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Material Support to Terrorism

The Antiterrorism and Effective Death Penalty Act of 1996 amended 18 U.S.C. § 2339A to expand its list of terrorist type offenses. See Pub. L. 104-132, § 323, 110 Stat. 1214, 1255. Section 2339A, originally enacted on September 13, 1994, is primarily a statute aimed at reaching those persons who provide material support to terrorists knowing that such support will be used to commit one of the offenses specified in the statute. (The offenses specified in the statute are: 18 U.S.C. §§ 32, 37, 81, 175, 351, 831, 842(m) or (n), 844(f) or (i), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 2155, 2156, 2280, 2281, 2332, 2332a, 2332b, or 2340A and 49 U.S.C. § 46502.) The section requires only that the supplier of the material support have knowledge of its intended use. Section 2339A, unlike the aiding and abetting statute (18 U.S.C. § 2), does not require that the supplier also have whatever specific intent the perpetrator of the actual terrorist act must have to commit one of the specified offenses. The 1996 amendment also eliminated former subsection 2339A(c) which had imposed unworkable investigative restrictions upon the statute's utilization.

The Antiterrorism Act also created 18 U.S.C. § 2339B, which makes it unlawful, within the United States, or for any person who is subject to the jurisdiction of the United States anywhere, to knowingly provide material support to a foreign terrorist organization that has been designated by the Secretary of State. See Pub. L. 104-132, § 303, 110 Stat. 1214, 1250.

The term "material support or resources" means "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials; (2) the term "training" means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and (3) the term "expert advice or assistance" means advice or assistance derived from scientific, technical or other specialized knowledge."

The Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. No. 108-458, § 6603(b), 118 Stat. 3762, specified "No person may be prosecuted under this section in connection with the term ‘personnel’ unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control."

The First Amendment does protect the associations of U.S. persons and residents, even if those associations are with foreign persons.2 Still, the government may proscribe some types of interactions with foreign groups or individuals in the interest of national security. In Holder v. Humanitarian Law Project, two U.S. citizens and six domestic organizations challenged the constitutionality of a federal ban on providing material support or resources to designated foreign terrorist organizations. They argued that the law criminalized protected speech and association with two foreign groups that the United States had designated as foreign terrorist organizations.

The case, Holder v. Humanitarian Law Project, had oral argument on 23 February 2010. The US Supreme Court’s first major test of whether the war on terrorism conflicts with the free speech principles of the First Amendment, the government’s case held that Ralph Fertig's advocacy through the Humanitarian Law Project for the Kurds could amount to “material support” for terrorism, a crime punishable by up to 15 years in prison. In 1998 a federal judge in Los Angeles enjoined the law from being enforced against the Humanitarian Law Project, and that order was upheld on appeal. A 2004 round of litigation attacked the provisions banning “expert advice and assistance” because the government had said that filing an amicus brief in court, sending a petition to Congress or writing a newspaper op-ed article could qualify as providing expert “assistance” to a terrorist group.

The Due Process Clause requires that a criminal statute be sufficiently clear to give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited.” The court of appeals held that the term “training” is unconstitutionally vague. The court considered it “highly unlikely that a person of ordinary intelligence would know whether, when teaching someone to petition international bodies for [humanitarian] aid, one is imparting a ‘specific skill’ or ‘general knowledge.’” In addition, “[e]ven if persons of ordinary intelligence could discern between the instruction that imparts a ‘specific skill,’ as opposed to one that imparts ‘general knowledge,’” the court stated that “the term ‘training’ could still be read to encompass speech and advocacy protected by the First Amendment.” The court concluded that the term “training” is vague “because it ‘implicates, and potentially chills, [respondents’] protected expressive activities.’”

The court of appeals also held that the term “expert advice or assistance” is unconstitutionally vague. The court noted that the statute’s definition of “expert advice or assistance” as “advice or assistance derived from scientific, technical or other specialized knowledge,” 18 U.S.C. 2339A(b)(3), was borrowed from Federal Rule of Evidence 702. But that borrowing, the court stated, “does not clarify the term ‘expert advice or assistance’ for the average person with no background in law.” In particular, the court concluded that “the ‘other specialized knowledge’ portion of the ban” would “cover constitutionally protected advocacy.”

Counsel for the government argued before the Supreme Court : “We do not want U.S. persons to be assisting terrorist organizations in making presentations to the U.N., to television, to a newspaper. We do not want U.S. persons assisting these organizations except as Congress has specifically provided.” In 2009, the 9th Circuit barred enforcement of provisions involving “service,” “expert advice or assistance” and “training” because they were unconstitutionally vague.

US Solicitor General Elena Kagan in her brief suggested the court could revise the statute to say it does not extend to “independent advocacy” by activists like Fertig. “A person who acts independently to advocate for a terrorist group would not commonly be considered to have knowingly provided something ‘to’ that terrorist organization,” she wrote. Counsel for the Humanitarian Law Project said this concession would not suffice. Someone who wrote independently on behalf of the PKK could be accused of collaborating with the group if he had associated with some of its members. Citing the court’s struggle with the postwar anti-communist statutes, counsel argued the law should require proof that someone who writes or speaks on behalf of a group such as the PKK intended to further its illegal and violent activity. Counsel contend that the government "rests its entire case on the proposition that criminalizing plaintiffs' speech is a regulation of conduct, not speech, and therefore can be upheld... when the speech advocates solely lawful, peaceable activities of the sort advocated here, that's not sufficient.... it may make a difference if we are at war. The law of treason prohibits aid... "

The Supreme Court in Humanitarian Law Project upheld § 2339B, as applied, against challenges that it was unconstitutionally vague and inconsistent with the First Amendment’s freedom of speech and freedom of association requirements. The Supreme Court agreed that the law restricted the freedom of speech, but it held that the United States’s interests in national security and combating international terrorism justified the prohibition. With regard to the plaintiffs’ freedom-of-association claim, the Court concluded that the statute did not penalize mere association with a foreign terrorist organization, suggesting that the First Amendment would protect membership in a foreign terrorist organization or independent advocacy of the group’s political goals. Instead, the Court reasoned, the statute prohibited only providing specified forms of material support to such organizations. In the plaintiffs’ case, that support took the form of providing training or legal expertise on issues of peaceful dispute resolution and humanitarian aid. To the extent the prohibition burdened association, the Court held, it was justified on the same national security grounds as the statute’s restrictions on speech.

Muslim Legal Fund of America concluded "The Supreme Court in Holder v Humanitarian Law Project found that even intangible support like speech, made in conjunction with, on behalf of, or for the benefit of, a foreign terrorist organization is not protected, and constitutes criminal material support of the designated terrorist organization."