Increase State Expenditures - $88,600/Incarceration*
As described in more detail below, this bill: authorizes the attorney general and reporter to designate an organization as a sharia organization; requires the attorney general to make certain notifications and publications prior to and after such a designation; provides for administrative, legislative and court review of designations; establishes guidelines and procedures regarding confidential information; authorizes the attorney general to require financial institutions to freeze the organization's assets and to report such assets or incur a civil penalty for failure to do so; and creates an offense for persons knowingly providing material support or resources to such organizations.
Under this bill, the attorney general may designate an organization as a sharia organization if the attorney general finds that:
(1) The organization knowingly adheres to sharia;
(2) The organization engages in, or retains the capability and intent to engage in, an act of terrorism; and
(3) The act of terrorism of the organization threatens the security or public safety of this state's residents.
This bill defines "sharia" as the set of rules, precepts, instructions, or edicts which are said to emanate directly or indirectly from the god of Allah or the prophet Mohammed and which include directly or indirectly the encouragement of any person to support the abrogation, destruction, or violation of the United States or Tennessee Constitutions, or the destruction of the national existence of the United States or the sovereignty of this state, and which includes among other methods to achieve these ends, the likely use of imminent violence. Under this bill, any rule, precept, instruction, or edict arising directly from the extant rulings of any of the authoritative schools of Islamic jurisprudence of Hanafi, Maliki, Shafi'i, Hanbali, Ja'afariya, or Salafi, as those terms are used by sharia adherents, is prima facie sharia without any further evidentiary showing.
A designation would be effective for all purposes until revoked by the general assembly or the attorney general, or set aside by a court upon review.
NOTIFICATION AND PUBLICATION
This bill requires the attorney general to do the following:
(1) Seven days before making a designation of an organization as a sharia organization, by confidential communication, notify the governor and the speakers, speakers pro tem, deputy speakers, and the majority and minority leaders of each house of the general assembly;
(2) Publish the designation in a daily newspaper of general circulation in this state seven days after providing the notification described above; and
(3) Serve written notice on the organization designated. Service must be accomplished as service of a summons and complaint under Rule 4 of the Tennessee Rules of Civil Procedure.
This bill requires the secretary of state to:
(1) File such designations in the same general manner as agency rules; and
(2) Publish such designations on the secretary of state's Web site and in the appropriate monthly administrative register in a section devoted to such designations in the same general manner as required of administrative rules.
REVIEW BY ATTORNEY GENERAL AND REVOCATION OF DESIGNATION BY GENERAL ASSEMBLY OR ATTORNEY GENERAL
This bill requires the attorney general to review the designation of a sharia organization under the procedures detailed in this bill, if the designated organization files a petition for revocation within the petition period described in the bill. If the designated organization has not previously filed a petition for revocation under these provisions, the petition period begins two years after the date on which the designation was made. If the designated organization has previously filed a petition for revocation, the petition period begins two years after the date of the determination made under that petition.
Any designated organization that submits a petition for revocation must provide evidence in such petition that the relevant circumstances are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the organization is warranted. Not later than 180 days after receiving a petition for revocation, the attorney general must make a determination as to such revocation. A determination made by the attorney general under review must be filed with the secretary of state and published in the same fashion as required for the initial designation.
If in a five-year period, no review has taken place , the attorney general must review the designation of the sharia organization in order to determine whether such designation should be revoked. If a review does not take place in response to a properly filed petition for revocation, then the review must be conducted pursuant to procedures established by the attorney general. The results of such review and the applicable procedures would not be reviewable in any court. Any determination made pursuant to these provisions must be filed and published in the same fashion as required for other determinations/designations.
The general assembly, by an act of the general assembly, may block or revoke a designation made by the attorney general.
The attorney general may revoke a designation at any time, and must revoke a designation upon completion of a review conducted pursuant to the above provisions if the attorney general finds that:
(1) The circumstances that were the basis for the designation have changed in such a manner as to warrant revocation; or
(2) The security and public safety of this state warrants a revocation.
The procedure described above and in this bill would apply to a revocation under this provision. Any revocation would take effect on the date specified in the revocation or upon filing and publication if no effective date is specified.
The revocation of a designation would not affect any action or proceeding based on conduct committed prior to the effective date of such revocation. If a designation under this bill becomes effective, a defendant in a criminal or civil action may not raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing.
The attorney general may amend a designation if the attorney general finds that the organization has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name, or merged with another organization.
No later than 30 days after the required service and publication of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review only in the court of appeals of Tennessee. Review would be based solely upon the administrative record, except that the attorney general may submit, for ex parte and in camera review, confidential information used in making the designation, amended designation, or determination.
The court must hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation the court finds to be:
(1) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) Contrary to constitutional right, power, privilege, or immunity;
(3) In excess of statutory jurisdiction, authority, or limitation, or short of statutory right;
(4) Lacking substantial support in the administrative record taken as a whole or in confidential information submitted to the court; or
(5) Not in accord with the procedures required by law.
The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation would not affect the application of this bill, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for revocation.
OFFENSE OF PROVIDING MATERIAL SUPPORT
Under this bill, any person who knowingly provides material support or resources to a designated sharia organization, or attempts or conspires to do so, commit an offense. This bill defines what is considered to be "material support or resources."
A violation would be a Class B felony, punishable by fine, imprisonment of not less than 15 years or both; provided, that if the death of any person results from a violation, then the offense is a Class A felony, punishable by imprisonment for life or imprisonment for life without possibility of parole.
To commit this offense, a person must have knowledge that the organization:
(1) Is a designated sharia organization, or
(2) Has engaged or engages in: one or more acts of terrorism, targeting a person or institution in Tennessee; terrorist activity in this state or from within this state, as defined by federal law; or terrorism in this state or from within this state.
Upon notification by the attorney general to the governor and specified general assembly members, the attorney general may require financial institutions doing business in this state, possessing or controlling any assets of any organization included in the notification, to block all financial transactions involving those assets until further directive from either the attorney general, an act of the general assembly, or an order of the court.
Except as authorized by the attorney general, any financial institution doing business in this state that becomes aware that it has possession of, or control over, any funds in which a sharia organization, or its agent, has an interest, must:
(1) Retain possession of, or maintain control over, such funds; and
(2) Report to the attorney general the existence of such funds.
Any financial institution doing business in this state that knowingly fails to comply with the above requirements would be subject to a civil penalty in an amount that is the greater of:
(1) $50,000 per violation; or
(2) Twice the amount of which the financial institution was required to retain possession or control.
If the attorney general believes that any person is engaged in, or is about to engage in, any act that constitutes, or would constitute, a violation of this bill's provisions regarding providing material support and financial institutions possessing funds of a designated organization, the attorney general may initiate civil action in a circuit court of this state to enjoin such violation.
RECORDS AND CONFIDENTIALITY
In making a designation under this bill, the attorney general must create an administrative record. The attorney general may consider confidential information in making a designation and when reviewing a designation. Confidential information may not be subject to disclosure for such time as it remains confidential, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under this bill.
In any civil proceeding under this bill, upon request made ex parte and in writing by the attorney general, a court, upon a sufficient showing, may authorize the attorney general to:
(1) Redact specified items of confidential information from documents to be introduced into evidence or made available to the defendant through discovery under the Tennessee Rules of Civil Procedure;
(2) Substitute a summary of the information for such confidential documents; or
(3) Substitute a statement admitting relevant facts that the confidential information would tend to prove.
If the court enters an order granting such a request, the entire text of the documents to which the request relates will be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal. If the court enters an order denying the request, the attorney general and reporter may take an immediate, interlocutory appeal. For purposes of such an appeal, the entire text of the documents to which the request relates, together with any transcripts of arguments made ex parte to the court in connection therewith, will be maintained under seal and delivered to the appellate court.
During the examination of a witness in a civil proceeding brought pursuant to this bill, the attorney general may object to any question or line of inquiry that may require the witness to disclose confidential information not previously found to be admissible. This bill requires the court, in determining whether a response is admissible, to take precautions to guard against the compromise of any confidential information.
This bill details the procedures for an interlocutory appeal with the court of appeals from a decision or order of a circuit court regarding confidential information.
Any individual injured in the individual's person, property, or business by reason of an act in violation of the provisions governing providing material support and financial institutions, or the individual's estate, survivors, or heirs, may sue in any appropriate circuit court of this state and recover three times the damages sustained and the cost of the suit, including but not limited to attorney's fees. A final judgment or decree rendered in favor of this state in any criminal or civil proceeding under this bill must stop the defendant from denying the essential allegations of the offense in any subsequent civil proceeding under this bill. Also, a final judgment or decree rendered in favor of any foreign state, or in favor of the United States, in any criminal proceeding must, to the extent that such judgment or decree may be accorded full faith and credit under the law of this state, stop the defendant from denying the essential allegations of the offense in any subsequent civil proceeding under this bill.
ON MAY 20, 2011, THE HOUSE ADOPTED AMENDMENT #2 AND PASSED HOUSE BILL 1353, AS AMENDED.
AMENDMENT #2 rewrites the bill and revises present law regarding the offense of providing material support or resources to terrorists.
Under present law, it is a Class B felony for a person to provide material support or resources to any person known to be planning or carrying out an act of terrorism in this state, or concealing or attempting to escape after committing or attempting to commit an act of terrorism. This amendment makes this offense a Class A felony, instead of a Class B felony. This amendment adds that it would also be such a Class A felony offense for a person to provide material support or resources to any designated entity, if the person has actual knowledge that the entity is a designated entity. "Designated entity" means any entity designated by the U.S. department of state as a foreign terrorist organization or by the U.S. department of the treasury as a specially designated national.
Under present law, "material support or resources" means currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials. This amendment rewrites the definition of "material support or resources" to instead mean any service or property, tangible or intangible, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, transportation, and personnel, but not including medicine or religious materials.
This amendment specifies that a person prosecuted under this amendment for providing material support or resources to a designated entity would be afforded the same due process rights as are afforded to persons prosecuted for such actions under federal law. The district attorney must notify the U.S. department of state, and any other appropriate federal department or agency, of such a violation.
This amendment specifies that religious justification for violence or criminal activity prohibited by the state Terrorism Prevention and Response Act of 2002 may not be considered a justification or a defense, nor may it prohibit prosecution under such Act.