                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                Plaintiff-Appellant,
AMERICAN CIVIL LIBERTIES
UNION OF NORTHERN CALIFORNIA
INC; THE NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS; AND
CALIFORNIA ATTORNEYS FOR
CRIMINAL JUSTICE,                            No. 02-50355

                                       
                        Intervenors,           D.C. No.
                v.                         CR-01-00209-RMT
HOSSEIN AFSHARI, aka Hosseini                  OPINION
Deklami; MOHAMMAD OMIDVAR;
HASSAN REZAIE; ROYA RAHMANI,
aka Sister Tahmineh; NAVID TAJ,
aka Najaf Eshkoftegi; MUSTAFA
AHMADY; ALIREZA MOHAMAD
MORADI,
             Defendants-Appellees.
                                       
       Appeal from the United States District Court
           for the Central District of California
       Robert M. Takasugi, District Judge, Presiding

                 Argued and Submitted
         September 9, 2003—Pasadena, California

                   Filed October 20, 2005

 Before: Andrew J. Kleinfeld, Kim McLane Wardlaw, and
           William A. Fletcher, Circuit Judges.

                Opinion by Judge Kleinfeld

                            14393
                       UNITED STATES v. AFSHARI                      14397




                              COUNSEL

Douglas N. Letter, U. S. Department of Justice, Washington,
D.C., for the appellant.

Stephen P. Berzon, Altshuler, Berzon, Nussbaum, Rubin &
Demain, San Francisco, California, for the appellees.


                               OPINION

KLEINFELD, Circuit Judge:

   We review the constitutionality of a statute prohibiting
financial support to organizations designated as “terrorist.”

                                  Facts

   The issue here is the constitutionality of the crime charged
in the indictment, that from 1997 to 2001, Rahmani and others
knowingly and willfully conspired to provide material support
to the Mujahedin-e Khalq (“MEK”),1 a designated terrorist
organization, in violation of 18 U.S.C. § 2339B(a)(1).2

   According to the indictment, the defendants solicited chari-
table contributions at the Los Angeles International Airport
for the “Committee for Human Rights,” gave money and
credit cards to the MEK, and wired money from the “Com-
  1
     The MEK is also known as the People’s Mojahedin Organization for
Iran, or PMOI, and has a variety of other aliases.
   2
     In 1997, the Secretary of State designated the MEK as a foreign terror-
ist organization under 8 U.S.C. § 1189.
14398                UNITED STATES v. AFSHARI
mittee for Human Rights” to an MEK bank account in Tur-
key. They did all this after participating in a conference call
with an MEK leader, in which they learned that the State
Department had designated the MEK as a foreign terrorist
organization. The MEK leader told them to continue to pro-
vide material support despite the designation. According to
the indictment in this case, the money they sent to the MEK
amounted to at least several hundred thousand dollars.

   The MEK was founded in the 1960’s as an Iranian Marxist
group seeking to overthrow the regime then ruling Iran. It par-
ticipated in various terrorist activities against the Iranian
regime and against the United States, including the taking of
American embassy personnel as hostages in 1979. After the
Iranian regime fell and was replaced by a clerical, rather than
a Marxist, regime, MEK members fled to France. They later
settled in Iraq, along the Iranian border. There they carried out
terrorist activities with the support of Saddam Hussein’s
regime,3 as well as, if the indictment is correct, the money that
the defendants sent them.

   The MEK, since first being designated a terrorist organiza-
tion, has developed a convoluted litigation history in the
United States Court of Appeals for the District of Columbia.
Because this history is important to the outcome of this case,
we will briefly review the relevant parts.

   The MEK was first designated a terrorist organization in
1997. The D.C. Circuit upheld this designation because the
MEK was a “foreign entity without . . . presence in this coun-
try” and thus “ha[d] no constitutional rights under the due
process clause.”4 Therefore, the MEK was not entitled to
notice and a hearing. It also found the administrative record
  3
    The 1997-2001 period of the conspiracy charged in the indictment was
during Saddam Hussein’s regime.
  4
    People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17, 22
(D.C. Cir. 1999).
                       UNITED STATES v. AFSHARI                      14399
sufficient to establish that the MEK “engages in terrorist activi-
ty.”5 In the process of designating MEK a terrorist organiza-
tion in 1999, the State Department determined that another
organization, the National Council of Resistance of Iran, was
an “alias” of the MEK.6 When reviewing the 1999 designa-
tion, the D.C. Circuit held that the second organization had a
presence in the United States and, based on that presence, that
both organizations were entitled to “the opportunity to be
heard at a meaningful time and in a meaningful manner.”7

   The D.C. Circuit remanded the 1999 designation to the
State Department with the instructions that both organizations
be given an opportunity “to file evidence in support of their
allegations that they are not terrorist organizations.”8 Instead,
the MEK submitted evidence showing that it was responsible
for numerous assassinations of Iranian officials and mortar
attacks on Iranian government installations.9 Upon reviewing
this redesignation, the D.C. Circuit noted that any procedural
due process error that might have existed was harmless
because the MEK had “effectively admitted” that it was a ter-
rorist organization.10

  For purposes of reviewing a motion to dismiss an indict-
ment, we assume the truth of what the indictment alleges.11
Thus, we take it as true that the defendants knew that they
were furnishing assistance to a designated “terrorist” organi-
zation, having been informed of the designation in a confer-
ence call with an MEK leader.
  5
    Id. at 24-25.
  6
    Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192, 197
(D.C. Cir. 2001).
  7
    Id. at 208.
  8
    Id.
  9
    People’s Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238,
1243 (D.C. Cir. 2003).
  10
     Id.
  11
     United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).
14400                       UNITED STATES v. AFSHARI
   The district court dismissed the indictment on the ground
that the terrorist designation statute12 was unconstitutional.
We review de novo,13 and reverse.

                                      Analysis

I.        Challenging the designation.

  8 U.S.C. § 1189(a)(1) sets out a carefully articulated
scheme for designating foreign terrorist organizations. To
make the designation, the Secretary has to make specific find-
ings that “the organization is a foreign organization”; that “the
organization engages in terrorist activity (as defined in 8
U.S.C. § 1182(a)(3)(B))”; and that “the terrorist activity of the
organization threatens the security of United States nationals
or the national security of the United States.”14
     12
      8 U.S.C. § 1189.
     13
      United States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir.
1991).
   14
      8 U.S.C. § 1182(a)(3)(B)(iii). Terrorist activity defined. As used in
this Act, the term “terrorist activity” means any activity which is unlawful
under the laws of the place where it is committed . . . and which involves
any of the following:
          (I) The highjacking or sabotage of any conveyance . . .
          (II) The seizing or detaining, and threatening to kill, injure, or
          continue to detain, another individual in order to compel a third
          person . . . to do or abstain from doing any act as an explicit or
          implicit condition for the release of the individual seized or
          detained.
          (III) A violent attack upon an internationally protected person
          . . . or upon the liberty of such a person.
          (IV) An assassination.
          (V) The use of any —
              (a) biological agent, chemical agent, or nuclear weapon or
              device, or
              (b) explosive or firearm . . . ,
                      UNITED STATES v. AFSHARI                     14401
   The Secretary of State’s designation is only the beginning.
The Secretary also must furnish the congressional leadership
advance notification of the designation and the factual basis
for it, which Congress can reject.15 The designation is pub-
lished in the Federal Register.16 The designated organization
is entitled to judicial review of the Secretary’s action in the
United States Court of Appeals for the District of Columbia.17
That court is directed to set aside the designation for the ordi-
nary administrative law reasons, such as that the designation
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.”18 That court must also set aside
a designation for several other reasons, including that the des-
ignation is “contrary to constitutional right, power, privilege,
or immunity.”19 Congress or the Secretary can revoke a designa-
tion.20 Among the concrete incentives that a designated orga-
nization has to contest the designation is that the Secretary of
the Treasury may require American financial institutions to
block all financial transactions involving its assets.21

   [1] The district court found that it was a facially unconstitu-
tional restriction on judicial review of the designation for
Congress to assign such review exclusively to the D.C. Cir-
cuit. We reject that position.

    with intent to endanger, directly or indirectly, the safety of one
    or more individuals or to cause substantial damage to property.
    (VI) A threat, attempt, or conspiracy to do any of the foregoing.
22 U.S.C. § 2656f(d)(2). [T]he term “terrorism” means premeditated,
politically motivated violence perpetrated against noncombatant targets by
subnational groups or clandestine agents.
  15
     8 U.S.C. § 1189(a)(2)(A)(i).
  16
     Id. § 1189(a)(2)(A)(ii).
  17
     Id. § 1189(c)(1).
  18
     Id. § 1189(c)(3)(A).
  19
     Id. § 1189(c)(3)(B).
  20
     Id. § 1189(a)(5), (6).
  21
     Id. § 1189(a)(2)(C).
14402                 UNITED STATES v. AFSHARI
   [2] Many administrative determinations are reviewable
only by petition to the correct circuit court, bypassing the dis-
trict court, and that procedure has generally been accepted.22
Many are reviewable only in the D.C. Circuit, or the Federal
Circuit, and those restrictions have also been generally accept-
ed.23 The congressional restriction does not interfere with the
opportunity for judicial review, as the MEK’s extensive litiga-
tion history shows. And this scheme avoids the awkwardness
of criminalizing material support for a designated organiza-
tion in some circuits but not others, as varying decisions in the
different regional circuits might.

   [3] However, a holding that a restriction of judicial review
of the Secretary of State’s designation of a terrorist organiza-
tion to the Court of Appeals for the D.C. Circuit is not facially
unconstitutional does not settle the question whether a defen-
dant may be criminally prosecuted for donating to a desig-
nated organization. A defendant prosecuted in district court
for donating to such an organization may bring a due process
challenge to his or her prosecution in the district court. The
district court properly ruled that it had jurisdiction to review
this challenge. But its conclusion that § 1189 is facially
unconstitutional, because judicial review of the terrorist desig-
nation was assigned exclusively to the D.C. Circuit, was in
error.

II.    Due Process claim.

  The statute assigns criminal penalties to one who “know-
ingly provides material support or resources to a foreign ter-
  22
      See, e.g., City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336
(1958); Lockerty v. Phillips, 319 U.S. 182 (1943) (holding that a district
court lacked jurisdiction to hear a challenge to price controls under the
Emergency Price Controls Act where Congress had vested judicial review
for such challenges in an Emergency Court of Appeals).
   23
      See, e.g., 47 U.S.C. § 402(b) (vesting exclusive jurisdiction in the
D.C. Circuit over appeals from certain decisions and orders of the Federal
Communications Commission).
                        UNITED STATES v. AFSHARI                 14403
rorist organization, or attempts or conspires to do so.”24 The
statutory phrase “terrorist organization” is a term of art,
defined by Congress as “an organization designated as a ter-
rorist organization” under 8 U.S.C. § 1189(a)(1).25 The defen-
dants’ central argument is that § 2339B denies them their
constitutional rights because it prohibits them from collater-
ally attacking the designation of a foreign terrorist organiza-
tion. This contention was recently rejected by the Fourth
Circuit en banc.26 We, too, reject it.

   [4] The specific section that is at issue here is 8 U.S.C.
§ 1189(a)(8), which states in relevant part:

       If a designation . . . has become effective . . . a
       defendant in a criminal action or an alien in a
       removal proceeding shall not be permitted to raise
       any question concerning the validity of the issuance
       of such designation or redesignation as a defense or
       an objection at any trial or hearing.

   The defendants are right that § 1189(a)(8) prevents them
from contending, in defense of the charges against them under
18 U.S.C. § 2339B, that the designated terrorist organization
is not really terrorist at all. No doubt Congress was well aware
that some might claim that “one man’s terrorist is another
man’s freedom fighter.” Congress clearly chose to delegate
  24
    18 U.S.C. § 2339B. Providing material support or resources to desig-
nated foreign terrorist organizations
       (a) Prohibited activities—
     (1) Unlawful conduct—Whoever knowingly provides material
     support or resources to a foreign terrorist organization, or
     attempts or conspires to do so, shall be fined under this title or
     imprisoned not more than 15 years, or both, and, if the death of
     any person results, shall be imprisoned for any term of years or
     for life.
  25
     18 U.S.C. § 2339(B)(g)(6).
  26
     United States v. Hammoud, 381 F.3d 316 (4th Cir. 2004) (en banc).
14404                 UNITED STATES v. AFSHARI
policymaking authority to the President and Department of
State with respect to designation of terrorist organizations,
and to keep such policymaking authority out of the hands of
United States Attorneys and juries. Under § 2339B, if defen-
dants provide material support for an organization that has
been designated a terrorist organization under § 1189, they
commit the crime, and it does not matter whether the designa-
tion is correct or not.

   [5] The question then is whether due process prohibits a
prosecution under § 2339B when the court vested with the
power to review and set aside the predicate designation deter-
mines that the designation was obtained in an unconstitutional
or otherwise erroneous manner, but nevertheless declines to
set it aside. In reviewing MEK’s 1999 designation, the D.C.
Circuit found that “the designation does violate the due pro-
cess rights of the petitioners under the Fifth Amendment”
because the designation process did not afford MEK notice or
an opportunity to be heard.27 The D.C. Circuit did not vacate
the designation, citing foreign policy and national security
concerns as well as the fact that the designation would be
expiring shortly.28 Instead it left the designation in place and
remanded to the Secretary of State with instructions that MEK
be afforded due process rights.29

   Defendants argue that the D.C. Circuit’s failure to vacate
the 1999 designation after finding a due process violation is
incompatible with § 1189’s “shall . . . set aside” language, and
thus that the statute prohibits using the designation as a valid
predicate for a subsequent prosecution. But we do not have
authority to reverse the decisions of a sister circuit. Nor do we
have the authority to review the State Department’s designa-
  27
     Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,
196, 200 (D.C. Cir. 2001).
  28
     Id. at 209.
  29
     Id.
                      UNITED STATES v. AFSHARI                      14405
tion because the statute confers that jurisdiction exclusively in
the D.C. Circuit.
   [6] Nor, although the plain language of § 1189(c)(3)
appears to be mandatory, is the D.C. Circuit’s approach
inconsistent with precedent in analogous situations. Section
1189(c)(3) is nearly identical to § 706 of the Administrative
Procedure Act, and the remedy the D.C. Circuit used here—
remand without vacatur—has been used several times under
the APA.30 Though not entirely uncontroversial, remand with-
out vacatur has long been supported by Supreme Court prece-
dent,31 had been utilized before the enactment of § 1189 in
1996, and was well-established when Congress modified ele-
ments of § 1189 in 2001 and 2004 without altering the judi-
cial review procedure. Thus, despite the seemingly mandatory
language in the statute, we believe § 1189(c)(3) can reason-
ably be read as the D.C. Circuit read it, to allow the remand
of a designation without vacating it. This is especially so in
this case, because the designation would have been unobjec-
tionable if, as it initially appeared, the MEK was located
entirely abroad and had no American location, and was, in
any event, harmless because the MEK proudly proclaimed its
own terrorist activities. Moreover, we will not lightly contra-
dict in a collateral proceeding such as this a co-equal court’s
well established interpretation of a statute. Defendants’ statu-
tory argument therefore fails.
   Defendants further claim that the Due Process Clause pre-
vents a designation found to be unconstitutional from serving
as a predicate for the charge of providing material support to
a designated terrorist organization, even if the designation has
never been set aside.32 There are several reasons why this
argument lacks force.
  30
      See, e.g., Idaho Farm Bureau Federation v. Babbitt, 58 F.3d 1392,
1405-06 (9th Cir. 1995).
   31
      See, e.g., Hecht Co. v. Bowles, 321 U.S. 321, 329-30 (1943).
   32
      It bears noting that we are not addressing the constitutionality of a
statute lacking in judicial review. To the contrary, § 1189 explicitly pro-
vides for judicial review, and the designation at issue in this case with-
stood judicial review when the D.C. Circuit let the MEK’s 1999 designa-
tion stand.
14406                  UNITED STATES v. AFSHARI
   First, the Supreme Court in Lewis v. United States held that
a prior conviction could properly be used as a predicate for a
subsequent conviction for a felon in possession of a firearm,
even though it had been obtained in violation of the Sixth
Amendment right to counsel.33 The Court held that it was
proper to prohibit a collateral attack on the predicate during
the criminal hearing because the felon-in-possession statute
made no exception “for a person whose outstanding felony
conviction ultimately might turn out to be invalid for any rea-
son.”34 The Court noted that the prohibition on collateral
attack was proper because a convicted felon could challenge
the validity of the conviction before he purchased his firearm.35

   [7] The defendants attempt to distinguish Lewis from this
§ 2339B prosecution because the defendant in Lewis had the
ability to challenge his predicate, whereas here the defendants
themselves are prohibited from challenging the designation.
But this does not change the principle that a criminal proceed-
ing may go forward, even if the predicate was in some way
unconstitutional, so long as a sufficient opportunity for judi-
cial review of the predicate exists. Here there was such an
opportunity, which the MEK took advantage of each time it
was designated a foreign terrorist organization.36

  [8] Second, the D.C. Circuit declined to set aside the 1999
designation. It remanded the determination but carefully
explained that it did not vacate the designation.37 After the
remand, the D.C. Circuit upheld the redesignation; therefore,
  33
     Lewis v. United States, 445 U.S. 55 (1980).
  34
     Id. at 62.
  35
     Id. at 64.
  36
     See People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17
(D.C. Cir. 1999); Nat’l Council of Resistance of Iran v. Dep’t of State, 251
F.3d 192 (D.C. Cir. 2001); People’s Mojahedin Org. of Iran v. Dep’t of
State, 327 F.3d 1238 (D.C. Cir. 2003).
  37
     Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192,
209 (D.C. Cir. 2001).
                       UNITED STATES v. AFSHARI                      14407
at all relevant times, the “foreign terrorist organization” desig-
nation had been in full force. This court and the D.C. Circuit
are co-equal courts. We cannot reverse its decision.38 Addi-
tionally, the statute expressly provides that only the D.C. Cir-
cuit may review these designations,39 so it would be contrary
to the statutory scheme for us to hold that the designation was
invalid. We have already determined that any constitutional
challenge against 8 U.S.C. § 1189 “must be raised in an
appeal from a decision to designate a particular organization”
and must be heard in the D.C. Circuit.40

   [9] Third, 18 U.S.C. § 2339B only requires that Rahmani,
et al., had knowledge of the MEK’s designation as a foreign
terrorist organization. The Fourth Circuit, sitting en banc, held
that a criminal defendant charged under this statute cannot
bring a challenge to the validity of a designation of an organi-
zation as “terrorist.” In a case where there was no indication
that the designation was invalid (other than the defendant’s
would-be challenge), the Fourth Circuit wrote, “[T]he fact of
an organization’s designation as an [terrorist organization] is
an element of § 2339B, but the validity of the designation is
not.”41 Here, the MEK has been designated a terrorist organi-
zation throughout the relevant period, and that designation has
never been set aside. According to the indictment, defendants
had knowledge of this designation, they were told during a
telephone conference call with an MEK leader in October
1997 that the MEK had been designated a foreign terrorist
organization by the State Department.
  38
     See Lowenschuss v. West Publishing Co., 542 F.2d 180,183 (3rd Cir.
1976) (ruling on an “official opinion of a court of another circuit . . . is
undesirable on policy grounds alone”).
  39
     8 U.S.C. § 1189(c); See also Humanitarian Law Project v. Reno, 205
F.3d 1130, 1137 (9th Cir. 2000) (the statute “provides for judicial review
of the Secretary’s decision in the” D.C. Circuit).
  40
     Humanitarian Law Project, 205 F.3d at 1137.
  41
     United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en
banc) (emphasis in original), rev’d on other grounds, 125 S.Ct. 1051
(2005), reinstated in part, 405 F.3d 1034 (4th Cir. 2005).
14408                  UNITED STATES v. AFSHARI
  [10] Fourth, as discussed earlier, the D.C. Circuit ultimately
held that the procedural due process violation it identified was
harmless. When challenging the 1999 designation, the MEK
admitted to numerous terrorist acts making an argument that
amounted to a claim that the enemy of our enemy is our friend,42
a decision that is committed to the Executive Branch, not the
courts. Due to this “admission,” the D.C. Circuit held that,
even if there were a due process violation, the MEK was not
harmed by it.

   [11] Thus, defendants’ new due process argument attacks
a designation that withstood judicial review, that we have no
authority to review, that defendants knew was in place
throughout the period of the indictment, and that is supported
by the MEK’s own submission. Defendants suffered no depri-
vation of due process, and even if they had, it was harmless.

   The defendants further attempt to distinguish Lewis, a
Supreme Court decision adding that a prior conviction is an
adequate predicate for a “felon in possession” charge even if
the prior conviction was obtained unconstitutionally, by rely-
ing on United States v. Mendoza-Lopez.43 In that case, the
Supreme Court held that a prosecution under 8 U.S.C. § 1326
for illegal reentry does not comport with due process if there
is no judicial review of whether the predicate deportation pro-
ceeding violated the alien’s rights.44 It is not at all clear from
Mendoza-Lopez that the Supreme Court meant that the due
process problem is in the later proceeding. The Court held
that “where a determination made in an administrative pro-
  42
      MEK “argues that the attempt to overthrow the despotic government
of Iran, which itself remains on the State Department’s list of state spon-
sors of terrorism, is not ‘terrorist activity,’ or if it is, that it does not
threaten the security of the United States or its nationals.” People’s
Mojahedin Org. of Iran v. Dep’t of State, 327 F.3d 1238, 1244 (D.C. Cir.
2003).
   43
      United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
   44
      Id. at 837-38.
                     UNITED STATES v. AFSHARI                   14409
ceeding is to play a critical role in the subsequent imposition
of a criminal sanction, there must be some meaningful review
of the administrative proceeding.”45 Nothing in Mendoza-
Lopez appears to require that this review be had by the defen-
dant in the subsequent criminal proceeding.

   [12] Furthermore, it is obvious in Lewis and Mendoza-
Lopez that the opportunity to seek review would be in the
hands of the defendants themselves because it was their rights
at issue in the hearing that created the predicate in the later
criminal proceeding. But here, the defendants’ rights were not
directly violated in the earlier designation proceeding. The
predicate designation was against the MEK, not the defen-
dants. Section 1189 provides for the organizations to seek
review of the predicate designation, and that review was had
in this case. Therefore, due process does not require another
review of the predicate by the court adjudicating the instant
§ 2339B criminal proceeding.

   [13] Our holding is further supported by our decision in
United States v. Bozarov.46 In Bozarov, we held that a defen-
dant charged with exporting items listed under the Export
Administration Act without a license did not have a due pro-
cess right to collaterally attack the listing in his criminal pro-
ceeding.47 We held, however, that Bozarov had standing to
challenge the constitutionality of the Export Act in his crimi-
nal proceeding.48 This was because the Export Act explicitly
provided that all actions taken by the Secretary of Commerce
under it were “not subject to judicial review,” including a
denial of the license that was a predicate for a violation of the
criminal provision.49 If a defendant were not allowed to chal-
  45
     Id. (emphasis in original).
  46
     United States v. Bozarov, 974 F.2d 1037 (9th Cir. 1992).
  47
     Id. at 1045-46.
  48
     Id. at 1040-41.
  49
     Id. at 1039.
14410                 UNITED STATES v. AFSHARI
lenge the Export Act in that proceeding, there would be no
arbiter of the constitutionality of the Export Act. In contrast,
Congress has explicitly provided that the D.C. Circuit is the
arbiter of the constitutionality of any designation under
§ 1189. Thus, there is no constitutional need for the defen-
dants to challenge the predicate designation in this proceed-
ing.

   As we noted in another case where we rejected a defen-
dant’s right to challenge an export listing in a subsequent
criminal proceeding, the defendants’ argument here “is analo-
gous to one by a defendant in a drug possession case that his
conviction cannot stand because no specific showing has been
made that the drug is a threat to society. . . . [A] showing that
the drug possessed by the individual defendant has a ‘detri-
mental effect on the general welfare’ [is not] an element of
the offense.”50 Likewise, the element of the crime that the
prosecutor must prove in a § 2339B case is the predicate fact
that a particular organization was designated at the time the
material support was given, not whether the government made
a correct designation. Our position is consistent with that of
the Fourth Circuit, which held that a defendant’s inability to
challenge the designation was not a violation of his constitu-
tional rights, since the validity of the designation is not an ele-
ment of the crime.51 Rather, the element is the fact of an
organization’s designation as a “foreign terrorist organiza-
tion.”52

III.   First Amendment claim.

   The defendants argue that the MEK is not a terrorist organi-
  50
     United States v. Mandel, 914 F.2d 1215 n.11 (9th Cir. 1990) (quoting
Spawr Optical Research, Inc. v. Baldridge, 649 F. Supp. 1366, 1372 n.10
(D.D.C. 1986)).
  51
     United States v. Hammoud, 381 F.3d 316, 331 (4th Cir. 2004) (en
banc).
  52
     Id.
                      UNITED STATES v. AFSHARI                      14411
zation, and that they have a right under the First Amendment
to contribute money to it. The argument is: (1) they have a
First Amendment right to contribute to organizations that are
not terrorist; (2) the statutory scheme denies them the oppor-
tunity to challenge the “foreign terrorist organization” desig-
nation; so therefore (3) it deprives them of their First
Amendment right to make contributions to non-terrorist orga-
nizations.

   This argument is mistaken because what the defendants
propose to do is not to engage in speech, but rather to provide
material assistance. The statute says “knowingly provides
material support or resources to a foreign terrorist organiza-
tion.”53 The indictment charges them with sending money to
the MEK.

  The defendants argue that they seek to express their politi-
cal views, not by supporting terrorism, but rather by support-
ing an organization that the State Department has mistakenly
designated as terrorist.54 The due process part of this argu-
ment, that they are entitled to an opportunity in their criminal
proceeding to relitigate whether the MEK is terrorist, is
addressed above. Defendants also make a distinct free speech
argument, however, based on McKinney v. Alabama.55

   McKinney holds that the First Amendment rights of a news-
stand proprietor were violated by his conviction under a stat-
ute that prohibited him from selling an obscene magazine.56
What is similar to this case is that the obscenity of the maga-
  53
      18 U.S.C. § 2339B(a)(1).
  54
      This is an odd argument since the MEK itself has admitted that it has
attacked various Iranian government organizations, assassinated several
Iranian officials, and targeted Iranian Supreme Leader Khamenei for
assassination. See People’s Mojahedin Org. of Iran v. Dep’t of State, 327
F.3d 1238, 1243 (D.C. Cir. 2003).
   55
      McKinney v. Alabama, 424 U.S. 669 (1976).
   56
      Id. at 673.
14412                 UNITED STATES v. AFSHARI
zine in McKinney was adjudicated, not in the criminal defen-
dant’s proceeding, but in a previous in rem proceeding against
the magazine to which the newsstand proprietor was not a
party.57 The Court held that a decision in another proceeding
could not conclusively determine First Amendment rights to
sell a magazine of persons who had no notice and opportunity
to be heard in that proceeding.58 By analogy, the defendants
in this case argue that they should be entitled to litigate the
terrorism designation of the MEK in their criminal case.

   The argument fails, however, because the cases are not
analogous. The magazine in McKinney was speech, the
money sent to the MEK is not. Though contributions of
money given to fund speech receive some First Amendment
protection,59 it does not follow that all contributions of money
are entitled to protection as though they were speech.

   [14] What is at issue here is not anything close to pure
speech. It is, rather, material support to foreign organizations
that the United States has deemed, through a process defined
by federal statute and including judicial review by the D.C.
Circuit, a threat to our national security. The fact that the sup-
port takes the form of money does not make the support the
equivalent of speech. In this context, the donation of money
could properly be viewed by the government as more like the
donation of bombs and ammunition than speech.60 The “for-
eign terrorist organization” designation means that the Execu-
tive Branch has determined — and the D.C. Circuit, in
choosing not to set aside the designation, has concluded that
the determination was properly made — that materially sup-
  57
      See id.
  58
      Id. at 674.
   59
      See McConnell v. Fed. Election Comm’n, 540 U.S. 93 (2003); Buckley
v. Valeo, 424 U.S. 1 (1976).
   60
      See Humanitarian Law Project v. Reno, 205 F.3d 1130, 1133 (9th Cir.
2000).
                     UNITED STATES v. AFSHARI             14413
porting the organization is materially supporting actual vio-
lence.
   Donations to designated foreign terrorist organizations are
not akin to donations to domestic political parties or candi-
dates. An organization cannot be designated unless it is for-
eign,61 so domestic associations are immune from the scheme.
And in this case, there is no room for a vagueness challenge
on the ground that the defendants were merely contributing
what might arguably be in the nature of speech.62 The indict-
ment charges them with sending money to the designated ter-
rorist organization, not with providing instruction or
advocacy.
   We have already held that the strict scrutiny standard appli-
cable to speech regulations does not apply to a prohibition
against sending money to foreign terrorist organizations.63
That a group engages in politics and has political goals does
not imply that all support for it is speech, or that it promotes
its political goals by means of speech. Guns and bombs are
not speech. Sometimes money serves as a proxy for speech,
and sometimes it buys goods and services that are not speech.
The government “may certainly regulate contributions to
organizations performing unlawful or harmful activities, even
though such contributions may also express the donor’s feel-
ings about the recipient.”64 There is no First Amendment right
“to facilitate terrorism by giving terrorists the weapons and
explosives with which to carry out their grisly missions.”65
   [15] A less rigorous standard of review is applied to mone-
tary contributions than to pure speech.66 Even giving money
to perfectly legitimate political expression within the United
  61
     8 U.S.C. § 1189(a)(1)(A).
  62
     Cf. Humanitarian Law Project, 205 F.3d at 1137.
  63
     Id. at 1135.
  64
     Id.
  65
     Id. at 1133.
  66
     McConnell, 540 U.S. at 137.
14414                  UNITED STATES v. AFSHARI
States can be, and is, restricted by Congress, and such restric-
tions are consistent with the Constitution.67 A fortiori, contri-
bution of money to foreign organizations that the United
States has determined engage in terrorist activities can be
restricted by Congress.68 It would be anomalous indeed that
Congress could restrict the contribution of money for televi-
sion commercials that say why a candidate would be a good
or bad choice for political office, yet could not prohibit contri-
bution of money to a foreign group that the government deter-
mines engages in terrorist activities. Defendants are entitled
under the First Amendment to publish articles arguing that the
MEK is not really a terrorist organization, but they are not
entitled to furnish bombs to the MEK, nor to furnish money
to buy bombs and ammunition.
   The deference due the Executive Branch in the area of
national security reinforces our conclusion that furnishing
material assistance to foreign terrorist organizations must be
distinguished from the McKinney issue, furnishing obscene
magazines.69
   In McConnell, the Court found that “the prevention of cor-
ruption or its appearance constitutes a sufficiently important
interest to justify political contribution limits.”70 The interest
in protecting our country from foreign terrorist organizations
is a fortiori “a sufficiently important interest.” “[T]he federal
  67
      See id.; Buckley, 424 U.S. at 20 (“[A] limitation upon the amount that
any one person or group may contribute to a candidate or political com-
mittee entails only a marginal restriction upon the contributor’s ability to
engage in free communication.”).
   68
      See Humanitarian Law Project, 205 F.3d at 1133.
   69
      See Regan v. Wald, 468 U.S. 222, 242 (1984) (“Matters relating ‘to
the conduct of foreign relations . . . are so exclusively entrusted to the
political branches of government as to be largely immune from judicial
inquiry or interference.’ ”) (quoting Harisiades v. Shaughnessy, 342 U.S.
580, 589 (1952)); Zemel v. Rusk, 381 U.S. 1 (1965) (rejecting due process
challenge to the Secretary of State’s refusal to validate passports of United
States citizens to travel to Cuba).
   70
      McConnell, 540 U.S. at 143.
                     UNITED STATES v. AFSHARI                 14415
government clearly has the power to enact laws restricting the
dealings of United States citizens with foreign entities.”71
“[W]e must allow the political branches wide latitude in
selecting the means to bring about the desired goal” of “pre-
venting the United States from being used as a base for terror-
ist fundraising.”72
   [16] Conceivably the MEK developed its practices at a time
when the United States supported the previous regime in Iran,
and maintained its position while harbored by the Saddam
Hussein Ba’ath regime in Iraq. Maybe the MEK’s position
will change, or has changed, so that its interest in overturning
the current regime in Iran coincides with the interests of the
United States. Defendants could be right about the MEK. But
that is not for us, or for a jury in defendants’ case, to say. The
sometimes subtle analysis of a foreign organization’s political
program to determine whether it is indeed a terrorist threat to
the United States is particularly within the expertise of the
State Department and the Executive Branch.73 Juries could not
make reliable determinations without extensive foreign policy
education and the disclosure of classified materials. Nor is it
appropriate for a jury in a criminal case to make foreign pol-
icy decisions for the United States. Leaving the determination
of whether a group is a “foreign terrorist organization” to the
Executive Branch, coupled with the procedural protections
and judicial review afforded by the statute, is both a reason-
able and a constitutional way to make such determinations.
The Constitution does not forbid Congress from requiring
individuals, whether they agree with the Executive Branch
determination or not, to refrain from furnishing material assis-
tance to designated terrorist organizations during the period of
designation.
   REVERSED.
  71
     Humanitarian Law Project, 205 F.3d at 1135.
  72
     Id. at 1136.
  73
     See Nat’l Council of Resistance of Iran, 251 F.3d 192.
