                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

HUMANITARIAN LAW PROJECT;                   
RALPH FERTIG; ILANKAI THAMIL
SANGAM; TAMIL WELFARE AND
HUMAN RIGHTS COMMITTEE; WORLD
TAMIL COORDINATING COMMITTEE;
NAGALINGAM JEYALINGAM,
              Plaintiffs-Appellants,
                v.                                   07-55893
UNITED STATES TREASURY                              D.C. No.
                                                 CV-05-08047-ABC
DEPARTMENT; TIMOTHY F.
GEITHNER, Secretary of the                          OPINION
Treasury; ERIC H. HOLDER JR.,
Attorney General; UNITED STATES
DEPARTMENT OF JUSTICE; HILLARY
RODHAM CLINTON, Secretary of
State; UNITED STATES
DEPARTMENT OF STATE,*
             Defendants-Appellees.
                                            




   *Timothy F. Geithner is substituted for John W. Snow as Secretary of
the Treasury, Eric H. Holder is substituted for Alberto R. Gonzales as
Attorney General of the United States, and Hillary Rodham Clinton is sub-
stituted for Condoleeza Rice as Secretary of State. Fed. R. App. P.
43(c)(2).

                                 11621
11622 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
        Appeal from the United States District Court
           for the Central District of California
        Audrey B. Collins, District Judge, Presiding

                 Argued and Submitted
         November 19, 2008—Pasadena, California

                     Filed August 24, 2009

     Before: Harry Pregerson and Pamela Ann Rymer,
 Circuit Judges, and Edward R. Korman,** District Judge.

                  Opinion by Judge Rymer;
                  Dissent by Judge Pregerson




  **The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
11626 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
                             COUNSEL

David Cole, Georgetown University Law Center, Washing-
ton, D.C., for the plaintiffs-appellants.

Joshua Waldman, U.S. Department of Justice, Civil Division,
Washington, D.C.; Douglas N. Letter, U.S. Department of
Justice, Civil Division, Washington, D.C., (argued), for the
defendants-appellees.


                             OPINION

RYMER, Circuit Judge:

   We are asked to invalidate the President’s authority to des-
ignate terrorist organizations when there is an extraordinary
threat to national security, as well as the Secretary of the
Treasury’s authorization to designate further organizations;
and to declare that a ban on providing “services” to, or for the
benefit of, such organizations, is unconstitutionally vague and
overbroad.

   In the wake of September 11, 2001, President George W.
Bush declared a national emergency and, invoking the powers
vested in him by the International Economic Powers Act
(IEEPA), 50 U.S.C. § 1701, et seq., and the United Nations
Participation Act (UNPA), 22 U.S.C. § 287c, signed Execu-
tive Order 13224. The Executive Order blocks property of
twenty-seven designated terrorists, and authorizes the Secre-
tary of the Treasury to designate others whom the Secretary
determines to be acting for, providing support or services to,
or are otherwise associated with, designated persons.

  The Humanitarian Law Project (HLP)1 wants to support
  1
   The Humanitarian Law Project is joined in the action and on appeal by
Ralph Fertig, the Ilankai Thamil Sangam, Dr. Nagalingam Jeyalingam, the
Tamil Welfare and Human Rights Committee, and the World Tamil Coor-
dinating Committee. We will refer to them collectively as the Humanitar-
ian Law Project, or HLP.
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11627
lawful activities of two organizations that are designated as
foreign terrorist organizations — the Kurdistan Worker’s
Party (PKK) in Turkey, and the Liberation Tigers of Tamil
Elam (LTTE) in Sri Lanka. It claims to have been deterred
from doing so out of fear that HLP, too, will be designated as
a terrorist organization pursuant to Executive Order 13224
and its implementing regulations, if HLP provides services of
any sort to the PKK and the LTTE. Consequently, HLP
brought this action to challenge, on First and Fifth Amend-
ment grounds, the President’s authority to designate organiza-
tions as terrorists under IEEPA and UNPA; the Secretary of
the Treasury’s designation authority from the President under
Executive Order 13224; the Executive Order’s ban on provid-
ing services to designated terrorist organizations; and the reg-
ulatory licensing scheme under which organizations may
apply for permission to engage in activities that are otherwise
prohibited.

   The district court held in published opinions that HLP lacks
standing to contest the President’s authority or the licensing
scheme; and rejected its contention that the Secretary’s desig-
nation authority, or the ban on services, is unconstitutionally
infirm. Humanitarian Law Project v. United States Dep’t of
Treasury, 463 F.Supp.2d 1049 (C.D. Cal. 2006); Humanitar-
ian Law Project v. United States Dep’t of Treasury, 484
F.Supp.2d 1099 (C.D. Cal. 2007).

   We agree with the district court that the Humanitarian Law
Project lacks standing to challenge the President’s designation
authority because HLP has never been designated, or threat-
ened with designation, on account of it. We disagree with
HLP’s contention that self-censorship suffices for injury-in-
fact because IEEPA on its face does not regulate speech, but
conduct. Therefore, the standing requirements for pre-
enforcement challenges set out in Thomas v. Anchorage
Equal Rights Commission, 220 F.3d 1134 (9th Cir. 2000),
apply. We conclude that HLP likewise cannot show injury-in-
fact with respect to the licensing regulations as it has never
11628 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
applied for, or been denied, a license. We also agree with the
district court that the Secretary’s authority to designate terror-
ist groups is adequately constrained by criteria in the Execu-
tive Order. Similarly, the ban on “services” to designated
organizations is not unconstitutionally vague; “services” are
clearly enough delineated by examples in the regulations for
a person of ordinary intelligence to understand what kind of
activities are not permitted. HLP worries that protected
speech such as independent advocacy may be caught in the
net, but the Secretary does not interpret the ban this way, nor
do we. Finally, we hold that no mens rea is required for
IEEPA’s civil provisions, and its criminal provisions raise no
constitutional concerns as they include willfulness, or knowl-
edge of unlawfulness, as an element. Accordingly, we affirm.

                                I

   This is not the first time that HLP and the government have
collided over the government’s power to regulate non-terrorist
activities in aid of terrorist organizations. HLP previously
took on the ban against providing material support and
resources to foreign terrorist organizations in the Antiterro-
rism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214, and its 2004 amendment, the
Intelligence Reform and Terrorism Prevention Act (IRTPA),
see 18 U.S.C. § 2339B. That history is recounted in Humani-
tarian Law Project v. Mukasey, 552 F.3d 916, 920-24 (9th
Cir. 2009) (HLP III) (amending opinion filed December 10,
2007). Though involving a different statute with different text,
HLP III and Humanitarian Law Project v. Reno, 205 F.3d
1130 (9th Cir. 2000) (HLP I), inform some of the issues in
this case and both parties draw succor from what we have
held.

   AEDPA made it a crime for anyone knowingly to provide
“material support or resources” to a foreign terrorist organiza-
tion designated by the Secretary of State. 8 U.S.C.
§ 1189(a)(1); 18 U.S.C. § 2339B(a). HLP argued that AEDPA
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11629
imposed guilt by association, and was unconstitutionally
vague and overbroad. We rejected HLP’s right of association
argument in HLP I, holding that the statute prohibited “the act
of giving material support, and there is no constitutional right
to facilitate terrorism by giving terrorists the weapons and
explosives with which to carry out their grisly missions.” HLP
I, 205 F.3d at 1133. We pointed out that advocacy is different
from donations of material support, expressive conduct is dif-
ferent from pure speech, and “money is fungible; giving sup-
port intended to aid an organization’s peaceful activities frees
up resources that can be used for terrorist acts.” Id. at 1136.
We also noted that AEDPA did not regulate speech or associ-
ation per se, and rejected HLP’s argument that the Secretary
of State had unfettered discretion to designate a group as a
foreign terrorist organization. Id. at 1136-37. We held that the
Secretary’s authority to designate only those groups that
engage in terrorist activities sufficiently cabined his discre-
tion. However, we agreed with HLP that two components of
“material support” — “training” and “personnel” — were
unconstitutionally vague because uncertainty about what was
meant could blur the line between protected expression and
unprotected conduct. Id. at 1137-38.

   After HLP I (on interlocutory appeal) and before HLP III
(on appeal from summary judgment), Congress amended the
definition of “material support or resources” to include,
among other things, an additional prohibition against provid-
ing “service” to a designated foreign terrorist organization.
HLP III, 552 F.3d at 923. Responding to HLP’s due process
argument, we declined to read a specific intent requirement
into the revised statute, as it already required knowledge that
the organization to which material support was offered was a
designated foreign terrorist organization. Id. at 926. However,
we held that prohibitions on providing “training,” “expert
advice or assistance,” “service” and “personnel” to designated
organizations were unconstitutionally vague because these
terms could be read as encompassing speech and advocacy
protected by the First Amendment. Id. at 928-30. We declined
11630 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
to hold that AEDPA’s ban against providing “material support
or resources” was overbroad, as it was not aimed at expres-
sive conduct but rather, as we said in HLP I, “at stopping aid
to terrorist groups.” Id. at 931-32 (quoting HLP I, 205 F.3d
at 1135).

   IEEPA, which was enacted in 1977, was not at issue in the
earlier litigation. It vests the President with authority to deal
with any “unusual and extraordinary threat” to the national
security whose source in whole or substantial part is outside
of the United States, if the President declares a national emer-
gency. 50 U.S.C. § 1701(a).2 IEEPA mandates that the Presi-
dent must consult Congress “in every possible instance”
before exercising his authority, id. § 1703(a), and the Presi-
dent’s actions are to be reviewed periodically by Congress, id.
§ 1622(b). When such a national emergency is declared,
IEEPA provides that the President may issue regulations to
“block” any transaction “with respect to . . . any property in
which any foreign country or a national thereof has any inter-
est[.]” Id. § 1702(a)(1)(B). However, the President’s authority
does not extend to regulating or prohibiting donations of food,
  2
   IEEPA was enacted in 1977 to amend the Trading With the Enemy
Act, which, in turn, was enacted in 1917 and amended in 1933. 50 U.S.C.
app. § 5(b). IEEPA authorizes the President to declare a national emer-
gency “to deal with any unusual and extraordinary threat, which has its
source in whole or substantial part outside the United States, to the
national security, foreign policy, or economy of the United States.” 50
U.S.C. § 1701(a). Under this authority, the President may:
      [I]nvestigate, block during the pendency of an investigation, reg-
      ulate, direct and compel, nullify, void, prevent or prohibit, any
      acquisition, holding, withholding, use, transfer, withdrawal,
      transportation, importation or exportation of, or dealing in, or
      exercising any right, power, or privilege with respect to, or trans-
      actions involving, any property in which any foreign country or
      a national thereof has any interest by any person, or with respect
      to any property, subject to the jurisdiction of the United States
      ....
50 U.S.C. § 1702(a)(1)(B).
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11631
clothing, and medicine, intended to be used to relieve human
suffering, unless the President determines that such donations
would “seriously impair his ability to deal with any national
emergency.” Id. § 1702(b)(2). Section 1704 provides that
“[t]he President may issue such regulations, including regula-
tions prescribing definitions, as may be necessary for the
exercise of the authorities granted . . . .” Id. § 1704. The Act
provides for a civil penalty ($250,000, or twice the amount of
the culpable transaction), id. § 1705(b), and a criminal penalty
for willful violations (a fine of not more than $1,000,000 or
imprisonment for not more than 20 years, or both), id.
§ 1705(c).

   On September 23, 2001, President George W. Bush
invoked his authority under the Constitution, IEEPA, and
UNPA, and found that the “grave acts of terrorism and threats
of terrorism committed by foreign terrorists, including the ter-
rorist attacks in New York, Pennsylvania, and the Pentagon
committed on September 11, 2001,” and the continuing and
immediate threat of further attacks on the United States, con-
stitute “an unusual and extraordinary threat to the national
security.” Exec. Order No. 13224, 66 Fed. Reg. 49079 (Sept.
23, 2001); see also Proclamation No. 7463, 66 Fed. Reg.
48199 (Sept. 14, 2001) (declaring national emergency). The
Executive Order blocked all property and interests that are in
the United States of foreign persons listed in an annex
attached to it, of persons determined by the Secretary of the
Treasury to act for or on behalf of those persons listed, and
of persons determined by the Secretary “to assist in, sponsor,
or provide financial, material, technological support for, or
financial or other services to or in support of, such acts of ter-
rorism or those persons listed” or “to be otherwise associated”
with those persons. Exec. Order No. 13224 § 1(a), (c), (d)(i)-
(ii). In addition, the Executive Order prohibited any transac-
tion in blocked property, including provision of “services to
or for the benefit of those persons listed.” Id. § 2(a). The Pres-
ident found that making any donations of the type specified
would seriously impair his ability to deal with the national
11632 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
emergency declared in the order. Id. § 4. Finally, the President
authorized the Secretary of the Treasury “to take such actions,
including the promulgation of rules and regulations, and to
employ all powers granted to the President by IEEPA and
UNPA as may be necessary to carry out the purposes of this
order.” Id. § 7. The President listed twenty-seven individuals
and groups in the annex, 66 Fed. Reg. at 49083, and later
amended it to include the Taliban and its leader, Mohammed
Omar. See Exec. Order No. 13268, 67 Fed. Reg. 44751 (July
2, 2002).

   By regulation, any person or group whose property is
blocked by reason of the Executive Order is known as a “spe-
cially designated global terrorist,” or SDGT. 31 C.F.R.
§ 594.310. Treasury regulations give examples of “services”
that are forbidden, 31 C.F.R. § 594.406(b),3 and define the
term “to be otherwise associated with,” 31 C.F.R. § 594.316.4
Other regulations provide that a person or group that is desig-
nated as an SDGT may seek administrative reconsideration,
31 C.F.R. § 594.201(a) n.3, available at 72 Fed. Reg. 4206
(Jan. 30, 2007); 31 C.F.R. § 501.807, and allow the Depart-
ment to grant licenses on a case-by-case basis to permit trans-
actions that would otherwise be prohibited under the
Executive Order, 31 C.F.R. §§ 594.501, 501.801-02.
  3
     The regulation states: “U.S. persons may not, except as authorized by
or pursuant to this part, provide legal, accounting, financial, brokering,
freight forwarding, transportation, public relations, educational, or other
services to a person whose property or interests in property are blocked
pursuant to § 594.201(a).” 31 C.F.R. § 594.406(b). Section 594.201(a) is
the foundational regulation that basically tracks the blocking provisions of
the Executive Order.
   4
     Section 594.316 provides:
      The term “to be otherwise associated with,” as used in
      § 594.201(a)(4)(ii), means:
         (a) To own or control; or
         (b) To attempt, or to conspire with one or more persons, to
         act for or on behalf of or to provide financial, material, or
         technological support, or financial or other services to.
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11633
    PKK and the LTTE are designated SDGTs.5 HLP wishes to
support the non-violent activities of these groups by providing
money, humanitarian aid, engineering and technological sup-
port, as well as psychological counseling in areas of Sri Lanka
affected by the tsunami, training in human rights alternatives,
assistance with peacemaking negotiations, legal help, and
assistance in appearing before international lawmaking
bodies. HLP asserts that it has been inhibited from doing so
by Executive Order 13324 and the regulations implementing
it. This action attacks provisions in both.

   The parties brought cross-motions for summary judgment.
The district court ultimately dismissed HLP’s challenge to the
President’s designation authority and to the regulatory licenc-
ing scheme for failure to establish injury-in-fact. The court
initially found that the “otherwise associated with” provision
in the Executive Order was unconstitutionally vague on its
face and overbroad, 463 F.Supp.2d at 1070-71, but reconsid-
ered that ruling and changed it after § 594.316, which cured
the defects, was issued in the meantime. 484 F.Supp.2d at
1104-07. The court denied HLP’s motion, and granted judg-
ment in the government’s favor on HLP’s remaining claims.

   HLP has timely appealed.

                                     II

   HLP maintains that it has standing to challenge the Presi-
dent’s designation authority under IEEPA because it credibly
fears that if it engages in any activities that might be deemed
to benefit or be associated with the PKK or the LTTE, it risks
  5
   They were so designated by the Secretary of State after he determined
that both met the criteria in § 1(b) of Executive Order 13224. 67 Fed. Reg.
12633, 12633-34 (Office of the Coordinator For Counterterrorism, Dep’t
of State, March 19, 2002). The Secretary of State acted pursuant to an
essentially parallel scheme under which the assets of foreign terrorist orga-
nizations are blocked and U.S. persons are prohibited from rendering them
material support. See 8 U.S.C. § 1189; 18 U.S.C. § 2339B.
11634 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
being designated itself.6 In HLP’s view, First Amendment
standing doctrine as articulated in California Pro-Life Council
v. Getman, 328 F.3d 1088, 1095 (9th Cir. 2003), controls.
Regardless, HLP submits, it may pursue a facial vagueness
challenge as IEEPA grants sweeping discretion to the Presi-
dent that allows him to censor, or shut down, disfavored polit-
ical groups.

   [1] Any pre-enforcement analysis starts with our en banc
decision in Thomas. There, landlords sought to strike down an
Alaska housing discrimination law on First Amendment reli-
gion and free speech grounds. 220 F.3d at 1138. However, no
prospective tenant had ever complained to the landlords, or
filed a complaint against them. Id. at 1137. The state had
never investigated rental practices, or enforced the law crimi-
nally; it had only sought to enforce the law civilly twice, and
even then, only once was the issue of freedom of religion
raised. Id. at 1137, 1140-41. Enforcement was neither threat-
ened nor imminent. We considered three factors in evaluating
the genuineness of the claimed threat of prosecution:
“whether the plaintiffs have articulated a ‘concrete plan’ to
violate the law in question, whether the prosecuting authori-
ties have communicated a specific warning or threat to initiate
proceedings, and the history of past prosecution or enforce-
ment under the challenged statute.” Id. at 1139 (citing San
Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121,
1126-27 (9th Cir. 1996)). Applying these factors, we con-
cluded that the dispute was hypothetical and the landlords’
injury was speculative. See also Sacks v. Office of Foreign
Assets Control, 466 F.3d 764, 773 (9th Cir. 2006) (dismissing
challenge to travel restrictions issued under IEEPA because
the plaintiff had failed to establish “a specific warning or
threat to initiate proceedings” under the Thomas factors).
  6
    HLP’s suggestion that the district court improperly considered the Sec-
retary’s standing arguments on a motion for reconsideration fails, as all
courts have a continuing obligation to assess jurisdiction.
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11635
   [2] The Thomas factors lead to the same conclusion, here.
HLP has never been designated as an SDGT. Nor does it point
to any specific warning or threat of being designated. There
is no evidence that HLP is similar to the organizations or indi-
viduals who have been designated by the President, or that it
engages in conduct similar to those organizations. The Presi-
dent designated twenty-seven groups and individuals just after
September 11, and added two more in July 2002, but no fur-
ther designations have been made in the years since. In these
circumstances, we cannot say that the threat of designation is
“credible,” instead of “imaginary or speculative.” Thomas,
220 F.3d at 1140 (quoting Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979)).

   While Thomas leaves the door open to pre-enforcement
challenges to laws that allegedly infringe upon constitutional
rights, id. at 1137 n.1, and we walked through it in California
Pro-Life Council, this is not a California Pro-Life Council
case. The Council was a non-profit corporation that took posi-
tions on California ballot propositions. 328 F.3d at 1091. The
California Political Reform Act imposed burdensome cam-
paign reporting and disclosure obligations for “independent
expenditures.” Id. at 1092. It was aimed directly at the Coun-
cil’s speech, whose proposed communication for the coming
election was arguably an “independent expenditure” subject
to the Act’s reporting and disclosure requirements. Id. at
1093. In these circumstances, we concluded that the Council
had suffered a constitutionally sufficient injury of self-
censorship that gave it standing to pursue a vagueness chal-
lenge. Id. at 1094-95.

  [3] Unlike the California Political Reform Act, which was
aimed directly at core political speech, IEEPA is not aimed at
expression. See Cal. Pro-Life Council, 328 F.3d at 1095 (cit-
ing Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392
(1988)). Nothing on the face of IEEPA implicates First
Amendment rights.7 It simply allows the President, during
  7
  See HLP I, 205 F.3d at 1133-34 (observing that there is no First
Amendment right nor any other constitutional right to support terrorists);
11636 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
peacetime national emergencies, to block transactions “with
respect to . . . any property in which any foreign country or
a national thereof has any interest.” 50 U.S.C. § 1702(a)(1)(B).8
Further by contrast to California Pro-Life Council, to the
extent HLP has any injury as a result of IEEPA, it is indirect.
That is, because IEEPA is not directly aimed at HLP’s expres-
sion, injury-in-fact does not come from IEEPA or from
IEEPA’s designation authority to the President, but from the
President’s designation authority to the Secretary. There is no
suggestion that HLP lacks standing to pursue this designation;
indeed, the district court and we address its concerns with the
Secretary’s authority on the merits. But neither self-
censorship nor subjective chill is the functional equivalent of
a well-founded fear of enforcement when the statute on its
face does not regulate expressive activity.

Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 736-37 (D.C. Cir.
2007) (holding that blocking order does not violate the First Amendment);
Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C.
Cir. 2003) (rejecting First Amendment challenge to IEEPA blocking
order).
  8
    Nor is the UNPA, under which the President also acted, aimed at
HLP’s speech. That Act simply authorizes the President to implement
U.N. Security Council measures by taking certain actions, including pro-
hibiting economic relations between any foreign country or national and
persons subject to United States jurisdiction. See 22 U.S.C. § 287c. The
statute provides:
      [W]henever the United States is called upon by the [United
      Nations] Security Council to apply measures which said Council
      has decided . . . the President may, . . . under such orders, rules,
      and regulations as may be prescribed by him, . . . prohibit, in
      whole or in part, economic relations . . . between any foreign
      country or any national thereof or any person therein and the
      United States or any person subject to the jurisdiction thereof, or
      involving any property subject to the jurisdiction of the United
      States.
22 U.S.C. § 287c(a).
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11637
   HLP says this isn’t always so, pointing to Steffel v. Thomp-
son, 415 U.S. 452 (1974), and Nunez v. City of San Diego,
114 F.3d 935 (9th Cir. 1997). We see no support for HLP’s
position in either case. In Steffel, there were specific warn-
ings, threats of enforcement, and prosecution of the plain-
tiff ’s handbilling companion under a local trespass ordinance
before suit was brought. 415 U.S. at 459. This was more than
mere chilling effect. Id. at 476 (Stewart, J., concurring) (not-
ing that the petitioner “succeeded in objectively showing that
the threat of imminent arrest, corroborated by the actual arrest
of his companion . . . demonstrated a genuine threat of
enforcement” of a disputed statute and created an actual con-
crete controversy with the state) (internal quotations omitted).
In Nunez, the curfew ordinance on its face was “directed nar-
rowly and specifically at expression or conduct [access to
public forums] commonly associated with expression.”
Nunez, 114 F.3d at 950 (internal quotation and citation omitted).9
This is not true of IEEPA.

   Even if the statute must facially cover speech or closely
related conduct for its challenge to go forward, HLP submits
that IEEPA nevertheless qualifies because it grants unbridled
discretion to the President to discriminate against disfavored
organizations. For this, HLP relies on City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750 (1988). City of
  9
    American-Arab Anti-Discrimination Comm. v. Thornburgh, 970 F.2d
501 (9th Cir. 1991), which HLP also mentions, is not to the contrary.
There, we found plaintiffs who sought to invalidate parts of the McCarran-
Walter Act met the standing test even though they were not currently sub-
ject to the challenged provisions and had not actually committed the for-
bidden acts. We thought their claimed threat of future injury was not
merely hypothetical or conjectural as they had already been charged with
violating the challenged provisions; while the charges were dropped, they
were dropped for tactical reasons not because they were thought inapplica-
ble. 970 F.2d at 508. After so holding, we noted that even if the plaintiffs
had not already been charged, the statute is regulatory and proscriptive,
they fell within the class of persons whose conduct the statute proscribes,
and the government had instituted proceedings under it. Id.
11638 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
Lakewood involved a challenge to an ordinance conferring
significant discretion on city officials to approve design and
placement of news racks. Id. at 753. Thus, the ordinance
expressly covered speech activities, and could be challenged
facially; as the Court explained, this made it different from
grants of standardless discretion covering other activities,
which must be challenged as-applied. Id. at 756 n.6. Just as
with AEDPA, at issue in HLP I, IEEPA “does not regulate
speech or association per se.” 205 F.3d at 1136-37. Hence, the
standardless discretion cases, typified by City of Lakewood,
do not apply.

   Finally, HLP suggested at argument that we should not find
a standing problem in this case as the court saw none in HLP
I or HLP III. This is not persuasive, however, for the law at
issue in HLP I and III was AEDPA, which itself banned mate-
rial support to terrorists, and established the Secretary’s abil-
ity to designate terrorists pursuant to it. There is no
comparable provision in IEEPA.

   [4] In sum, we agree with the district court’s analysis.
IEEPA does not on its face implicate First Amendment rights.
The harm of self-censorship is not present here. HLP has not
been designated, nor threatened with imminent prosecution or
designation. For these reasons, we conclude that HLP cannot
establish injury-in-fact, and lacks standing to challenge the
President’s designation authority.

                               III

  HLP argues that the Executive Order unconstitutionally
gives the Secretary discretion to penalize and shut down indi-
viduals and groups on the basis of constitutionally protected
activities, without any type of scienter, and leaves uncertain
what it can do in conjunction with, or on behalf of, the LTTE
and PKK.
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11639
                               A

   HLP makes the overarching submission that the Secretary’s
authority to designate groups that have never engaged in ter-
rorist activity is unconstitutionally vague and overbroad. It
also argues that the Secretary’s designation authority under
the Executive Order falls short of the conditions under
AEDPA that we approved in HLP I. Specifically, HLP posits
that under the Executive Order, the Secretary may designate
domestic individuals, not just foreign entities as is the case
under AEDPA. Further, in its view, the Executive Order
authorizes designation of persons and organizations without
any finding that they engaged in terrorism, whereas AEDPA
requires the Secretary to have reasonable grounds to believe
that an organization has engaged in terrorist acts. HLP also
faults the breadth of the Secretary’s designation authority in
that a group can be designated under the Executive Order for
activity that is steps removed from any terrorist activity, for
example, by attempting to assist someone else who has been
designated merely for providing assistance to a terrorist
group. Finally, it asserts that the Secretary may designate
without a statement of reasons, charges, or an administrative
decision justifying the designation.

   [5] The short answer is that HLP I does not purport to set
a floor for the constitutionality of designation authority; we
merely found sufficient what AEDPA required. Beyond this,
the Executive Order does constrain the exercise of discretion.
It requires the Secretary to find that the person or organization
is “owned or controlled by,” or “act[s] for or on behalf of,”
SDGTs, or else “provide[s] financial, material, or technologi-
cal support for, or financial or other services to or in support
of,” acts of terrorism or acts of SDGTs, or is “otherwise asso-
ciated with” SDGTs. Exec. Order 13224, § 1(c)-(d). These are
sufficient checks on the Secretary’s discretion to allay consti-
tutional concerns. They are reasonable in light of the fact that
the Executive Order is a conduct regulation, not a speech
restriction. As we explained in HLP I, there is no “right to
11640 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
provide resources with which terrorists can buy weapons and
explosives.” 205 F.3d at 1133. The restrictions in the Execu-
tive Order are aimed at stopping aid to terrorists. Therefore,
the order “serves purposes unrelated to the content of the
expression.” Id. at 1135 (internal citation and quotation omit-
ted). Moreover, the Secretary’s designations are subject to
reconsideration, after which a written decision must be fur-
nished, 31 C.F.R. § 501.807(d), and are subject to judicial
review, see, e.g., Islamic Am. Relief Agency v. Gonzales, 477
F.3d 728 (D.C. Cir. 2007); Holy Land Found. for Relief &
Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003). Thus, the
Secretary’s designation authority is not unconstitutionally
vague.

   [6] Nor is the designation authority unconstitutionally over-
broad. To prevail on a facial overbreadth challenge to a law
aimed at regulating conduct, HLP must show that the Execu-
tive Order “punishes a ‘substantial’ amount of protected free
speech, ‘judged in relation to the statute’s plainly legitimate
sweep.’ ” Virginia v. Hicks, 539 U.S. 113, 118-19 (2003)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
HLP does not suggest how designation of U.S. groups or indi-
viduals under the Executive Order can be unconstitutional if
the groups or individuals are aiding or supporting terrorists.
By the same token, there is no reason to think that an “infinite
regression of designations,” as HLP puts it, implicates due
process if each designation is in turn based on impermissible
dealings with an SDGT.

                                    B

  [7] HLP mounts facial and as-applied challenges to the ban
imposed by the Executive Order on “services.”10 Section
  10
    At oral argument HLP suggested that it had also challenged the ban
on “material support” to SDGTs in § 1(d)(i) of the Executive Order. How-
ever, we see no reference to this provision in the complaint or briefs. As
the issue is not properly before us, we express no opinion on it.
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11641
1(d)(i) of the Executive Order permits the Secretary to desig-
nate individuals and entities who “provide . . . financial or
other services to or in support of” acts of terrorism and
SDGTs. And § 2(a) prohibits transactions by U.S. persons or
within the United States, “including but not limited to . . . ser-
vices to or for the benefit of” an SDGT.

                                       i

   “A statute must be sufficiently clear so as to allow persons
of ‘ordinary intelligence a reasonable opportunity to know
what is prohibited.’ ” Foti v. City of Menlo Park, 146 F.3d
629, 638 (9th Cir. 1998) (quoting Grayned v. City of Rock-
ford, 408 U.S. 104, 108 (1972)). Statutes that are insuffi-
ciently clear are void for three reasons: “(1) to avoid
punishing people for behavior that they could not have known
was illegal; (2) to avoid subjective enforcement of the laws
based on ‘arbitrary and discriminatory enforcement’ by gov-
ernment officers; and (3) to avoid any chilling effect on the
exercise of First Amendment freedoms.” Id.

   The parties dispute whether the First Amendment or non-
First Amendment test for facial vagueness applies. When a
statute “clearly implicates free speech rights,” it will survive
a facial challenge so long as “it is clear what the statute pro-
scribes ‘in the vast majority of its intended applications.’ ”
Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1149, 1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530
U.S. 703, 733 (2000)). Outside the First Amendment context,
a plaintiff alleging facial vagueness must show that “the
enactment is impermissibly vague in all its applications.”

   We also note that even though HLP did contest the ban on being “other-
wise associated with” an SDGT in the district court, it does not seriously
press that issue on appeal. (It alludes to it in a footnote.) To the extent pur-
sued, we would in any event affirm for reasons stated by the district court
in its order granting reconsideration. 484 F.Supp.2d at 1104-07.
11642 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d
959, 972 (9th Cir. 2003) (quoting Village of Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).
It is unnecessary to resolve the dispute, however, because
HLP still cannot succeed even assuming that the more relaxed
standard applies.

   HLP maintains that the “services” ban at issue here is even
more vague than the AEDPA ban on “service” that was
deemed unconstitutional in HLP III for two reasons: While
AEDPA applies only to services provided “to” a designated
entity, Executive Order 13224 and its implementing regula-
tions also prohibit any services done “for the benefit of” a
designated entity. In addition, while AEDPA punishes “ser-
vice” exclusively through the criminal process, the Executive
Order and the regulations impose the sanction of closure
through a closed administrative process.

   [8] The “services” ban in the regulations implementing the
Executive Order is different from the “service” ban we invali-
dated in HLP III. The AEDPA ban was unexplicated and con-
tained terms that were themselves vague — “expert advice
and assistance,” and “training.” In those circumstances, it was
easy for us “to imagine protected expression that falls within
the bounds of the term ‘service.’ ” HLP III, 552 F.3d at 930
(internal quotation marks and citation to district court opinion
omitted). Here, by contrast, the regulations clarify the term
“services” by offering examples of what is contemplated. 31
C.F.R. § 594.406(b) (citing “legal, accounting, financial, bro-
kering, freight forwarding, transportation, public relations,
educational, or other services”). The examples take out the
guesswork that troubled us in HLP III. They make clear that
legal and educational services are prohibited. They also indi-
cate that one should not perform a useful professional or busi-
ness task for a terrorist organization. For these reasons, even
if the term “services” standing alone would be ambiguous,11
  11
     But see United States v. Homa Int’l Trading Corp., 387 F.3d 144, 146
(2d Cir. 2004) (concluding that the term “services” in a Treasury Depart-
ment regulation issued under IEEPA and Executive Order 12959 is unam-
biguous).
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11643
the examples alert a person of ordinary intelligence to the ser-
vices that should not be provided to or for the benefit of
SDGTs. In these circumstances, it is clear what the term “ser-
vices” proscribes in the vast majority of intended applications.12

   HLP is concerned that the term could ensnare independent
advocacy undertaken for the benefit of the PKK and LTTE.
It would undoubtedly offend the First Amendment if the regu-
lations were to prohibit independent advocacy. However, they
don’t. And we see no basis for supposing that they might.

   The Secretary has explicitly recognized that the “designa-
tion criteria [under the Executive Order] will be applied in a
manner consistent with pertinent Federal law, including,
where applicable, the First Amendment to the United States
Constitution.” 72 Fed. Reg. 4206 (January 30, 2007). This
reflects the Treasury Department’s intent to interpret its own
regulations, including the ban on “services,” to exclude inde-
pendent advocacy because independent advocacy is always
protected under the First Amendment. HLP I, 205 F.3d at
1134. HLP points to no instance in the years since the Execu-
tive Order has been in force where the Secretary has desig-
nated an organization or individual for engaging in
independent advocacy or whose “overwhelming function was
political advocacy.” Id. Similarly, it points to no instance
where any person engaged in independent advocacy has been
subject to civil or criminal penalties under IEEPA for engag-
ing in such conduct. The government’s position is that the
term “services” in Executive Order 13224 does not reach
independent advocacy. Both because the ban cannot extend to
independent advocacy, and because of the government’s rep-
  12
     We note that HLP does not bring a direct First Amendment challenge
to the Executive Order — a challenge that would require HLP to address
this court’s holding in HLP I that AEDPA’s ban on “material support” was
constitutional, 205 F.3d at 1133-36. Thus, in addressing HLP’s vagueness
challenge, we necessarily limit our focus to assessing whether it is clear
what is prohibited by the term “services” in the Executive Order, and find
the term as defined by 31 C.F.R. § 594.406 to be sufficiently clear.
11644 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
resentation that it does not, we decline to void the order on
this ground.

   HLP also contends that it is unclear whether the ban on
“services” covers activities such as teaching human rights
advocacy, writing a human rights report, or engaging in pub-
lic relations advocacy. However, we see no unconstitutional
guesswork; as the district court observed, in the vast majority
of cases a given individual can distinguish performing a ser-
vice to an SDGT from independent activity. HLP v. U.S.
Dept. of Treasury, 463 F.Supp.2d at 1063. Should uncertainty
lurk that is not purely hypothetical, however, administrative
vehicles are available for clarification.13

   [9] “Condemned to the use of words, we can never expect
mathematical certainty from our language.” Grayned, 408
U.S. at 110. But it is clear what the Executive Order pro-
scribes “in the vast majority of its intended applications.” This
being so, HLP’s facial challenge fails.

                                     ii

   [10] The ban on “services” is not unconstitutionally vague
as-applied to HLP’s intended activities, either. The heart of
HLP’s position is that activities in which it proposes to
engage for the benefit of the PKK and LTTE are not linked
to the carrying out of terrorist activity. However, this is not
so much a quarrel over vagueness, as it is about substance. As
the district court explained, the proposed activities clearly
constitute prohibited services, and for this reason an as-
applied challenge for vagueness does not lie. HLP v. U.S.
  13
    Individuals or institutions in doubt about the propriety of proposed
activities may call the Department of Treasury’s compliance hotline; e-
mail the Treasury’s e-hotline mailbox; call Treasury’s licensing division,
or apply for a license; and consult an attorney in the Chief Counsel’s
Office, or submit a request for a written interpretation of whether the pro-
posed activity would constitute a violation.
         HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11645
Dept. of Treasury, 463 F.Supp.2d at 1058-60; accord Alaska
Right to Life Comm. v. Miles, 441 F.3d 773, 784 (9th Cir.
2006); Gospel Missions of Am. v. City of Los Angeles, 419
F.3d 1042, 1048-49 (9th Cir. 2005); see Parker v. Levy, 417
U.S. 733, 756 (1974) (holding that “[o]ne to whose conduct
a statute clearly applies may not successfully challenge it for
vagueness”).

                                       iii

   [11] Alternatively, HLP posits that the Executive Order’s
ban on “services” is broader than AEDPA’s ban on “service”
— which we invalidated in HLP III on the footing that it
could be read to reach protected speech — because the Execu-
tive Order bans all protected speech. However, the ban in the
Executive Order is channeled by 31 C.F.R. § 594.406(b). So
understood, the ban on “services” is like the material support
ban in AEDPA that we held was not overbroad. Neither is
“specifically addressed to speech or to conduct necessarily
associated with speech,” and “[r]arely, if ever, will an over-
breadth challenge succeed” in these circumstances. Hicks, 539
U.S. at 124; HLP III, 552 F.3d at 931 (quoting Hicks). The
ban imposed by Executive Order 13224, like the material sup-
port ban in AEDPA, is not aimed at the expressive component
of HLP’s conduct but at stopping aid to terrorist groups. It has
obvious, legitimate applications. Providing legal, financial,
accounting, educational, business, and like services to desig-
nated terrorist groups saves them money, which in turn
increases the means at their disposal for terrorist acts.14 Inhib-
  14
    As the Seventh Circuit recently explained:
       If you provide material support to a terrorist organization, you are
       engaged in terrorist activity even if your support is confined to
       the nonterrorist activities of the organization. Organizations that
       the statute, and indeed in this instance common parlance,
       describes as terrorist organizations, such as Hamas in Gaza and
       Hezbollah in Lebanon, often operate on two tracks: a violent one
       and a peaceful one (electioneering, charity, provision of social
11646 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
iting this provision of services is for this reason a legitimate
government regulation of constitutionally unprotected con-
duct. That some particular instances of protected speech may
fall within the Executive Order does not make those instances
substantial when compared to its legitimate scope. HLP III,
552 F.3d at 932. In sum, as the Executive Order is not aimed
at speech and does not cover a substantial amount of it, the
ban on “services” to SDGTs is not facially overbroad.

                                     C

   HLP faults IEEPA for imposing the penalties of designa-
tion, civil fines, and criminal sanctions without sufficient
mens rea.15 It claims that designation and civil penalties,

    services). If you give money (or raise money to be given) for the
    teaching of arithmetic to children in an elementary school run by
    Hamas, you are providing material support to a terrorist organiza-
    tion even though you are not providing direct support to any ter-
    rorist acts.
Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008).
  15
     IEEPA’s penalties section, 50 U.S.C. § 1705, provides:
    (a) Unlawful acts. It shall be unlawful for a person to violate,
    attempt to violate, conspire to violate, or cause a violation of any
    license, order, regulation, or prohibition issued under this chapter.
    (b) Civil penalty. A civil penalty may be imposed on any person
    who commits an unlawful act described in subsection (a) of this
    section in an amount not to exceed the greater of—
        (1) $250,000; or
        (2) an amount that is twice the amount of the transaction that
        is the basis of the violation with respect to which the penalty
        is imposed.
    (c) Criminal penalty. A person who willfully commits, willfully
    attempts to commit, or willfully conspires to commit, or aids or
    abets in the commission of, an unlawful act described in subsec-
    tion (a) of this section shall, upon conviction, be fined not more
    than $1,000,000, or if a natural person, may be imprisoned for
    not more than 20 years, or both.
        HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11647
which in HLP’s view are “quasi-criminal,” run afoul of the
First and Fifth Amendments because they do not require
knowledge that the recipient of forbidden support is desig-
nated. And it maintains that both civil and criminal penalties
must require specific intent.

                                      i

   We determine whether civil penalties are so severe that
they should carry the same due process guarantees as criminal
offenses by following the guideposts set out in Hudson v.
United States, 522 U.S. 93 (1997). See, e.g., Reiserer v.
United States, 479 F.3d 1160 (9th Cir. 2007) (applying the
Hudson test to determine whether IRS penalties were criminal
penalties that abated with death of the party).16 Thus, we “first
ask whether the legislature, in ‘establishing the penalizing
mechanism, indicated either expressly or impliedly a prefer-
ence for one label or the other.’ ” Id. at 1163 (quoting
Hudson, 522 U.S. at 99). “ ‘Even in those cases where the leg-
islature has indicated an intention to establish a civil penal-
ty,’ ” we “ ‘inquire[ ] further whether the statutory scheme
was so punitive either in purpose or effect, as to transform
what was clearly intended as a civil remedy into a criminal
penalty.’ ” Id. (quoting Hudson, 522 U.S. at 99). In making
that determination, we consider

       (1) whether the sanction involves an affirmative dis-
       ability or restraint; (2) whether it has historically
       been regarded as a punishment; (3) whether it comes
  16
     This court has used the Hudson test to determine whether a penalty is
criminal or civil in a variety of circumstances. See Noriega-Perez v.
United States, 179 F.3d 1166, 1171-74 & n.3 (9th Cir. 1999) (applying
Hudson test to determine whether immigration statute was civil or crimi-
nal as relevant to appellant’s claim that statute violated separation of pow-
ers); see also, Louis v. C.I.R., 170 F.3d 1232, 1234-36 (9th Cir. 1999) (per
curiam) (applying Hudson test and holding that defendant’s challenges to
tax assessments alleging Fifth and Sixth Amendment violations failed
because the assessments “[were] civil, not criminal, in nature”).
11648 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
    into play only on a finding of scienter; (4) whether
    its operation will promote the traditional aims of
    punishment — retribution and deterrence; (5)
    whether the behavior to which it applies is already a
    crime; (6) whether an alternative purpose to which it
    may be rationally connected may be assignable for
    it; and (7) whether it appears excessive in relation to
    the alternative purpose assigned.

Id. (quoting Hudson, 522 U.S. at 99-100).

   [12] Congress clearly intended the civil penalties under
IEEPA to be civil, not criminal. It said so in so many words,
describing a “civil penalty” in § 1705(b), and distinguishing
a “civil penalty” from a “criminal penalty” that is separately
provided for in § 1705(c). See Hudson, 522 U.S. at 103 (con-
cluding that “it [was] evident that Congress intended the
[challenged penalties] to be civil in nature” where statutes
“expressly provide[d] that such penalties are ‘civil.’ ”). The
nature of the penalty — $250,000 or double the amount of the
transaction — is also civil, rather than criminal, in nature.
Correspondingly, it is evident that the President meant for
designation to be civil as he conferred authority to make fur-
ther designations on the Treasury Department. Id. (stating that
Congressional delegation of authority upon an administrative
agency made the sanction a civil penalty).

   [13] The Hudson factors do not indicate that the civil penal-
ties are really criminal. IEEPA’s civil penalties are monetary,
with no other “affirmative disability or restraint.” Reiserer,
479 F.3d at 1163 (quoting Hudson, 522 U.S. at 104). Such
monetary penalties have not “historically been regarded as
punishment.” Id. (citation omitted). Designation carries more
than monetary bite for U.S. entities, but exceptions are avail-
able on a case-by-case basis. Neither the civil penalty provi-
sion nor designation has a mens rea requirement, weighing
against finding that these are criminal penalties. While civil
fines and designation have a deterrent effect, “ ‘the mere pres-
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11649
ence of this purpose is insufficient to render a sanction crimi-
nal.’ ” Id. at 1164 (quoting Hudson, 522 U.S. at 102). Finally,
the same conduct may be punished both civilly and crimi-
nally, but this alone does not render all the penalties crimi-
nally punitive. Hudson, 522 U.S. at 105.

   On balance, we conclude that HLP has not shown by
“clearest proof” that either the civil penalty or designation is
so punitive as to be criminal. Id. at 100. Although designation
presents a closer call than the civil penalty, at the end of the
day we are influenced by the fact that designation, at the core,
is a function of national security and foreign policy17 and thus
serves an alternative function other than punishment. As such,
we accord deference to the executive branch’s decision that
designation is necessary for the national interest. As a penalty,
designation is not excessive in relation to that purpose.

   [14] Therefore, neither the civil penalty nor designation
offends the First and Fifth Amendments for lack of sufficient
mens rea.

                                    ii

   [15] For the same reasons, IEEPA’s civil penalties do not
violate the First and Fifth Amendments because they do not
require proof of specific intent to further a designated entity’s
terrorist activities. HLP’s principal argument, that both the
civil and criminal penalties violate the First and Fifth Amend-
ments’ prohibition on guilt by association, is basically fore-
closed by prior HLP rulings. In HLP I we rejected a similar
challenge to AEDPA because that statute punishes “material
  17
    See, e.g., Islamic Am. Relief Agency, 477 F.3d at 734 (reviewing des-
ignation under Executive Order 13224 deferentially); Holy Land, 333 F.3d
at 166 (noting that review of SDGT designation “involv[es] sensitive
issues of national security and foreign policy”); see also, HLP I, 205 F.3d
at 1137 (AEDPA designations “involve[ ] the conduct of foreign affairs”
so “we owe the executive branch even more latitude than in the domestic
context”).
11650 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
support,” not association. HLP I, 205 F.3d at 1134. It follows
that to the extent IEEPA punishes “services,” it does not pun-
ish association. In HLP III, we also rejected HLP’s effort to
introduce a specific intent requirement into AEDPA’s crimi-
nal provision, 18 U.S.C. § 2339B, which punished those who
“knowingly provide[ ] ‘material support or resources’ to a
designated foreign terrorist organization . . . .” HLP III, 552
F.3d at 926. As we explained, this provision exposed someone
to criminal liability only where the government proved culpa-
ble intent, in the case of AEDPA — knowledge. Id. (distin-
guishing Scales v. United States, 367 U.S. 203 (1961), upon
which HLP relies here as well, as involving a statute “which
was silent with respect to requisite mens rea”). IEEPA’s
requirement that a person act “willfully” likewise “satisfies
the requirement of ‘personal guilt’ and eliminates any due
process concerns.” Id.

  [16] Thus, IEEPA’s penalties do not violate the First and
Fifth Amendments.

                              IV

   [17] HLP argues that the licensing scheme in 31 C.F.R.
§§ 501.801-02 violates the First and Fifth Amendments by
giving the Director of the Office of Foreign Assets Control
(OFAC) unregulated discretion to grant or deny exemptions
from IEEPA prohibitions. HLP lacks standing to pursue this
issue, however, for reasons stated by the district court. HLP
v. U.S. Dept. of Treasury, 463 F.Supp.2d at 1071-72; see San
Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121,
1126 (9th Cir. 1996) (quoting Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). In short, HLP has not been
denied a license under the licensing provision or even applied
for one; the licensing provision is not the cause of HLP’s
asserted injury; and invalidation of the licensing provision
would not redress any injury that HLP has suffered.

  HLP relies for the first time in reply on City of Lakewood,
486 U.S. at 755-56. Even if not waived, its reliance is unavail-
       HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11651
ing. As we have explained, the conditions that gave rise to
standing in City of Lakewood for a pre-enforcement challenge
do not exist here. The Executive Order and the licensing regu-
lations implementing it are aimed (in relevant part) at the pro-
vision of services, which is conduct-based, not at affording or
denying a chance to speak that is content- or viewpoint-based.

                                     V

   As a final point, HLP urges us to apply a saving construc-
tion to IEEPA to avoid constitutional difficulties. We see no
need to do so. Nor do we accept the proposition that IEEPA
should be narrowed to require a nexus between a sanction
against a national and a sanction against his country. HLP
points out that the statute permits the President to block trans-
actions with “any foreign country or a national thereof,”18
from which it infers that the word “thereof” indicates the need
for a link with sanctions against the country. However, neither
the text nor the Constitution requires this construction. The
statute permits the President to act with respect to any foreign
country, or any national, without first requiring that sanctions
be imposed against the country.

  HLP’s proffered construction of IEEPA is not necessary to
keep AEDPA, 18 U.S.C. § 2339B, from being superfluous.
The statutes have different characteristics and consequences.
Among other things, IEEPA is triggered only when the Presi-
dent declares a national emergency and takes action, whereas
AEDPA is applicable when the Secretary of State designates
   18
      50 U.S.C. § 1702(a)(1)(A)(ii) provides that the President may “inves-
tigate, regulate, or prohibit . . . transfers of credit or payments between,
by, through, or to any banking institution, to the extent that such transfers
or payments involve any interest of any foreign country or a national
thereof.”
   Subsection 1702(a)(1)(B) allows the President to act in the respects
identified with respect to property “in which any foreign country or a
national thereof has any interest by any person.” See supra note 2.
11652 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
a group as a foreign terrorist organization. The material sup-
port statute renders inadmissible any alien who has engaged
in terrorist activities, see 8 U.S.C. § 1182(a)(3)(B)(i)(IV) and
(V), whereas IEEPA does not. And AEDPA’s criminal mens
rea requirement differs from IEEPA’s.

   [18] We therefore decline to adopt HLP’s suggestions for
a saving construction.

                               VI

   We conclude that the district court correctly dismissed
HLP’s challenge to the President’s designation authority
under IEEPA and the UNPA. IEEPA has never been enforced
against HLP, nor has enforcement or designation ever been
threatened. Self-censorship, which suffices for pre-
enforcement challenges to statutes that are aimed at speech on
their face, is insufficient here because IEEPA is aimed at the
conduct of engaging in transactions with designated entities,
not at HLP’s speech.

   HLP’s challenge to the Secretary’s designation authority
fails on the merits. The ban on “services” in the Executive
Order is neither unconstitutionally vague nor overbroad, on its
face or as applied. It is adequately explicated in the regula-
tions such that a person of ordinary intelligence can figure out
the sort of assistance that is not allowed. HLP’s intended
activities are plainly within it. Independent advocacy is not.
And IEEPA’s civil penalties may be imposed without mens
rea requirements because they are indeed civil; its criminal
penalties require a culpable state of mind and the Constitution
does not additionally require specific intent to further terrorist
activities.

   HLP lacks standing to challenge the Treasury Department’s
licensing scheme. Under it, anyone can apply for an exemp-
tion from the ban on services. Having not done so, HLP is in
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11653
no position to assert injury from what it believes to be the
Secretary’s standardless discretion to grant or deny licenses.

  Given no constitutional difficulties of the magnitude that
requires a narrowing construction, we decline to rewrite
IEEPA more narrowly.

  AFFIRMED.



PREGERSON, Circuit Judge, dissenting in part:

   I dissent from Parts II and III.B. of the majority opinion.
HLP’s standing to challenge the President’s power to desig-
nate entities as specially designated global terrorists should be
analyzed using the less rigid standard appropriate when First
Amendment rights are at stake. Furthermore, I disagree with
the majority’s conclusion that the Executive Order’s ban on
“services” is valid, because I do not agree that a person of
ordinary intelligence would be put on notice of whether his or
her desired conduct would be considered a prohibited “ser-
vice.”

                                I

   The majority concludes that HLP lacks standing to chal-
lenge the President’s unfettered power to designate entities as
specially designated global terrorists (SDGTs) because HLP
has failed to demonstrate an injury-in-fact. In so concluding,
the majority finds that using a First Amendment standing
analysis for a pre-enforcement challenge is not proper in this
case. I disagree.

   “Particularly in the First Amendment-protected speech con-
text, the Supreme Court has dispensed with rigid standing
requirements.” California Pro-Life Council, Inc. v. Getman,
328 F.3d 1088, 1094 (9th Cir. 2003). The majority holds that
11654 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
because IEEPA1 does not, on its face, implicate First Amend-
ment rights, HLP cannot avail itself of the less rigid standing
requirements. Our case law, however, does not support the
majority’s chosen mode of analysis.

   First, no case holds that the standing analysis used in the
First Amendment context requires that the challenged statute
must on its face implicate First Amendment rights. To the
contrary, to invoke that standing analysis, the plaintiff must
only show “an actual and well-founded fear that the law will
be enforced against [him or her].” California Pro-Life Coun-
cil, 328 F.3d at 1095 (quoting Virginia v. Am. Booksellers
Ass’n, 484 U.S. 383, 393 (1988) (alteration in original)).
“[S]uch a fear of prosecution will only inure if the plaintiff ’s
intended speech arguably falls within the statute’s reach.”
California Pro-Life Council, 328 F.3d at 1095. A fear of pros-
ecution does not mean that the plaintiff must have been per-
sonally threatened with prosecution:

      A plaintiff who mounts a pre-enforcement challenge
      to a statute that he claims violates his freedom of
      speech need not show that the authorities have
      threatened to prosecute him; the threat is latent in the
      existence of the statute . . . . [I]f [the statute] argu-
      ably covers [his conduct], and so may deter constitu-
      tionally protected expression . . . there is standing.”

Id. at 1095 (quoting Majors v. Abell, 317 F.3d 719, 721 (7th
Cir. 2003)) (emphasis added).
  1
    IEEPA authorizes the President to declare a national emergency with
respect to “any unusual and extraordinary threat, which has its source in
whole or substantial part oustide the United States, to the national security,
foreign policy, or economy of the United States [.]” 50 U.S.C. § 1701(a).
Upon declaring such an emergency, the President may then exercise the
authority granted by section 1702. 50 U.S.C. § 1701(b). Section 1702
authorizes the President to block any transaction “with respect to . . . any
property in which any foreign country or a national thereof has any inter-
est by any person, or with respect to any property, subject to the jurisdic-
tion of the United States [.]”
      HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T 11655
   Here, HLP argues that it has a well-founded fear of prose-
cution because it seeks to engage in activities (for example,
providing training in human rights advocacy) that might be
deemed “association with” the PKK or the LTTE, or activities
which might be deemed to benefit those organizations. Based
on those activities, which involve conduct protected by the
First Amendment, HLP fears it might fall within the Presi-
dent’s broad power to designate entities as specially desig-
nated global terrorists. Because HLP’s First Amendment
rights are implicated, I believe our “less rigid” standing analy-
sis is the appropriate framework for this case.

   The majority finds that this case is distinguishable from
California Pro-Life Council and that the less rigid standing
analysis should not apply. The holding of California Pro-Life
Council, however, encompasses the facts of this case. HLP is
not “nakedly asserting that [its] . . . speech was chilled by the
statute.” California Pro-Life Council, 328 F.3d at 1095. HLP
seeks to support and advocate on behalf of the lawful activi-
ties of two organizations designated as foreign terrorist orga-
nizations. HLP has been deterred from taking its desired
course of action out of fear that it will be subject to the Presi-
dent’s designation authority, and all its assets frozen. While
this case may be factually distinguishable from California
Pro-Life Council, the same risks of self-censorship are pres-
ent. I therefore dissent from the majority’s standing analysis.

                                II

   I disagree with the majority’s holding that the Executive
Order’s ban on providing “services” here is valid. According
to the majority, the ban is distinguishable from the ban invali-
dated in HLP III because here, relevant regulations clarify
what the term “services” means. It is true that 31 C.F.R.
§ 594.406(b) provides examples of banned services: “legal,
accounting, financial, brokering, freight forwarding, transpor-
tation, public relations [and] educational” services are all
clearly prohibited. The list then unhelpfully concludes, how-
11656 HUMANITARIAN LAW PROJECT v. U.S. TREASURY DEP’T
ever, with the phrase “or other services,” thereby vitiating
whatever aid the list could have provided in discerning what
conduct is banned. Relying on this list, a person of ordinary
intelligence would not be put on notice of whether his or her
desired conduct would be considered a prohibited “service.”

   HLP argues that the term “services” could easily trench
upon independent advocacy undertaken for the benefit of a
designated group. The majority finds this is not the case,
because the government reassures us that it will not apply the
regulation to protected speech. The Treasury Department, for
example, promises to apply its regulations in a manner “con-
sistent with pertinent Federal law, including, where applica-
ble, the First Amendment . . . .” 72 Fed. Reg. 4206 (Jan. 30,
2007). The government has taken the position and made rep-
resentations that the term “services” does not reach indepen-
dent advocacy. I doubt whether such expressed intentions and
representations—no matter how earnestly made—could
assuage the reasonable fears of entities who stand to have all
their assets frozen if the Secretary should change course.
Accordingly, I dissent.
