by its own terms,
concerned with and limited to activity clearly protected by the First
Amendment.

V. The United States Government itself funded 501 (c)(3) organizations
to enable them to perform precisely the sort of activities that form
the basis of this indictment.

The underlying activities specified in the indictment as the basis for
the government's theory of liability are identical to ones supported
and financed by the federal government through the National Endowment
for Democracy and the Agency for International Development during the
Soviet occupation of Afghanistan and then well into the 1990's.

a. National Endowment for Democracy

The National Endowment for Democracy (NED) is 501(c)(3) initiative of
the United States Government, chartered by the Congress in November
1983. Pursuant to the terms of its enabling legislation, the NED has
been directly funded by annual appropriations from the Congress ever
since. App. at 00192 (NED's 1023 application, stating that "[t]he
authorizing legislation provides that the Endowment receive an annual
appropriation from the U.S. Congress in the form of a grant from the
United States Information Agency"). In the words of the NED's website,
the NED was "premised on the idea that American assistance on behalf
of democracy efforts abroad would be good both for the U.S. and for
those struggling around the world for freedom and self-government."
App. at 00198 (David Lowe, "Idea to Reality: NED at 20"). The first
chairman of the NED was Congressman Dante Fascell, who was succeeded
by John Richardson, a former Assistant Secretary of State. The NED's
first President was Carl Gershman, previously the Senior Counsel to
the U.S. Representative to the United Nations.
In the NED's 1023 application for 501(c)(3) status, filed by Carl
Gershman, the NED described its proposed activities and purposes as
follows:
The [NED] was incorporated in November 1983 for the general purpose of
promoting and strengthening democratic values and institutions
throughout the world. The Endowment does not conduct programs itself
but provides support in the form of grants to other private sector
organizations which present program proposals which further the states
purposes of the Endowment. Those purposes are enumerated in the
articles of incorporation ... and in the National Endowment for
Democracy Act, Public Law 98-164, which was passed by Congress in
November 1983.
In its Articles of Incorporation, the NED stated its purposes as
follows:
- to encourage the free and democratic institutions throughout the
world through private sector initiatives, including activities which
promote the individual rights and freedoms, including internationally
recognized human rights and fundamental freedoms, which are essential
to the functioning of democratic institutions.
- to facilitate exchanges between United States private sector groups
(labor and business) and democratic groups abroad;
- to promote United States nongovernmental participation, especially
through the two major American political parties, labor, business, and
other private sector groups, in democratic training programs and
democratic institution-building abroad;
- to strengthen democratic electoral processes abroad through timely
measures in cooperation with indigenous democratic forces;
- to support the participation of labor, business, and other United
States private sector groups in fostering cooperation with those
abroad dedicated to the cultural values, institutions, and
organizations of democratic pluralism;
- to encourage the establishment and growth of democratic development
in a manner consistent both with the broad concerns of United States
national interests and with the specific requirements of the
democratic groups in other countries which are aided by programs
funded by the Endowment; and
- in addition, the corporation shall have all other powers now or
hereafter granted to non-profit corporations pursuant to the District
of Columbia Nonprofit Corporation Act to be used in furtherance of the
above purposes.
App. at 00211- 212 (emphasis added). In so stating, the Articles of
Incorporation track the language of the National Endowment for
Democracy Act, Public Law 98-164, attached as App. at 00222.

b. United States Agency for International Development

The United States Agency for International Development (USAID) is a
federal agency created by act of Congress in November 1961. In the
words of USAID's website, the creation of USAID "represented a
recommitment to the very purposes of overseas development. USAID was
established to unify assistance efforts, to provide a new focus on the
needs of a changing world, and to assist other countries in
maintaining their independence and becoming self-supporting." App. at
00227 ("USAID History" from the USAID website). Like all other federal
agencies, USAID receives an annual appropriation from the Congress to
fund its foreign assistance programs. The 1961 Foreign Assistance Act
that created USAID gave it responsibility for implementing and
overseeing, inter alia, a Development Loan Fund whose primary purpose
was to foster plans and programs to "develop economic resources and
increase productive capacities" and a Development Grant Fund to focus
on "assisting the development of human resources through such means as
programs of technical cooperation and development" in less developed
countries. App. at 00230.

c. American Friends of Afghanistan

The American Friends of Afghanistan (AFA) is a 501(c)(3) organization
established in September 1979. App. at 00234. The NED awarded AFA a
grant in the amount of $75,300 in 1990 "to enable the Cultural Council
of the Afghan Resistance (CCAR) of Islamabad, Pakistan to conduct the
first program activities of its newly established independent, non-
governmental Afghan Institute for Policy Studies and to publish a
quarterly journal." App. at 00236 (entries from the NED's "Democracy
Projects Database", available through the NED website). In 1991, the
NED awarded AFA a grant in the amount of $57,068 "to enable [CCAR] to
continue publishing the magazine Afghan Jehad and to support its
Afghan Institute for Policy Studies Program." Id. In 1992, the NED
awarded AFA a grant in the amount of $61,344 "to support activities
intended to encourage the adoption of democratic concepts as part of
an Afghan solution, particularly through the publication of the
quarterly journal, Afghan Jehad." CCAR was an organization led by the
a one Sabahuddin Kushkaki, a former journalism professor at the
University of Kabul. CCAR operated under the aegis of the alliance of
three moderate nationalist mujahideen parties then fighting in
Afghanistan with US support. [FN20]

FN20. These parties were the National Islamic Front of Afghanistan led
by Sayyid Ahmad Gailani; the Islamic National Salvation Front, led by
Hazrat Sibghatullah Mojaddedi; and the Movement of the Islamic
Uprising of Afghanistan, led by Muhammad nabi Muhammadi. At the
Constitutional Loya Jirga held by the US-supported government of
Afghanistan in December 2003, Gailani was the opening interim chair;
Mojaddedi was elected as the permanent chair; and Muhammadi's son (his
father had died) chaired one of the working groups.

Selected pages from the 1990-92 issues of Afghan Jehad are attached as
App at 00238. The April-June 1990 issue featured, on its cover, a
picture of "Mujaheddin commanders who met in June in Paktia province
to discuss the Afghan situation and coordinate military activities."
App. at 00240. The October-December 1991 issue included an article
entitled "The Islamic Revolution and Jehad in Afghanistan," which was
introduced as follows: "So our objective now should be an Islamic
Revolution and an Islamic Revolution can only be ushered in through
the adoption of jehad as its primary instrument." App. at 00242. The
article continued:
Now at this momentous cornerstone of our history, the Afghans through
the successful application of the Islamic doctrine of jehad have
because of the defeat of a super-power - the USSR - shown the beacon
of light to the entire Muslim World and are the veritable torch
bearers and trail-blazers for the revival of jehad not merely as a
static doctrine to be discussed by the ulama and the intellectuals but
as a practical phenomenon which can be the sum-total of our concept of
Grand Stragety [sic] for the Muslims of the world.
Id. This and other issues of Afghan Jehad are replete with accounts of
military battles then taking place in Afghanistan, pictures of
mujahideen leaders and fighters, and editorials expressing support for
the mujahideen and the concept of jihad. The October-December 1992
issue, to take one further example, included an editorial entitled
"Afghanistan and Current Problems" noting that "[w]hen we took up arms
against the infidels and the communists ... God helped us and granted
us victory over the enemy." App. at 00244.
CCAR and its newsletter, Afghan Jehad, were also supported by USAID.
See App. at 0245 (USAID Cooperative Agreement identifying CCAR as
among the sub-grantees supported by USAID through a 1990 grant to the
Asia Foundation).
NED's involvement with AFA and CCAR dates back to 1985, when NED
awarded AFA a major grant to provide educational opportunities,
including literacy and photography courses, to the Afghan mujahideen.
The grant also provided support for the filming of documentaries
describing military uprisings. See App. at 00249. In a 1986 report to
the NED reporting on AFA's progress in the program, AFA's then-
president Thomas Goutierre appended a news article in which he was
quoted as having "expressed his disappointment over the soft-peddling
of the [Afghan] issue by the Islamic Conference and not declaring a
holy war (jehad) against the Russians." As evidenced above, despite
this invocation of "holy war," NED and USAID support for AFA's
activities continued into the 1990s. App. at 00275.

d. Freedom Medicine

Freedom Medicine is a 501(c)(3) organization established in 1985. Its
1023 application stated "its immediate principal purpose is to provide
medical relief to people from Afghanistan from illness, injury and
displacement resulting from the revolution in Afghanistan... Because
the organization is humanitarian in its goals and efficiently
operational in its focus, it anticipates significant help from U.S.
grant agencies and other 501(c)(3) organizations. The purpose section
of its charter has been drawn with these purposes in mind. The
organization was formed to provide medical assistance to victims of
natural and man-made disasters around the world. The group's current
focus is in Afghanistan and Pakistan." App. at 00284.
Freedom Medicine received more than eighty percent of its funding from
USAID to support medical training and medical relief for members of
the Afghan mujahideen. App. at 00336 (Boston Globe article dated July
31, 1988). In a March 1989 "Summary and Comments on Freedom Medicine's
Quarterly Report," a USAID official stated with evident approval that
"Freedom Medicine continues to provide valuable medical support and
training for the Afghan resistance." See App. at 00338.

e. Free Afghanistan Alliance

The Free Afghanistan Alliance (FAA) is a 501(c)(3) organization
founded in 1979 that became tax-exempt in 1986. It stated in its 1023
application that it was founded "following the Russian invasion of
Afghanistan ... to provide humanitarian aid for the Afghan people and
to publicize their cause." App. at 00341. In its Articles of
Incorporation, FAA stated that it "is dedicated to humanitarian
support of the Afghanistan people in their effort to regain control
and occupancy of their county and re-establish a free and democratic
government. It is likewise dedicated to such other peoples as may
similarly be denied their country or place, now or in the future, by
an illegally occupying force or government" (emphasis added). App. at
00353. The materials provided by FAA to the IRS in support of its
claim to tax-exempt status included a February 18, 1986 letter from
President Ronald Reagan to the organization's president, Scott Kramer,
stating that President Reagan was "proud to reaffirm my commitment to
the Afghan people in their struggle to regain their freedom." App at
00368. In a July 1, 1986 letter to the chief of the IRS Exempt
Organizations Rulings Branch, Mr. Kramer stated that while FAA does
"not provide direct aid to any of the resistance fighters ... some
supplies are used to treat the wounded in the hospitals and they would
also receive benefit from our provisions to refugee camps when they
return from the field for rest periods." Mr. Kramer further stated
that while FAA has
no connection with the Afghan National Liberation Front or any other
factions ... [w]e do, however, bring medical cases from the various
camps. All of the camps come under one or another of the factions ....
We have received five cases brought to us by the Afghan National
Liberation Front. We also receive cases from the camps controlled by
other factions. Patients are brought to the United States on Air Force
and commercial air lines.
App. at 00370.
In conjunction with Freedom Medicine, FAA received funding from USAID
to fly injured mujahideen fighters to the United States aboard
federally-funded flights known as the McCollum humanitarian flights
(so-named after the congressman who sponsored the appropriations
legislation for these flights). See App. at 00336 (Boston Globe July
31, 1988 article). FAA also flew injured children to the United
States, and on at least one occasion did so under the supervision of a
high-ranking official of the Afghan National Liberation Front, one of
the mujahideen groups. App. at 00344 (New York Times December 19, 1985
article). On January 24, 1986, President Reagan issue a statement
thanking the FAA for its activities in Afghanistan, and noting as
follows:
The United States Government, with the support of Congress, provided
funds for humanitarian assistance, including medical training, to the
freedom fighters and victims of the Soviet war. The American people,
particularly groups such as the Free Afghanistan Alliance and the
Committee for a Free Afghanistan, have given generously to alleviate
the plight of the refugees and those who remain in Afghanistan.
App. at 00377.

f. Committee for a Free Afghanistan

The Committee for a Free Afghanistan (CFA) is a 501(c)(3) organization
established in 1984. In its 1023 application, it stated that it would
"conduct studies concerning the social, economic and political
situation in Afghanistan since the Soviet invasion and occupation of
that country.... The organization will also provide a forum for
discussion of the situation in Afghanistan.... The results of all
research will be made available to interested parties on a
nondiscriminatory basis." App. at 00381. CFA's Articles of
Incorporation also noted that CFA would "engage in nonpartisan
research, study and analysis for the benefit of the general public
regarding the role of the United States in Afghanistan." App. at
00402.
CFA published flyers featuring a picture of an Afghan child with a
dove on his head and, beneath him, the message "Support the Afghan
Freedom Fighters." Ex. ??. It also published flyers featuring images
of mujahideen fighters and the following text: "How Long Must They
Wait? The Afghans Still Stand Alone Against the Might of the Soviet
Army.... Support Free Afghanistan." App. at 00426. CFA also published
a newsletter entitled "Free Afghanistan Report" replete with
editorials and images supportive of the mujahideen. The August 1982
issue of this newsletter, for example, featured an article referring
to the "mujahideen - freedom fighters" and imploring the United States
to "provide them with the weapons they desperately need to defend
themselves, particularly the shoulder-fired anti-aircraft missiles
that could make such a difference in this war." App. at 00428. Short
news accounts depicted various episodes in the "freedom fighters'
valiant struggle to regain their national sovereignty." Id. The May
1983 issue featured on its cover a picture of President Reagan meeting
with "freedom fighters" dressed in their native Afghan garb. Id. The
issue also included stories recounting congressional debates over the
level and type of aid to supply to the mujahideen, and an
advertisement announcing the availability of t-shirts with the words
"Support the Afghan Freedom Fighters - He Fights for You" emblazoned
on the front, and selling for a then-pricey $15. Id. The March 1984
issue included a narrative account of a CFA member or supporter that
opened with the following: "I met with the Islamic alliance of the
Afghanistan Mujahedin in late June." Id. In February 1985, the "Free
Afghanistan Report" announced that CFA would be hosting a delegation
of the "freedom fighters" themselves in Washington. Id. That same
issue included a solicitation for contributions, stating that "[t]he
Afghans don't want American troops, but they urgently need our
support. The Committee is working to help them get this.... WE NEED
YOUR TAX-DEDUCTIBLE CONTRIBUTION!" Id. (emphasis in the original). In
September 1985, the newsletter announced that CFA was helping to bring
wounded Afghan "freedom fighters" to the U.S. for medical treatment. A
news brief in that same issue announced that "Mujahedeen kill 100
Soviets," and obituaries lauded by individual name the "courageous
Afghan commanders who lost their lives this past year." Id. The Summer
1986 issue featured a front-page photograph of President Reagan again
meeting with a delegation from the Afghan mujahideen alliance, and a
solicitation for donations to fund the medical treatment of injured
Afghans. Id.

g. Afghanistan Relief Committee

The Afghanistan Relief Committee (ARC) is a 501(c)(3) organization
established in 1980. Its 1023 application stated that the "purpose of
the fund raising activities is to raise monies for humanitarian aid to
the refugees from Afghanistan, currently estimated to be in excess of
450,000, primarily in Pakistan." App. at 00451. Its Articles of
Incorporation stated its purposes as follows: "to provide charitable,
educational, humanitarian, and benevolent aid and assistance to the
people of Afghanistan wherever they may be situated by soliciting,
collecting, and otherwise raising money for such purposes." App. at
0000464.
ARC was an affiliate of Freedom Medicine, discussed infra, the
organization that flew injured mujahideen to the United States for
medical treatment with funding from the U.S. Congress. ARC received a
grant from USAID in 1990 to support the publication of a journal,
WUFA, edited by the Writers Union of Free Afghanistan, based on
Peshawar, Pakistan. App. at 00490. The WUFA journal was also supported
in 1995 by a grant from the NED to finance the distribution of
booklets to "commanders, elders, religious scholars, and
intellectuals" in Afghanistan. See App. at 00493.

h. Afghan Information Center

The Afghan Information Center (AIC) was founded in 1981 as an arm of
Freedom House, a 501(c)(3) organization founded in 1943. AIC is
responsible for collecting and disseminating Freedom House information
on Afghan issues. Both AIC and Freedom House have been linked by media
reports to the funneling of assistance to the Afghan mujahideen and
Arab supporters. See App. at 00495. The NED awarded AIC with a $50,000
grant in 1990 and a $24,000 grant in 1993 to support its publications
and related work. See App. at 00500. The United States Information
Agency (USIA), a federal agency acting through a grant to Boston
University, also commissioned AIC in 1987 to help train Afghan
journalists to provide sympathetic coverage of mujahideen military
actions. See App. at 00503.
AIC's publications included the "Afghan Information Centre Monthly
Bulletin." The March-June 1992 issue of this bulletin included
articles discussing the "just status of [the Afghan] jehad" and noting
the "sacrifices of more then [sic] one million martyrs by the Afghan
nation to prevent the advance of the Red Army to Pakistan and the
Gulf." App. at 00510. A news brief recounted that "most of the
mujahideen of the area have left for Kabul," and an article described
the history of "mujahideen ... attacks on the regime forces and Soviet
troops." Another article reprinted the remarks of an Afghan mujahideen
leader, Moulvi Yunus Khalis, stating "May Allah give reward for the
role played by the organizations in the jehad for independence." Id.
And an open letter letter to AIC readers in the same issue noted that
"AIC joined the convoy of the Afghan Resistance in its struggle
against Russia to safeguard the freedom, territorial integrity, and
national sovereignty of Afghanistan." Id.
The January 1991 issue of the AIC Monthly Bulletin included an article
announcing that "[w]e are the only nation in the modern history that
has offered great sacrifices for its freedom in the war. The
international effects of the Afghan jehad brought the Soviet empire to
its knees and possibly to collapse. Regretfully, we should point out
that our blood is like the oil of a lamp which burs itself out but
provides light for others." The article went on to describe
"victor[ies] for the mujahideen," and to note that the "U.S. was a
country of the world that extended great economic, military and
political support to the Afghan mujahideen." App. at 00517. Another
item stated that "Jehad will continue unless an Islamic government
replaced the infidel and atheist regime in the country." Id. Other
articles reported on the nationwide council (shura) of mujahideen
commanders meeting in December 1990, and covered mujahideen rocket
attacks on various military outposts of the Afghan regime. Id.

i. Asia Foundation

The Asia Foundation is a 501(c)(3) organization originally
incorporated in 1951 under the name Committee for a Free Asia. Its
Articles of Incorporation specified that it would "promote, aid and
assist the cause of individual and national freedom in Asia, as
opposed to Communist and other totalitarian doctrines." App. at 00526.
The IRS issued a determination letter recognizing the Committee for a
Free Asia as a tax-exempt organization in 1952. App. at 00551. In
1992, the Asia Foundation received a grant from USAID in the amount of
$56,471 "to provide support and to implement the Asia Democracy
Program." App. at 00554. Under the terms of the USAID grant, the Asia
Foundation would fund the Cultural Council of the Afghan Resistance
(CCAR) and its quarterly journal, Afghan Jehad, the organ of the seven-
party mujahideen alliance discussed infra at 21. App. at 00554. The
USAID grant further provided, under the "Sub-Grantee Information"
heading for CCAR, that "Afghan Jehad, and complete proceedings of
seminars have been produced regularly and circulated to readers in
Pakistan, Afghanistan, and overseas. 5000 copies of the journal, in
Pushto and English, reach influential Afghans and potential policy
makers throughout the world." App. at 00561. See also App. at 00245
(USAID Cooperative Agreement detailing 1990 grant to Asia Foundation,
with sub-grant information concerning CCAR).

j. Management Sciences for Health

Management Sciences for Health (MSH) is a 501(c)(3) organization based
in Cambridge, Massachusetts and incorporated in 1971. MSH stated on
its 1023 application that its activities "are charitable, educational,
and scientific in nature. Its primary concern is the analysis of
health care and family planning programs and the suggestion of methods
of increasing the efficiency of their management so the programs will
have a more effective impact on the target populations." App. at
00574. MSH also stated in its 1023 attachments that it had entered
into a contact with USAID to provide family planning services in
Afghanistan on a cost reimbursement, no-fee basis. See. App. at 00578.
MSH's Articles of Organization provided that its purposes were "to
analyze, assist, promote, evaluate, manage and perform research on the
delivery of health case; to produce, publish and distribute
educational materials; and to establish methods and procedures leading
to the improvement of health and social services generally." App. at
00588.
In 1986, USAID signed a Cooperative Agreement with MSH to manage a $60
million Afghanistan Health Sector Support Project extending from 1986
to 1994. App. at 00636. As noted in MSH's April 1994 report on the
project, one of the project's two major objectives was to "strengthen
the capability of the Afghan Seven Party Alliance Health Committee
(now the Ministry of Public Health of the Interim Government of
Afghanistan) to plan, operate, and monitor expanded health services in
Afghanistan. Id. (The seven party alliance is another expression for
the seven mujahideen factions.) A June 10, 1986 MSH project update to
USAID stated that MSH's "health activities will follow a number of
strategic principles to gain and maintain the confidence of the Afghan
parties," including "respect for the values of the Jihad." App. at
00639. A September 22, 1986 letter from the USAID representative in
Islamabad, Pakistan to MSH outlining the terms of the USAID grant to
MSH instructed that MSH's efforts were to be directed to, inter alia,
[assisting the Alliance Health Committee (AHC) in the expansion and
improvement of general health care for the civilian population and
Mujahideen." App. at 00645 (emphasis added). A July 15, 1988 letter
from the MSH team leader in Peshawar, Pakistan to the USAID
representative in Islamabad reported that the MSH "service area
extends to those provinces where a mujahideen administration ... under
Commander Masood has been developed." App. at 00648. An August 1988
USAID assessment of the Afghanistan Health Sector Support stated that
"the MSH team's work with the AHC And Regional Commanders has required
that priority be given to solving organizational and operational
problems so that provision of health care services to the mujahideen
and the civilian population could be expedited, and coordinated." App.
at 00673. A January 25, 1989 letter by an MSH project officer
referenced "training of the Mujahidin" in the context of MSH's
Alliance Health Committee training program. App. at 00739.
A 1994 MSH report entitled "Health Care in Muslim Asia: Development
and Disorder in Wartime Afghanistan stated as follows:
[n]o distinct dividing line existed [in Afghanistan] between
combatants and noncombatants; many degrees of active military
involvement existed:
- full-time resistance soldiers ...
- part-time resistance soldiers ...
- anyone carrying weapons or in any other way assisting the first two
are thus [also] considered mujahed.
Likewise, anyone providing medical care to the fighters was involved
in jihad.
App. 00744 (emphasis added).

k. University of Nebraska at Omaha

The University of Nebraska at Omaha (UNO) is a non-profit, publicly-
funded educational institution.
UNO signed a $31.2 million contract with USAID to fund an Education
Sector Support Project (ESSP) in Afghanistan from 1987 to 1992 (USAID
Project No. 306- 0202). In its presentation to Congress on USAID
activities for the fiscal year 1990, USAID noted that as a result of
the UNO's work on the Education Sector Support Project, "[t]wenty
thousand mujahideen have received literacy training in camps in
Pakistan." App. at 00746.
The USAID contact for UNO's mujahideen literacy project was renewed in
May 1992 for a three-year term with total funding of $18 million. See
App. at 00751 (September 30, 1993 letter by UNO project director
Thomas Goutierre). In UNO's own report on the project under the
renewed contract, UNO reported that its "Education Center for
Afghanistan" was initially formed in 1986 with the aim of
establishing, inter alia, a "literacy course for mujahideen." App. at
00758.
A June 1994 USAID report summarizing the results of the project stated
that "[f]rom FY87 to FY92 some 43,694 Mujahideen were provided
literacy courses in the Winter camps along the border using the
Alphabet of Jehad Liberacy books ... prepared by the ESSP." App.
at 00748 (USAID End of Project Report, June 30, 1994, at 17). An
example of the training pamphlets that UNO used in its literacy
courses appears as App. at 00812. On the cover sheet, the term "jehad"
appears along with "Afghans" and "Learn English 3." Id.

I. Boston University Media Project

Boston University is a private, non-profit institution of higher
education.
On December 9, 1985, Boston University (BU) submitted a proposal to
the United States Information Agency (USIA), a federal agency, to
train Afghan journalists to provide sympathetic coverage of the Afghan
mujahideen. See App. at 00814 ("The Afghan Media Project: A Proposal
Submitted to the United States Information Agency by Boston
University," December 9, 1985). The purpose of the BU project was to
train Afghans in everything from newswriting and reporting, to
photojournalism ("including setting up and running a darkroom"), to
identifying military hardware and combat tactics. App. at 00180-181.
In its first six months, USIA granted BU's Afghan Media Project
$180,364. App. at 00816 ("The Afghan Media Project," USIA, October 1,
1986.) Part of U.S.- government-wide efforts "to maximize coverage of
the war and publicity favorable to the resistance," BU's program
successfully "train[ed] qualified afghan mujahedin in basic media
skills." ("Memorandum for Mr. Frank C. Carlucci," January, 24, 1989,
App. at 00817, and "Afghan Media Project: Next Steps," Confidential
Cable, February 23, 1987, App. at 00822.)
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* * * * *
As the above examples illustrate - and there are many, many more that
can be provided - humanitarian aid on a scale far beyond that alleged
in this indictment was financed with U.S. tax dollars via the
government-funded National Endowment for Democracy (NED) and the
United States Agency for International Development (USAID). No one
questioned the 501(c)(3) status of the organizations involved
(including the 501(c)(3) status of the NED itself). With the end of
Soviet occupation and communist rule in 1991-92, the American
strategic interest in Afghanistan appeared to diminish, and the well
of aid ran dry; it was then left to private Muslim groups to take over
the charitable and humanitarian responsibilities remaining in the
hopes of aiding those who were damaged during the war against the
occupation. But that does not change the character of the activities
involved. Activities that were considered charitable in 1985, 1989,
1991, or 1992 do not become non-charitable in 1993 because the
identity of the donor changes, or because the United States' strategic
interest in jihad has lessened. Certainly, the protection afforded to
these activities cannot turn on whether U.S. policy is or is not pro-
jihad or favors one or another mujahideen faction on a particular
date. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (striking
down Minnesota hate crime ordinance because of constitutionally
impermissible viewpoint discrimination). And USAID funding for the UNO
and BU projects demonstrates clearly that the U.S. government deemed
pro-jihad and pro-mujahideen publications and projects to fall under
the rubric of "educational" activities. Compare App. at 00043 (Care
International's Articles of Incorporation, which provided that Care
was organized for "charitable, religious, educational, and scientific
purposes, including but not limited to, engage in, establish, promote,
contribute and carry out human welfare, charitable and relief
activities, programs, projects, organizations, institutions, and
funds") (emphasis added). [FN21] For the government now to maintain
the contrary would be to violate the longstanding principle of due
process according to which criminal statutes must provide clarity and
notice in order to serve as the basis for a conviction. See, e.g.
United States v. Bass, 404 U.S. 336, 347-48 (1971) ("ambiguity
concerning the ambit of criminal statutes should be resolved in favor
of lenity. In various ways over the years, we have stated that when
choice has to be made between two readings of what conduct Congress
has made a crime, it is appropriate, before we choose the harsher
alternative, to require that Congress should have spoken in language
that is clear and definite.").

FN21. And see Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct.
564, 575, 72 L.Ed. 944 (1928) ("Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches the whole people
by its example.") (Brandeis, J., dissenting).

VI. Other religious charities fund and perform precisely the same
sorts of activities.

Even the most cursory review of the websites of other mainstream
religious charities, from the Jewish National Fund to Catholic
Charities, reveals the sorts of activities that are virtually
identical to the ones that the government is charging are beyond the
scope of First Amendment protection here. Legitimate Muslim charities
may not be placed in a separate and unequal category relative to
traditional - and more familiar to most Americans - Protestant, Jewish
and Catholic charities.
The website of the Jewish National Fund, for example, contains
detailed information about Israel's military successes, and the plight
of its widows and orphans, in the manner of the conduct alleged in the
indictment. A number of Jewish charities conducted emergency appeals
in the wake of the latest Lebanon offensive, not to provide military
aid, but for ancillary assistance for victims. Those charities also
published newsletters to solicit further support, just as Care is
alleged to have done, and just as many other federally funded American
charities did during the Afghan war. [FN22] The prosecution's attempt
to give these charitable endeavors a sinister color is not only
misguided as such, but also lacks a limiting principle and would lead
to the criminalization of a vast sphere of charitable activity that
can only be described as perfectly benign when the relevant words and
concepts are correctly analyzed and understood.

FN22. See, e.g., App. at 00126 (solicitation materials posted on the
website of the Jewish National Fund, a 501(c)(3) organization,
requesting donations to finance the purchase of bulletproof vests,
helmets, and firetrucks in connection with the 2006 Israel-Lebanon
conflict); App. at 00130 ("A Personal Report from the North Battle
Front," detailing the impact of the 2006 Israel-Lebanon conflict,
posted on the website of the United Jewish Communities, a 501(c)(3)
organization); App. at. 00133 ("A Personal Message from Israel's Home
Front Command," also recently posted on the UJC website).

Moreover, to the extent that persons, other than defendants, who may
have been involved in Care engaged in any activities not in keeping
with Care's primary and stated mission, defendants cannot be held
liable for failing to disclose those activities. See NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 931, 934 (1982) ("To impose
liability without a finding that the NAACP authorized - either
actually or apparently - or ratified unlawful conduct would
impermissibly burden the rights of political association that are
protected by the First Amendment.... A court must be wary of a claim
that the true color of a forest is better revealed by reptiles hidden
in the weeds than by the foliage of countless freestanding trees.")
To distinguish in this way between more and less established, or more
and less popular, religions is clearly unconstitutional. Such
discrimination violates both the First Amendment's free exercise
clause and the prohibition on the establishment of certain religions
over others. It is absolutely clear that the government is not free to
prefer one religion over another: if Jews and Catholics are free to
raise money and support their chosen causes domestically and
internationally, no different rules may be applied, retroactively no
less, to a religion which has in recent years become less popular in
America. "[T]he free exercise clause protects all religions, old and
new, alike once its protection attaches." Van Schaick v. Church of
Scientology, 535 F.Supp. 1125, 1137 (D. Mass. 1982). See also United
States v. Ballard, 322 U.S. 78, 86 (1944) ("Men may believe what they
cannot prove. They may not be put to the proof of their religious
doctrines or beliefs... But it would hardly be supposed that they
could be tried before a jury charged with the duty of determining
whether those teachings contained false representations.") And yet it
is precisely these precepts that the Government trenches upon by
bringing this indictment.

VII. To punish CARE for engaging in the same activities as Government-
funded charities and other religious charities deprives defendant of
the fair warning that due process requires, and violates the rule of
lenity.

No principle is more basic to due process than the requirement that an
individual cannot be required to guess, at his peril, about what
activities the criminal law prohibits. The rules must be clear and
knowable, and their application reasonably foreseeable. Otherwise the
criminal law becomes a trap for the unwary; and too much discretion
becomes vested in the prosecutor to choose what conduct, or what
individual, is subject to prosecution. See, e.g., Papachristou v. City
of Jacksonville, 405 U.S. 156 (1972); United States v. Bass, 404 U.S.
336, 347-48 (1971); and Morissette v. United States, 342 U.S. 246
(1952).
Here, the indictment is both vague and overbroad. It is vague in that
it would make what many Muslim charities do criminal, since Islam
commands support for zakat, advocacy of mujahideen, and, according to
some interpretations, advocacy of jihad. It is overbroad in that it
fails to specify which jihads and which mujahideen of all those that
have existed or exist today it is illegal to advocate for, and to whom
zakat may, or may not, be directed. Given this reality, it inevitably
vests virtually unlimited discretion in government prosecutors (and,
one must add in this case, immigration and naturalization agents) to
decide whom to prosecute and for what. Under such a regime, that is at
the same time replete with endless laws but without sufficient
substance and specificity to give fair warning, the individual cannot
hope to conform his conduct to the requirements of law, short of
stopping support for and participation in a vast variety of common
Muslim and other religious charitable causes altogether. This, of
course, is the very essence of a prohibited chilling effect in the
vital area of the free exercise of religion. And yet that is precisely
how the government managed to generate the eleventh hour indictment in
this case that resulted in postponing, and perhaps preventing
altogether, another member of the Muslim faith from becoming an
American citizen. [FN23]

FN23. See also Big Mama Rag, Inc. v. U.S., 631 F.2d 1030 (D.C. Cir.
1980) (holding that IRS Reg. § 1.503(c)(3)-1(d)(3)(i), defining
"educational" for 501(c)(3) exemption purposes, is unconstitutionally
vague, leaving too much room for discriminatory denial of tax-exempt
status). The Big Mama Rag Court criticized the IRS for "doctrinaire,"
"value-laden" judgments in denying exemption based on the content of
the organization's speech. Id. at 1039-40.

Conduct should not and cannot be criminalized depending upon what
definition of religious terms a judge and jury decide to apply
retrospectively. Religion permeates this entire case. Care was set up
to advance religious goals; jihad is a religious concept; zakat is a
religious obligation; support for the mujahideen is, according to
certain interpretations of the Koran, a religious command.
The definition of these terms, far from being a matter for judge and
jury, is precisely what the First Amendment commands courts and juries
to avoid and instead to leave to religions themselves. There is in
fact a long line of cases requiring courts to abstain from all forms
of religious disputes which require judicial resolution of religious
terms. In the leading case of United States v. Ballard, 322 U.S. 78
(1944), the court dealt with a mail fraud conviction of a promoter of
a religious movement. The defendant sold memberships on the strength
of the movement's professed religious beliefs. The conviction was
reversed by the Supreme Court, which admonished that religious freedom
"embraces the right to maintain theories of life and death ... which
are rank heresy to followers of the orthodox faiths," and that "if one
could be sent to jail because a jury in a hostile environment found
those teachings false, little indeed would be left of religious
freedom." Id. at 86, 87.
Indeed, in the landmark case of Walz vs. Tax Commission of the City of
New York, 397 U.S. 664 (1970), the Court declined to declare
unconstitutional the exemption of churches from property taxes. The
Court reasoned that the church did not have to justify its exemption
by proving its work in the social services arena, for example, since
that requirement "would introduce an element of governmental
evaluation and standards to the worth of particular social welfare
programs, thus producing a kind of continuing day-to-day relationship
which the policy of neutrality seeks to minimize." Id. at 674.
And yet these kinds of prohibited interference in and judgment of the
varied practices and beliefs of what (to most jurors) are unfamiliar
religious beliefs and practices are precisely what the court and the
jury would be required to engage in here in order to resolve this
case. The specter of a predominantly or exclusively non-Muslim jury
and court called upon to define the most basic requirements of Islam
and then draw the lines between what is and is not considered
religious is just the sort of affront to the free exercise of religion
that both the free exercise and establishment clauses were intended to
avoid. If the government has evidence that this defendant engaged in
unlawful or terrorist-related activity, it should have produced it to
the grand jury and should be required to produce it now. [FN24] If, on
the other hand, the government is relying upon vague assertions that
the defendants, by virtue of their charitable activities, are
jihadists and that they failed to disclose that on a tax-exemption
application or in a government interview, this indictment should be
dismissed. On the face of the indictment, the latter, not the former,
appears to be the case.

FN24. It is not enough for the government to produce evidence of
wrongdoing (if any exists) by an errant member of Care. This legal
requirement would be satisfied only by evidence of wrongdoing
committed by defendants or someone with whom they were engaged in a
conspiracy. Mere membership or even leadership of Care is not the kind
of conspiracy pursuant to which defendants can be held criminally
responsible for any errant acts of other individuals who may have been
associated with Care. NAACP v. Claiborne Hardware Co., 458 U.S. 886,
931, 934 (1982).

VIII. Even apart from the free exercise of religion, the First
Amendment's guarantee of free speech prohibits the government from
punishing defendants for what amounts to pure advocacy as opposed to
inciting imminent lawless conduct.

All of the activities charged in the indictment relate to speech,
writings, and publications. There is no reference whatsoever to any
acts of violence incited by either of the defendants or Care. The
Supreme Court has drawn a sharp line between advocacy and action,
making clear that only the latter may constitutionally be prohibited.
In Brandenburg v Ohio, supra, the Supreme Court struck down an Ohio
criminal syndicalism statute that punished "persons who advocate or
teach the duty, necessity, or propriety of violence as a means of
accomplishing industrial or political reform; or who publish or
circulate or display any book or paper containing any such advocacy."
Brandenburg, 395 U.S. at 444-45. The Court found that "[n]either the
indictment nor the trial judge's instructions to the jury in any way
refined the statute's bald definition of the crime in terms of mere
advocacy not distinguished from incitement to imminent lawless
action." Id. at 448-49.
This requirement that only speech that incites imminent lawless action
- as opposed to mere advocacy - can be punished was further
strengthened when the Court struck down a city's hate crime statute in
1992 when applied to the burning of a cross on the lawn of an African
American. The ordinance, the court held, was facially unconstitutional
even though it was written to be limited to "fighting words," because
it impermissibly drew lines based on the point of view expressed.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). The majority
concluded that the ordinance was not viewpoint neutral because in
practice it would punish fighting words from only one side of the
fence. Justice Scalia, writing for the majority, gave an example: "One
could [under St. Paul's ordinance] hold up a sign saying, for example,
that all 'anti-Catholic bigots' are misbegotten; but not that all
'papists' are, for that would insult and provoke violence 'on the
basis of religion.' St. Paul has no such authority to license one side
of a debate to fight freestyle, while requiring the other to follow
Marquis of Queensbury rules." Similar, the federal government does not
have the authority to pick and choose which religious activities or,
for that matter, which religions, it will favor.
In a more recent cross-burning case, the Supreme Court held that cross-
burning could be punished only where the jury is able to conclude that
in the context of the facts of a particular case, it is clear that the
cross-burning was intended to constitute a threat within the
traditional meaning of that term, rather than a symbolic act of
hatred. Virginia v. Black, 538 U.S. 343 (2003). This makes even more
vivid the line that must be drawn between protected activity and
criminal activity.
If the Klu Klux Klan cannot be punished for burning a cross on the
lawn of a black family notwithstanding local hate crime laws, and
Jehovah's Witnesses are permitted to solicit notwithstanding local
licensing regulations, and the Government itself is free to fund other
local charities to do exactly what it alleges Care was doing a mere
two or three years before, it should go without saying that advocacy
of jihad, promotion of zakat, and support of mujahideen do not strip a
charitable organization of its 501(c)(3) status, and that an
organization's engagement in such advocacy, promotion and support
cannot strip it of charitable status. Hence, these issues become
immaterial.

IX. The IRS's own regulations makes clear that the content of a
charity's speech advocating social or civic change is not to be viewed
as relevant to the 501(c)(3) exemption question.

Applicable IRS regulations reinforce defendants' free exercise of
religion and free speech claims. IRS Reg. § 1.501(c)(3)-1(d)(2) states
as follows:
The fact that an organization, in carrying out its primary purpose,
advocates social or civic changes or presents opinion on controversial
issues with the intention of molding public opinion or creating public
sentiment to an acceptance of its view does not preclude such
organization from qualifying under section 501(c)(3) so long as it is
not an action organization of any one of the types described in
paragraph (c)(3) of this section. [FN25]

FN25. Paragraph (c)(3), in turn, provides that an "action"
organization is one that focuses on advocating the passage or defeat
of legislation.

IRS Reg. § 1.501(c)(3)-1(d)(2). This regulation makes clear that
according to the IRS's own definition of the 501(c)(3) exemption, the
content of a charity's speech, or the fact that a charity engages in
certain speech, is not to be viewed as relevant to the exemption
question. From this it follows a fortiori that the IRS has not
required and does not require charities to provide specifications in
their forms 1023 and 990 about this kind of activity. Finally, an
organization reading this regulation would not know that failing to
provide more detail about its intended speech would make a form 1023
or 990 a false filing.

X. Selective Prosecution.

In order to prevail on a claim of selective prosecution, a defendant
must prove by "clear evidence" that the decision to prosecute (1) was
motivated by a discriminatory purpose and (2) had a discriminatory
effect. United States v. Armstrong, 517 U.S. 456, 464 (1996). If a
defendant makes "a credible showing of different treatment of
similarly situated persons," he may obtain discovery as to selective
prosecution issues. Id. at 470.
In this case, the evidence of discriminatory purpose and effect alike
are manifestly clear. As set forth above in the introduction to this
memorandum, the government plainly brought this facially
unconstitutional indictment in order to cut off the possibility that
Judge Zobel might have granted Mr. Muntasser's petition for
naturalization. The evidence of forum shopping cited above (and in
connection with Defendants' concurrently filed Motion for Jury
Selection from the Eastern Division of Massachusetts) simply confirms
that the government has acted with the improper purpose of interfering
with the jurisdiction of a federal court and with the unfolding of a
federal proceeding lawfully brought under the authority of a statute
of the United States. That Mr. Muntasser, in bringing his
naturalization lawsuit, had the courage to insist that the INS treat
immigrants of all backgrounds and faiths with equal dignity and
respect only makes all the more egregious the government's
manipulation of congressionally mandated procedures put in place to
ensure the equitable and efficient disposition of citizenship
applications. If this be not improper purpose, it is difficult to
imagine what would be.
As for discriminatory effect, defendants reincorporate by reference
the extensive discussion, supra at 19, of similarly situated,
government-funded charities "engaged in activities involving the
solicitation and expenditure of funds to support and promote the
mujahideen and jihad, including the distribution of pro-jihad
publications." App. at 00108 (Indictment at ¶5). To this evidence can
be added the abundant evidence of other recognized 501(c)(3)
organizations, too numerous to mention, that engaged in widely
publicized, pro-mujahideen and pro-jihad conduct in connection with
the conflicts in Afghanistan during the 1980s and well into the 1990s,
with no hint of a suggestion that their 501(c)(3) might have been
called into question. Defendants submit that the evidence assembled in
the appendix to this motion more than carries their burden with
respect to the discriminatory effect prong of the selective
prosecution test. That other, more familiar and more mainstream
religious charities have also engaged in conduct analogous to that
specified as the basis for criminal liability in this indictment only
confirms what is more than plain for any disinterested observer to
see: namely, that the government in this case is selectively targeting
two defendants for criminal prosecution because of who they are and
what religion they practice rather than because of anything they may
have done as individuals that can reasonably be described as criminal.
This is the very essence of discriminatory effect under the Court's
selective prosecution jurisprudence. Unless the government is prepared
to investigate and indict the entire leadership of the National
Endowment for Democracy, the U.S. Agency for International
Development, the United States Information Agency, and charities too
numerous to mention, ranging from the now-defunct Americans Friends of
Afghanistan to Management Sciences for Health (which continues to
operate in Afghanistan to this day), this indictment must fall as a
classic embodiment of a selective prosecution.

XI. The successor/outgrowth issue and the ambiguity of the Form 1023
instructions.

The indictment also charges that Care failed to disclose that it was a
"successor" to or "outgrowth" of the Al-Kifah Refugee Center, and
quotes "media reports" linking the Al Kifah Refugee Center to the 1993
World Trade Center bombings. Except insofar as Care was formed
precisely for the purpose of disassociating the new organization from
the Al-Kifah Refugee Center, the government's claim linking Care and
the Al-Kifah Refugee Center is a red herring that consists entirely of
prejudicial insinuation compounded by layers of hearsay. The Al-Kifah
Refugee Center was not, in any event, a Massachusetts corporation, nor
even a 501(c)(3) organization, and Care did not assume any of the
assets or liabilities of Al-Kifah, which continued to exist
independently and continued to publish a newsletter under a title
("The Sword") that is far from unique in the Islamic world.
More to the point, the same vagueness and lack of notice objections
that extend to this indictment generally, see supra at 37-40, also
condemn the government's theory of liability with respect to the
relationship between the Al-Kifah Refugee Center and Care
International. Question #5 of the IRS Form 1023 filed by Care asked in
relevant part "[i]s the organization the outgrowth of (or successor
to) another organization, or does it have a special relationship with
another organization by reason of interlocking directorates or other
factors?" App. at 00036. The 1993 instructions for Form 1023 contain
absolutely no instructions as to the meaning of the terms "outgrowth"
or "successor." App. at 00826.
Hence, when Mr. Muntasser filed Care's 1023 application, the IRS
instructions then available to him provided not the least bit of
guidance as to the proper way to answer a question as open-ended and
vague as whether Care may have been the "successor" or "outgrowth" of
another organization. In these circumstances, it is not possible to
say that defendants had clear notice that the conduct the government
now seeks to proscribe was illegal. Papachristou, 405 U.S. at 162
(finding a constitutional violation where an ordinance or regulation
"fails to give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute"). [FN26]

FN26. This is particularly the case where the statutes under which the
government seeks to charge defendants are equally broad and open-ended
as the federal false statements/concealment of material facts statute
and the Klein conspiracy statute.

The current (2006) Form 1023, moreover, has entirely done away with
the "outgrowth" inquiry. The current Question #5 (under the heading
"Part VII: Your History") asks simply: "Are you a successor to another
organization?" App. at 00838. The deletion of the "outgrowth" inquiry
demonstrates that today "outgrowth" is not seen by the IRS as even
relevant to the exemption question. In further contrast to the 1993
forms and instructions, the current form and the current instructions
together provide a tight definition of "successor" (a definition that
happens to be plainly inapplicable to the formation history of Care
International). Thus, the current form 1023 directs an applicant to
answer "yes" to the "successor" inquiry "if you have taken or will
take over the activities of another organization; you took over 25% or
more of the fair market value of the net assets of another
organization; or you were established upon the conversion of an
organization from for-profit to non-profit status." App. at 00857.
The current (2006) instructions state in a very similar vein that a
"successor" organization is one that has "substantially taken over all
of the assets or activities of another organization, been converted or
merged from another organization, or installed the same officers,
directors, or trustees as another organization that no longer exists
and that had purpose(s) similar to your purpose(s)." App. at 00871.
[FN27]

FN27. As an incidental matter, it is incontrovertible, and the
government acknowledges, that the Al-Kifah Refugee Center continued to
exist until well after Mr. Muntasser founded Care International.

It is true that while the current form no longer poses the "outgrowth"
inquiry that featured in the 1993 version of Form 1023, the current
form, under the heading "Part VIII: Your Specific Activities," does
ask the question "[d]o you have a close connection with any
organizations?" App. at 00838. It is equally true, however, that the
current instructions provide an elaborate definition of the phrase
"close connection." Thus, for example, a "close connection" exists if
"you control the organization or it controls you through common
officers, directors, or trustees, or through authority to approve
budgets or expenditures," or if "you and the organization were created
at approximately the same time and by the same persons." App. at
00873. Even assuming, as a hypothetical matter, that any part of this
definition would have brought Care International within its scope, it
is also the case that nothing near this level of specificity was
provided to filers in 1993.
In short, the government's theory of liability with respect to an
alleged "successor" or "outgrowth" relationship between Care
International and the Al-Kifah Refugee Center must fail for one of the
same reasons that its theory of liability with respect to Care's
alleged promotion of jihad and the mujahideen must fail: namely, the
rule of lenity and the due process requirement that a defendant may
not be convicted under a statute or regulation that fails to give him
clear notice of the conduct that the government seeks to criminalize.
See, e.g., United States v. Bass, 404 U.S. 336, 347-48 (1971)
("ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity. In various ways over the years, we have
stated that when choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we choose
the harsher alternative, to require that Congress should have spoken
in language that is clear and definite."). [FN28]

FN28. Lest there be any doubt that the relevant IRS forms and
instructions did not provide defendants with clear notice of the
conduct that the government now seeks to proscribe, it should be noted
that the IRS Form 990s filed by Care International asked the
following, at line 80: "Is the organization related (other than by
association with a statewide or nationwide organization) through
common membership, governing bodies, trustees, officers, etc. to any
other exempt or nonexempt organization? (See instructions)." App. at
00905 (1994 Form 990 filed by Care International). That is all that
asked that relates even remotely to the "successor" and "outgrowth"
inquiries. Question 80, with its quite narrow scope of inquiry,
remains unchanged in today's Form 990. The 1994 instructions for Form
990 provide that, in determining whether to answer "yes" to Question
80, an ...

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