The opinion of the court was delivered by: PRATT
The court has before it the government's motion to dismiss all counts of the complaint brought by plaintiffs Louis Farrakhan and Muhammad Mosque, Inc. The government asserts failure to exhaust administrative remedies and failure to state a claim upon which relief can be granted as grounds for its motion. In addition, this court, sua sponte, raised the issue of the plaintiffs' standing. All issues have been fully briefed. For the reasons outlined below, we grant the government's motion both as to plaintiff Farrakhan and as to plaintiff Muhammad Mosque, Inc.
On January 7, 1986, in the wake of terrorist bombings at airports in Rome, Italy and Vienna, Austria, President Reagan declared a national emergency and invoked his powers under the International Emergency Economic Powers Act (IEEPA), 50 U.S.C. §§ 1701, et seq., to impose wide-ranging and comprehensive economic sanctions against Libya.
The effect of the sanctions is to halt virtually all economic intercourse with Libya, see Ex. Ord. 12543, 51 Fed. Reg. 875 (Jan. 7, 1986), and to "block" all Libyan property in the United States, see Ex. Ord. 12544, 51 Fed. Reg. 1235 (Jan. 8, 1986). The Treasury Department subsequently issued regulations implementing these executive orders. 50 C.F.R. Part 550 (Libyan Sanction Regulations). In addition, prior to the President's declaration of a national emergency, the State Department had issued a notice of restriction declaring that United States passports are invalid for use in travel to, from and through Libya without special validation. 50 Fed. Reg. 49809 (Dec. 4, 1985). The Libyan Sanction Regulations supplemented this ban by prohibiting all transactions relating to travel to or within Libya. 50 C.F.R. § 550.207.
On February 5, 1986, Minister Farrakhan denounced the sanctions in a press conference at the National Press Club in Washington, D.C. Following the speech, Farrakhan announced his intent to travel to Libya. Shortly thereafter, Farrakhan left the United States. On February 8, 1986, it was reported in a Chicago newspaper column that Attorney General Meese, when asked about Farrakhan's announced intention to travel to Libya, had stated that if and when Farrakhan went to Libya "he should be prosecuted." Compl. Ex. 2. The same column also reported that Farrakhan was visiting Nigeria and other African nations, but that, according to a Farrakhan spokesman, his itinerary did not include Libya. Id.
In fact, Farrakhan did travel to Libya. On or about March 12, 1986, he arrived in Libya aboard an Aeroflot flight. Compl. para. 24. Farrakhan asserts that he did not use his United States passport to enter Libya. Id. at para. 25. While in Libya, he attended the Second Mathaba Conference in Tripoli, delivering an address to that body on March 16, 1986. Farrakhan left Libya on March 29, 1986 aboard a Saudi Airlines flight for Saudi Arabia. Id. at para. 27. Farrakhan asserts that he did not use his United States passport to leave Libya. Id. Subsequently, he returned to the United States.
Plaintiff Farrakhan now asserts that he faces a genuine threat of prosecution for his travels to Libya. Id. at para. 28. He bases this claim of a threat of prosecution on Meese's alleged statements, as reported in the Chicago newspaper. Farrakhan asserts that his travel to Libya in the wake of the President's declaration of a national emergency is symbolic speech critical of the President's conduct of foreign policy toward Libya. Id. at para. 31. He contends that the threat of prosecution "chills" his First Amendment freedom of speech.
He also asserts that the threat of prosecution is intended to discourage him from using Libya as a forum from which to criticize the United States' foreign policy. Id. at para. 29. He contends that this attempt to limit his choice of forum violates his rights under the First Amendment.
Separate and independent from Farrakhan's claims relating to his March, 1986 trip to Libya are the Muhammad Mosque's claims under the Free Exercise clause. In early April, 1985, the Muhammad Mosque, Inc. received a $ 5 million loan from the Islamic Call Society, an agency of the Libyan government. Notwithstanding Islamic Call Society's official status, Muhammad Mosque alleges that its only dealings with the Society have been religious in nature. When the Libyan Sanction Regulations were issued in January, 1986, Muhammad Mosque alleges that it was precluded from repaying the loan directly to Islamic Call Society. Because the beliefs of Muhammad Mosque's members require it to repay all loans in a timely manner and preclude the payment of interest, Muhammad Mosque alleges that the Libyan Sanction Regulations impermissibly interfere with the free exercise of religion of its members. In addition, Muhammad Mosque also alleges that the Free Exercise Clause mandates that the Mosque be allowed to extend monetary aid to its religious brethren in the Islamic Call Society for the continued propagation of the Islamic Faith. Compl. at para. 36.
I. Farrakhan's Lack of Standing
Consistent with the "case or controversy" requirement of Article III of the Constitution, we must determine whether either plaintiff has raised justiciable claims before proceeding to the merits. Upon review of the claims, the only serious justiciability question presented is plaintiff Farrakhan's standing to bring his claims at this time.
We conclude that plaintiff Farrakhan lacks standing to seek adjudication of his claims.
In order to have standing, plaintiff Farrakhan must show three things: (1) the injury is not too abstract, or otherwise inappropriate, to be judicially cognizable; (2) the line of causation between the government's allegedly illegal conduct and injury is not too attenuated; (3) the prospect of obtaining relief from the injury is not too speculative. Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984). With respect to Farrakhan's claims, absent considerations of a declared national emergency, there is little doubt that if he suffered cognizable injury as a result of the Libyan Sanction Regulations or the threat of prosecution thereunder, such injury would be fully redressable by declaratory judgment or injunction.
In order for Farrakhan to establish that he has suffered a judicially cognizable injury, he must show that he faces the "imminence of concrete, harmful action such as threatened arrest for specifically contemplated First Amendment activity." United Presbyterian Church in the U.S.A. v. Reagan, 238 U.S. App. D.C. 229, 738 F.2d 1375, 1380 (D.C. Cir. 1984). Moreover, Farrakhan must show that the threat of arrest or prosecution is "genuine," not speculative or chimerical. Steffel v. Thompson, 415 U.S. 452, 475, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). The subjective "chill" of First Amendment freedoms is not sufficient injury on which to ground standing. United Presbyterian Church, 738 F.2d at 1380.
Farrakhan has not shown that the threat of prosecution is "genuine." In support of standing, Farrakhan cites Attorney General Meese's February 1986 statement that Farrakhan "should be prosecuted" if he goes to Libya. While the statement of the Attorney General may in some instances be entitled to great weight, there is nothing to indicate that this is one of those instances. Plaintiff has not shown that the government has sought criminal enforcement of the travel restrictions generally. Other than the Attorney General's single statement, plaintiff cites no evidence from the year since plaintiff's trip to Libya which would indicate that the government is contemplating prosecution. In addition, the government does not have a strong interest in seeking enforcement of the travel-related restrictions, especially when it is not clear from the facts alleged in the complaint that Farrakhan has violated the letter of the Libyan Sanctions Regulations or the State Department's passport restrictions. Under these circumstances, we cannot find that Farrakhan ...