Material Support for Terrorism

MATERIAL SUPPORT FOR TERRORISM
"Treason doth never prosper. If it did, none dare call it treason" (Sir John Harrington)

Just as there are many forms of complicity (inchoate crimes), there are many forms of complicity-like crimes. Treason, aiding and abetting the enemy, trading with the enemy, and material support for terrorism are such crimes. Treason is fairly simple to understand (and explained below), but material support is somewhat complicated. The most common (and legally valid) beginning of a material support case will likely involve "giving false information" charges (it being a federal felony under 18 USC §1001 to lie to an investigator). This is a way to put a person on hold who is suspected of more severe charges in order to allow evidence to be gathered and checked to see if it justifies more severe charges. In terrorism law, when a person is charged with "false information," they are being suspected of involvement in a possible nascent terrorist plot and the law's purpose here is to get them off the streets early -- before an attack takes place. The suspects in these kinds of cases are usually already on U.S. soil, a U.S. citizen, or legally in the United States, so this area of crime control is a part of domestic U.S. law.

It should be noted that there are many ways to get someone "off the street" by using other charges. For example, immigration law could be used (if the person is a resident alien) if travel or visa documents are out of order. Alternatively, old-fashioned conspiracy or racketeering charges could be used (and the suspect would have to additionally be considered a flight risk or otherwise qualify under RICO statutes). It is also possible (if enough evidence exists) to charge a person directly with terrorism or being a national security threat, but any good lawyer is likely to get the suspect out of that one. Clearly, authorities have many tools at their disposal and are in the unique position of having to balance the need for public protection with the need to uphold civil liberties. To actually "hold" the suspect in jail (get them off the street), a document called a "detention memorandum" must be filed along with (or shortly after) the indictment. This document contains the government's motion for a permanent order of detention making the case for the suspect being both a danger to the community and a flight risk. This document will also usually outline some of the government's evidence collected so far, but sometimes sealed affidavits are used). Typical evidence relied upon include: surveillance tapes, intercepted Internet or telephone communications, eyewitness testimony, and/or travel patterns (making up a profile). The most common type of eyewitness testimony usually comes from a government-run sting operation.

It should also be noted that much of detention law in this area is tied up with habeas corpus law involving the Guantanamo Bay detainees. To summarize the emerging law in that area would be difficult, but essentially involves a judicial distaste for overreliance on the term "support." For example, Judge Bates’s opinion in Hamlily v. Obama, 616 F. Supp. 2d 63 (D.D.C. 2009) rejects the notions of "substantial support" and "direct support" as independent bases for detention, and prefers instead a standard by which the government must prove a suspect was "part of" a known terrorist (covered) organization (through membership or otherwise) and/or committed a "belligerent act." Domestic law and the laws of war seem to coincide in this area, as the law of war standard requires "direct participation in hostilities," but it is unclear if that standard will be extended into material support law.

Domestic U.S. cases of material support seem to fit three basic patterns. There is some controversy over these classifications, and they are best seen as criminological exercises in typology development. They are:

    1. members of an al-Qaeda cell -- easily proved by travel or visit to a training camp
    2. domestic insurgents -- who can be US citizens, legal resident aliens, or illegal resident aliens, and are "linked" to al-Qaeda by some training and mission support - there have been quite a few of these cases
    3. parallel thinkers -- these people are not clearly linked to al-Qaeda, but are their ideological counterparts, examples being the DC snipers and shopping mall shooters.

The U.S. Supreme Court plans to take up the issue of material support in its 2009-2010 term, but two recent cases of material support came up in District Courts of New York in September, 2009. The links here are to press releases about the cases: (1) Abdul Tawala Ibn Ali Alishtari, who ran an investment scam to help finance terrorist activity in Pakistan and Afghanistan; and (2) Betim Kaziu, who made efforts to purchase weapons overseas and attempted to join Al-Shabbab, a radicalized, militant insurgency group, which has supported al-Qaeda and which has been designated a terrorist organization by the United States Department of State.

The constitutional crime of treason has been rarely enforced (barely 30 cases in 225 years). At English common law, it has traditionally been the one carrying the most stigma, punishable not only by death, but a exceptionally cruel method of death. A treason conviction today still carries the death sentence, but nothing exceptional, and in fact, usually a pardon. The crime of seditious conspiracy (carrying a twenty year sentence) has mostly taken its place where the offenders are commonly referred to as "traitors." The last round of American use involved eight treason indictments following WWII: one for the mistreatment of prisoners; two for spying; and five for making propaganda broadcasts on behalf of the enemy (e.g. Axis Sally and Tokyo Rose). The constitutional basis for the crime of treason comes from Article III, Section 3, Paragraph 1 (codified in USC Section 2381), which reads: "Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them aid and comfort." The "aid and comfort" clause has been interpreted by the Supreme Court to require proof of four elements where the two-witness rule is considered the hardest to prove.

In practice, the crime of treason consists of two elements based on the two major clauses: adherence to the enemy; and rendering them aid and comfort. Both elements are necessary. It is legal for a citizen to intellectually or emotionally favor the enemy or harbor sympathies toward the enemy or even appear disloyal to their country (in the U.S. at least; other countries have different views of treason). As long as this citizen commits no act of aid and comfort to the enemy, there is no treason. Likewise, a citizen may legally take actions which do aid and comfort the enemy (say making speeches, going on strike, or profiteering in some way), but as long as there is no adherence to the enemy and their mental state betrays no intentional disloyalty, there is no treason.

The charge of treason might be making a comeback. On October 11, 2006, a federal district court in Central California indicted Adam Gadahn for the crime of treason. Adam Gadahn, aka Adam Yahiye Gadahn aka Azzam the American has been a spokesperson for al-Qaeda since 2004. His indictment begins, as such indictments do, clarifying the nature of al-Qaeda as a terrorist organization along with its proclamations and actions which make it an enemy at war with the United States. Such clarifications are important preliminary pieces of an indictment because they lay the factual foundation for the charges which follow, which contain all four elements of the offense:

INDICTMENT OF ADAM GADAHN

Beginning on a date unknown and continuing to at least September 11, 2006, defendant ADAM GADAHN, also known as "Azzam al-Ameriki" ("GADAHN"), a citizen of the United States, whose last known place of residence was in Orange County, within the Central District of California, owing allegiance to the United States, knowingly adhered to an enemy of the United States, namely, al-Qaeda, and gave al-Qaeda aid and comfort, within the United States and elsewhere, with intent to betray the United States. In so doing, GADAHN committed the following overt acts witnessed by two or more witnesses.
In an October 27, 2004 video, Gadahn acknowledged that he "has joined a movement waging war on America and killing large numbers of Americans," and he also made the following statements:

"Fighting and defeating America is our first priority..."
"September 11th...notified America that it's going to have to pay for its crimes and pay dearly."
"Jihad is our path and jihad is the answer."
"People of America...you too shall pay the price for the blood that has been spilled...."
"The magnitude and ferocity of what is coming your way will make you forget all about 9/11."
"The streets of America shall run red with blood..."

In a September 11, 2005 video, he described the 9/11 attacks as "blessed raids" and also made the following statements:

"These communiqués have been released to explain our world wide jihad against America..."
"As Sheik Usama has told you repeatedly, your security is dependent upon our security."
"Next time, don't count on us demonstrating restraint or compassion."
"We love nothing better than the heat of battle, the echo of explosions, and slitting the throats of infidels."
"Every one of us is Mohammed Atta, Jamaal Lindsay, or Mohammed Boyeri."

In a July 7, 2006 video, Gadahn referred favorably to the recent execution of two American servicemen, and he also made the following statements:

"Why should we target their military only?"
"It's hard to imagine why anyone would not want to go on a shooting spree at the Marines' housing facilities at Camp Pendleton."
"No sane Muslim should shed tears for when we kidnap their non-combatants."

In a September 2, 2006 video, Gadahn was introduced by al-Zawahiri as "our brother Azzam the American," and he made the following statements:

"If you want to be on the winning side in this life and the next, then take the simple step I have just outlined."
"Americans. You know that you're considered...as nothing more than expendable cannon fodder..."
"Escape from the unbelieving army and join the winning side...before you meet your dismal fate."

In a September 11, 2006 video, Gadahn referred to the United States as "enemy soil" and made the following statements:

"All the brothers who took part in the raids on America were dedicated Muslims."
"Look at the pilots. All has lived and studied in the West. They had the world within their reach, yet how could they live with themselves, if they were to enjoy this worldly life while their Ummah burns."
"In hindsight, everything al-Qaeda was doing was according to plan, including the expected crusader invasion."

In the Adam Gadahn case, prosecutors are optimistic that the two-witness rule will be easily satisfied by the video broadcasts. Such verbal statements are express statements which, under law, may be inferred as overt acts. However, what is not so clear is whether such broadcasts fall under the First Amendment right to free speech. That issue was decided, and rejected, in a couple of World War II cases. In Chandler v. U.S., what emerged was the standard defense used in broadcast treason cases that "mere words, the expression of opinions and ideas for the purpose of influencing people, cannot constitute an overt act of treason...[persons] have the right to broadcast, or otherwise disseminate to the American people ideas which coincide with the enemy line, and that therefore, their preliminary steps to that end, including attendance and speeches at meetings, cannot be treasonable acts." The Court of Appeals in Chandler rejected that argument, stating that "the communication of an idea, whether by speech or writing, is as much an act as throwing a brick, though different muscles are used; and the significant thing is not so much the character of the act, but the intent to betray." [citing Cramer v. U.S. where there must be adherence to the enemy; if there is no intent to betray, there is no treason] The Court in Chandler found the defendant collaborated in the execution of a program of psychological warfare designed by the enemy, not the normal free speech processes of domestic political opposition. In Gillars v. U.S. (the Axis Sally case), the Court similarly observed that the defendant took part in psychological warfare against the U.S., and that words spoken as part of a program of propaganda warfare in the course of employment by the enemy, to which the accused owes allegiance, may be an integral part of the crime. Words were used with when reasonably viewed constitute acts in furtherance of a program of an enemy to which the speaker adheres and to which they give aid with intent to betray their own country.

In this particular area of law, it is customary to expand upon the "right to free speech" and how it evolved into a "right of association." Skipping over some basic essentials (see Lecture on Free Speech), let's start with how courts always had problems measuring evil intent, even with the Dennis v. U.S. (1951) standard of Clear and Probable Danger which ended up fueling McCarthyism rather than serving its original intent as a modification of the clear and present danger test. Then, along came Brandenburg v. Ohio (1969), that famous case which defended the Klan's right to march and make speeches at public gatherings. The right to association is in Brandenburg, but also inherent in a number of other cases which scholars have chased down, like NAACP v. Alabama ex rel. Patterson (1958) which barred the government from seeing the membership lists of an organization in presumed recognition of the right of association. In terrorism law, the right of association plays a large part in discussions about the material support of designated terrorist organizations, and not so much in discussion of individual associations or relationships.

Another possible defense issue is whether or not the crime of treason requires a Congressional declaration of war. This is the standard "Hollywood traitor" defense pioneered by Jane Fonda to justify her anti-war statements from the seat of a North Vietnamese anti-aircraft gun. Fonda wasn't tried for treason for lack of evidence or lack of intent but for lack of prosecutorial will. As Holzer & Holzer (2006) point out, she could easily have been indicted for treason because a Congressional declaration of war is not legally necessary. Despite a clear statement in the Constitution which says "Congress shall have the power to declare war," the Supreme Court has consistently refused to weigh in on this matter. In practice, the judicial branch has always deferred to Presidential commander-in-chief powers to "wage" and "commence" war without a declaration of war as long as the case is laid out to the American people and Congress is notified regarding status and length of the deployment in accordance with the War Powers Resolution (also called the War Powers Act of 1973 or Public Law 93-148). It is also a matter of words since "declaring" war is not the same thing as "engaging" in war (without consent of Congress, and prohibited by the Constitution unless invasion or imminent danger) and is not the same thing as "levying" war (used in the definition of treason). It also being a matter of words with free speech and associational issues, the following case brief should clarify and summarize the issues, as it is one, perhaps the most significant one, of many cases challenging the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) which is where the offense of "material support" was originally created:

Humanitarian Law Project v. Reno (205 F.3d 1130 (9th Cir. 2000)

     FACTS IN THE CASE
     Six organizations and two American citizens challenged the constitutionality of the Antiterrorism and Effective Death Penalty Act of 1996 which authorizes the Secretary of State to designate certain groups as foreign terrorist organizations and subsequently orders that “whoever” “knowingly provides material support or resources” to such organizations, “or attempts or conspires to do so”, may be fined, imprisoned (up to 10 years), or both. “Material support” is broadly defined to include: financial support, lodging, training, weapons, identification, communications equipment, personnel, and other physical assets; “except medicine and religious materials.” Petitioners at bar wish to provide support to two such organizations, the Kurdistan Workers’ Party (PKK) and the Libertarian Tigers of Tamil Eelam (LTTE); both of which have been designated as a foreign terrorist organizations. Petitioners contend that any congressional prohibition restraining such efforts, presumably based on upon their association with the organization alone, would constitute a constitutional violation of their First Amendment rights to association and freedom of speech. Further, the petitioners claim that the Secretary of State’s authority to designate such organizations as terrorist is overly overbroad, and the Act itself is constitutionally vague.
     ISSUE IN THE CASE
     May Congress prohibit material support to foreign terrorist organizations, or is such a prohibition inconsistent with the First Amendment freedoms of expression and association?
     HOLDING
     The Court uphold a limited preliminary injunction against the US government on vagueness grounds, finding support that certain terms within the Act, namely “training” and “personnel”, were inherently vague. However, the Court disagreed with the petitioners regarding their First Amendment claims; finding a distinct difference existed between mere “advocacy” through political expression (always protected by the First Amendment) and the notion of “material” support.
     ANALYSIS
     The petitioners claim that the Act violates their freedom of association is based either on a misreading of the Act or an overly broad interpretation of Claiborne (see NAACP v. Claiborne Hardware Co., 458 US 886 (1982) – holding that “for liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims”). Nothing in the Act prohibits membership or association with a foreign terrorist organization, nor does anything prohibit praising or advocating such an organization. Rather, the Act specifically prohibits the giving of material support – and no constitutional right exists to provide terrorists, or any group for that matter, with the resources to buy and use weapons and explosives for illegal activity. In response, the petitioners counter that American-Arab Anti-Discrimination Comm. v. Reno, 70 F. 3d 1045 (9th Cir. 1995) (and to some extent Claiborne) explicitly requires… that to punish advocacy, the government must show that the donor specifically intended for his contributions to further some illegal cause or activity. The Court, however, disagrees once again, drawing a sharp distinction between advocacy and material support. Advocacy is the promotion of certain views either through membership or actual voicing of opinions; while the giving of material support is a right less protected in certain contexts. Further, the petitioners contend that the giving of material support, particularly in the form of monetary contributions, is in itself a form of political expression; and to punish such political expression is a clear First Amendment violation. They base this argument upon the presumption that the PKK and Libertarian Tigers are not only terrorist organizations, but also political advocacy groups. The petitioners’ reliance on Buckley v. Valeo, 424 US 1 (1976), however, is misplaced. There, the issue involved monetary contributions to organizations whose primary purposes were political advocacy – therefore, monetary contributions were used to promote, say, a person running for election and the resources needed for electioneering. “Under those circumstances, money, and the things money can buy, do indeed serve as a proxy for speech and demonstrate one’s association with the organization.” However, the Act under consideration is not aimed at regulating contributions for the purposes of mere political expression; but rather, aims to prohibit certain expressive conduct that leads, very often, to illegal activities. No one is suggesting that you cannot advocate a terrorist group on your local street corner, or even carry an Al Qaeda membership card. Certainly if the government can regulate contributions to political campaigns, then it would certainly follow that the government could place tighter restraints, including an all-out prohibition, on funds that lead to illegal activity. Therefore, since the goal is prohibiting certain conduct, not prohibiting mere expression or association, the breadth of the Act must only pass a constitutional intermediate scrutiny standard, not the higher standard of strict scrutiny; which would be appropriate if the government’s aim was to prohibit forms of pure expression, advocacy, or association, and the Antiterrorism Act passes this intermediate test with relative ease.

Besides the Boim v. Quranic Literacy Institute (2002) case, a civil action which made precedent by finding the Holy Land Foundation for Relief and Development to simply be a "front" for Hamas in the United States, there have been numerous other instances of deceptive, so-called "intercharity organizations" which have either been designated terrorist financiers by the US Treasury Department or become the ongoing target of investigations. Emerson (2006) provides a list of "the seven" which have achieved some degree of notoriety:

Global Relief Foundation challenged its "freeze" order (i.e., Treasury Department seizure of all assets) in court, but a provision of the Patriot Act upheld the freeze on grounds that freezing did not constitute punishment and that, therefore, criminal process protections did not apply. Search and seizure of such organizations as well as freeze orders are also based on secret information submitted ex parte in camera. The civil liberties issue here is whether the government should be allowed to drive certain businesses out of business without filing any criminal charges.

The basis for prohibitions against "trading with the enemy" go back to the 1917 when the Trading with the Enemy Act (TWEA) governed most sanctions in times of war or whenever a U.S. President declared a national emergency. Congress changed this in 1977 to limit TWEA's application to periods of declared wars, and created IEEPA (International Economic Emergency Powers Act) to handle national emergencies. IEEPA gives the President power to regulate, nullify, prevent, or prohibit any form of economic transaction that provides "service" to the benefit of terrorists. John Phillip Walker Lindh, aka "the American Taliban" was convicted of trading with the enemy under this law (U.S. v. Lindh 2002) for donating or supplying his combatant services to al-Qaeda. Hence, the language of IEEPA is sufficiently broad to cover non-economic transactions. The lengths to which IEEPA can be extended are quite broad. Take the example of Mohammed Salah, an alleged Hamas operative in Chicago and the only American citizen to be listed as a specially designated terrorist. Salah was arrested and convicted in Israel for distributing money to the families of jailed Hamas leaders. After he served his five-year sentence in Israel, he returned to the U.S., where after his special designation in 1995 (with no trial, no notice, and no right to appeal), it became a crime for anyone in the U.S. to have any transactions whatsoever with him. Literally applied, the designation barred him from buying a loaf of bread, going to a doctor, or even hiring a lawyer. In short, the law provided for a kind of internal banishment or exile.

So-called "innocent" material support was an issue considered in the case of Humanitarian Law Project v. U.S. DOJ (HLP II) (2003). In that case, it was a second try for the government to argue that it would seek to convict someone for donating money to a terrorist organization even if he or she did NOT know the organization was related to terrorism. The government sought the position that it would be no defense if a defendant thought the group was only engaged in charity or humanitarian work. The Court (9th Circuit) thought differently, vague though it may be, which may or may not a better elaboration that the initial HLP I case (discussed below). Here's their reasoning. The right to association must be safeguarded, and so, charitable contributions (like alms giving or dropping coins in a cup at a store) may constitute an "act" of supporting terrorism, but "advocacy" of such terrorism may not be present. The crime in question should not be like statutory rape, where under any intermediate scrutiny standard, the government has a substantial interest in protecting children by making this a strict liability offense. Instead, the government must suffer the burden not simply of proving that an organization is so tainted by terrorism that any and all contributions to it are suspect, but prove beyond a reasonable doubt that the donor had knowledge the organization was involved in unlawful activities or was so designated by the government. There is no associational right which allows contributions to terrorist organizations, and the law must be sufficiently clear so as to allow persons of ordinary intelligence a reasonable opportunity to know what is prohibited. Charitable contributions are not inherently dangerous. The giving of money is not as strong an expression of support as pure speech or other expressive activity. Encouraging others to give money might be deemed "advocacy" but it would depend upon what reasonable steps existed for the person to know they were promoting a terrorist organization.

Providing direct material support in terms of "resources," "training," or "expert advice and assistance" is illegal if it occurs in proximity to terrorism. Sometimes called "proximity crime," direct material support to a designated terrorist organization is illegal under 18 USC. 2339A and 2339B (the "material support" laws). More indirect material support is illegal under 18 USC 2339 via the Anti-Terrorism Act (18 USC 2333). These laws have been challenged in court and amended by legislatures, but the basic idea stands -- that designation of a group as a Foreign Terrorist Organization (FTO) places everyone on notice that even mere (or indirect) support of any such organization is unlawful. Some courts, the 9th Circuit for example, in Humanitarian Law Project v. Reno (2000), have been troubled by the law's overly vague language. "Training" is a worrisome term because it could conceivably sweep in benign academic instruction, and "expert advice and assistance" could very well include free speech advocacy of some cause. The government's official interpretation is that any such training and expertise should be of a technical or scientific nature. This still raises questions about the right of association (i.e., "guilt by association"), and as McCormack (2005) puts it, also raises questions about vagueness and overbreadth as well as issues of due process regarding the methods of designating some organization terrorist in the first place.

The material support laws are a plaintiff's darling, much as conspiracy is a prosecutor's darling. Like conspiracy, they only require proof of a lower level of mens reas or mental state, usually "knowingly." Knowingly is a lesser standard of proof than purposely precisely because it doesn't require conscious or well-thought out behavior. Knowingly only requires awareness that some action could lead to a certain result. Proof of "but for" or necessary causation is unnecessary. For example, somebody could do something to draw attention to a cause they think is not directly related to terrorism, say to draw attention to some criticism of government. In this scenario, all an attorney has to do is get the defendant to admit that what they did, perhaps remotely or in the back of their mind, "might" have helped out terrorism. If that can be proven, as any attorney worth their salt can do, the judge is then required to inform the jury at closing that proof of the requisite mental state has been reached. The moral culpability of the knowing actor can be inferred to be the same as the intending actor. Further, according to the Holy Land Foundation re-trial of 2008 (the first trial used too much secret evidence kept from the defense), material support for terrorism can be proven by showing a substantial likelihood that some act in support of the ultimate goal of terror had a likely supporting role. Judge Posner in that case also added a brilliant ruling on "recklessness" as a standard of scienter for liability. This is a huge boon to plaintiffs because it removes the burden of having to trace dollars or prove that support directly led to some terrorist act. Cash can be the equivalent of a car bomb, and the typical defense argument that cash is fungible (useable for any purpose) is rendered relatively meaningless.

As far as actus reus is concerned, material support doctrine carries a presumption of "substantial facilitation" which involves furthering the "carrying out" of terrorist acts. In practice, this means that the carrying out of preparations for a terrorist act will suffice, and an "intending actor" in receipt of support is all that's needed. FTO designation easily takes care of that requirement. Also, because material support is a substantive offense, it can be combined with conspiracy charges. Hence, the temptation is to overreach and "throw the book" at defendants. Here, there is some possibility of danger to civil liberties because of this temptation. It would be unfair to use such laws to preempt preparation for terrorism before it can be reliably determined that terrorism (and not say, religious zealotry) is involved. This is not that much of a concern with 2339A which spells out specific crimes "associated with terrorism," but it is with 2339B which criminalizes all but medical and religious support to an FTO which may very well be a valid charity. It is important to remember that use equals provision under material support doctrine, so hypothetically, letting a terrorist use your cell phone to presumably call their doctor when they're really calling in another attack, is a classic example of when the medical exception doesn't hold. Likewise, religious speeches given by imans who fire up a flock, and some of the flock later carry out terrorist attacks, represent situations where the religious exception doesn't hold. Most experts think, however, the main civil liberties issue is the due process one, which is obviously relevant since there is little or no opportunity for an organization being considered for FTO designation to be heard in advance, opportunities for judicial review are seriously limited, and a defendant in a criminal action under 2339B is normally precluded from raising any question about the validity of an organization's designation, except when according to reasoning in People's Mojahedin Organization of Iran v. Department of State (2003) and National Council of Resistance of Iran v. Department of State (2004), such FTOs have entered the territory of the United States and established substantial connections with the U.S. to be entitled to Fifth Amendment due process rather than administrative law treatment as non-sovereign foreign entities under international law. In the end, material support doctrine relies heavily, perhaps too heavily, upon the right to formally designate organizations as terrorist.

PRINTED RESOURCES
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Holzer, H. & E. (2006). Aid and Comfort: Jane Fonda in North Vietnam, 2e. NY: McFarland.
McCormack, W. (2005). Legal Responses to Terrorism. Dayton, OH: LexisNexis Matthew Bender.
McCormack, W. (2007). Understanding the Law of Terrorism. Newark, NJ: LexisNexis Matthew Bender.
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Last updated: Oct. 18, 2009
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