18 U.S.C. 2339B prohibits "providing material support or resources" to an organization the Secretary of State has designated as a "foreign terrorist organization." The material support ban was first passed as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The provision's purpose is to deny terrorist groups the ingredients necessary for planning and carrying out attacks. Congress was concerned that terrorist organizations with charitable or humanitarian arms were raising funds within the United States that could then be used to further their terrorist activities. The provision outlawed any support to these groups, irrespective of whether that support was intended for humanitarian purposes.
The original definition of "material support or resources" in the AEDPA included providing tangible support such as money, goods, and materials and also less concrete support, such as "personnel" and "training." Section 805 of the PATRIOT Act expanded the definition to include "expert advice or assistance." Some courts have found the terms "personnel," "training," and "expert advice or assistance" to be unconstitutionally vague. The courts have reasoned that enforcement of these provisions has the potential to criminalize First Amendment-protected speech.
The Intelligence Reform and Terrorism Prevention Act of 2004, signed into law in December, 2004, responded to these courts by providing more detailed definitions of the terms "personnel," "training," and "expert advice or assistance" (section 6603(b)). The Intelligence Reform Act also amended the material support provision to require that to be found to have provided "material support or resources" to a designated terrorist organization, a person must have "knowledge that the organization is a designated terrorist organization ... that the organization has engaged or engages in terrorist activity ... or that the organization has engaged or engages in terrorism" (section 6603(c)(2)).
Defenders of the USA Patriot Act often assert that there have been no abuses under the Act. That all depends on what you consider an abuse. In the name of cutting off "material support" for terrorist organizations, section 805(a)(2) criminalizes pure speech, penalizing the provision of "expert advice" to proscribed organizations, even where the advice has no connection whatsoever to any terrorist activity. It bans speech without requiring any of the showings that the Supreme Court has deemed essential before speech may be constitutionally punished. It should not be surprising that this was the first provision of the Patriot Act to be declared unconstitutional Humanitarian Law Project v. Ashcroft, (HLP), 309 F. Supp.2d 1185, 1200 (C.D. Cal. 2004).
Moreover, the abuses are not hypothetical. This provision has already served as the basis for the prosecution of a college student for running a website that happened to have links to other websites which in turn featured speeches by Muslim sheikhs advocating violent jihad. The prosecution's theory was that the student was providing material support in the form of "expert advice or assistance" by running the website and linking it to such statements. On the government's view, it did not need to prove that the student intended to further violence of any kind by including these links on his website. On that understanding of the law, the New York Times could be prosecuted for featuring a link to Osama bin Laden's latest taped statement in connection with a story about the statement. An Idaho jury, apparently more attuned to First Amendment values than the US government, acquitted the student.
Ironically, when Congress adopted this provision it labored under the impression that it was drafted much more narrowly than the government now treats it. The House Committee on the Judiciary reported that, "The definition of providing material support to terrorists in title 18 is expanded to include providing 'expert advice or assistance.' This will only be a crime if it is provided 'knowing or intending that [the expert advice or assistance] be used in preparation for, or in carrying out,' any 'Federal terrorism offense.—" H.R. Rep. No. 107-236(I) at 71 (2001) (emphasis added). Similarly, the Section-by-Section Analysis of the USA PATRIOT Act presented to the Senate stated that the amendment to the definition of material support would "prohibit providing terrorists with 'expert advice or assistance,' such as flight training, knowing or intending that it will be used to prepare for or carry out an act of terrorism." 147 Cong. Rec. S10990-02, *S11013 (2001) (emphasis added). Yet the government has taken the position that the statute criminalizes the provision of all "expert advice or assistance," even if the advice or assistance has no connection whatsoever to any act of terrorism. Thus, putting aside its serious constitutional defects, this provision should be amended to reflect the intentions of the Congress that initially adopted it.More . . .
The material support provisions of the Patriot Act (Section 805) are not new. They are derived from pre-9/11 law and are designed, at the core, to prevent individuals from providing money, weapons, and military training to organizations, like Al-Quaeda, that intend harm to American citizens.
Poorly executed, Section 805 might trench on the fundamental right to openly criticize the government. It could be implemented in a manner that would impinge on First Amendment freedoms in its effort to achieve the legitimate end of cutting off funding and material support for terrorist organizations. But fear of that possibility is a far cry from reality.
And the reality is that such concerns are more theoretical than actual. To be sure, some organizations contend that there are humanitarian aspects to their work and that their humanitarian efforts are distinct from the allegedly terrorist acts of related organizations. They thus argue that the prohibition on material support impinges on First Amendment freedoms of speech and association for their supporters, allowing them to be criminally prosecuted when all they are doing is providing material support to the humanitarian aspects of the organization.
The law, however, understands and respects this concern. Congress recognized the problem when it first passed the material support provisions. Its made clear that "[t]he First Amendment protects one's right to associate with groups that are involved in both legal and illegal activities." That report emphasized that the contemplated ban on material support "does not attempt to restrict a person's right to join an organization. Rather, the restriction only affects one's contribution of financial or material resources to a foreign organization that has been designated as a threat to the national security of the United States." In short, Congress has carefully constructed a balanced and nuanced approach that both recognizes the liberty interests at stake and understands the necessity of enhanced prosecutorial authority.
The title of Paul Rosenzweig's defense of the material support statute is telling: "Teaching a Terrorist How to Build a Bomb is not Free Speech." Has anyone argued that teaching terrorists to build bombs is protected speech? No. As my critique made clear, supporting a terrorist organization with intent to further its illegal activities is not protected by the First Amendment, and can and should be criminalized. If the material support statute stopped there, it would pose no constitutional difficulties.
Similarly, if the statute made it a crime to give money to terrorist organization's lawful activities with knowledge or intent that the money will be "passed through" to the group's terrorist arm, as Rosenzweig puts it, or with knowledge or intent that the organization's "humanitarian activities" are used to advance terrorist activity, it would pose no constitutional difficulty. That is essentially the theory behind the anti-racketeering law's criminalization of fronts used to launder or cover up illegal activities, and that law does not trench on First Amendment freedoms.
But the material support statute does not stop there. It criminalizes virtually all support of groups designated terrorist, even if the defendant can prove that his support was not intended to further terrorist activities, did not in fact further any terrorism, and actually reduced terrorist activities by encouraging the use of nonviolent means. The analogy would be a racketeering law that made it a crime to support wholly lawful activities of an entity that also engaged in crime, even where the supporter had no intent to further the enterprise's illegal activities. Such a law, the Supreme Court has repeatedly made clear, would impermissibly impose guilt by association.
Rosenzweig relies, as do all defenders of the statute, on the contention that money is fungible, and therefore support even of the lawful activities of a designated group theoretically frees up resources that can be used for illegal ends. But Congress itself does not take that view, as it expressly allows unlimited donations of very fungible medicine to designated groups, and also allows the Secretary of State to approve the provision of expert advice, training, and personnel to designated terrorist groups. If Rosenzweig's fungibility principle held, the ban should have no exceptions.
In addition, as noted in my opening essay, fungibility proves too much,. If accepted, it would never be permissible for a state to provide any support to religious schools, because any support, even of wholly secular functions, frees up money that the school can then spend inculcating religion. Similarly, it would be constitutional to ban all donations to Greenpeace, Operation Rescue, the Socialist Workers Party, or any other entity that has ever engaged in any illegal activities, without any showing that the donor sought to further the group's illegal as opposed to legal ends. Finally, the "fungibility" argument would make the Supreme Court's prohibition on guilt by association a meaningless formality. To say that one has the right to join a group, but that it is a crime to provide the group with any support whatsoever, whether through dues, contributions, or even volunteering one's time, is not, as Rosenzweig argues, "a balanced and nuanced approach that recognizes the liberty interests at stake," but a blatant ruse that takes away with one hand what it says it is preserving with the other.
My colleague David Cole says I am destroying a straw man. Of course, he agrees, teaching a terrorist to build a bomb is not protected free speech. And, of course, he argues, giving money with the intent to support terrorist activities can be proscribed. These are, he argues, not the problem—rather, in Cole's view, the problem is that the fungibility argument proves too much (since Congress itself did not prohibit all fungible assistance to terrorist organizations) and with the potential prosecution of those who can prove that their money was not used for terrorist acts. Neither argument persuades.
With regard to the fungibility argument, this is, with respect, just another form of the common (and unpersuasive) argument that a legislature is not competent to make distinctions within classes of conduct. Congress may differentiate between medicines and money, judging the potential for abuse of the latter lower, and the humanitarian benefits greater. Cole simply repudiates that judgment. But international law has long recognized this distinction. As long ago as the 1907 London Convention on blockades, the international community recognized the difference between absolute contraband, conditional contraband (whose prohibition was evaluated in context) and non-contraband (that could never be blockaded). Congress, by extending the concept of contraband to money has merely recognized in the terrorism context that which we have long understood in the criminal context of our money laundering laws—money is the lifeblood of illegal enterprises.
More fundamentally, this argument is a red herring. For if Cole thinks that the distinction between medicine and money is untenable, it would be a sufficient answer for Congress to prohibit all support to banned organizations, including medicines. Yet one strongly suspects that Cole would reject that response.
Rather, the main dispute lies in Cole's argument that the law permits potential prosecutions where the money provided was not used for terrorist acts. The argument has several flaws.
Most saliently, the likely scope of this objection is the null set. Given the fungibility of money, unless one can prove that the recipient organization engages in no terrorist acts whatsoever (a situation which is not of concern to either Cole or I, inasmuch as those organizations are not on the prohibited list) then it is impossible to prove that none of the money was converted to illegal use.
More importantly, this argument is not one for the blanket invalidation of a law that has proved useful in any number of perfectly reasonable prosecutions. The fear of mistaken prosecution is a theoretically legitimate one—but given the infrequency with which individual injustice is likely to occur we must recognize, as the Supreme Court has, that potential overbreadth typically does not prohibit all enforcement of a law.
Finally, Cole's argument about protected expenditures of money on behalf of "good speech' simply proves too much. If his argument were correct then it would be unlawful for the United States to embargo a country entirely, as we did with South Africa. Surely, one would argue, conflict resolution training money should be allowed to the apartheid rĂ©gime. Yet, nobody made that argument in the 1980s and to repeat it today is to realize how hollow it sounds. There are some organizations and nations that are beyond the pale—and the material support laws appropriately recognize that fact.