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Material Support.

A Summary by Mary DeRosa

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)).

Criminalizing Speech: The Material Support Provision
by David Cole

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.

The Patriot Act's prohibition on providing "expert advice or assistance" to proscribed groups amends a preexisting law, enacted as part of the 1996 Anti-Terrorism and Effective Death Penalty Act, which broadly proscribed the provision of "material support" to designated "terrorist organizations." The Patriot Act provision's infirmities build on the problems with the 1996 law. That law imposes guilt by association, because it holds people liable not for engaging in, conspiring to engage in, or even aiding or abetting terrorist activity, but instead for supporting even wholly lawful and nonviolent activities of a proscribed group. Had this law been in effect in the 1980's, the tens of thousands of Americans who supported the African National Congress's largely nonviolent anti-apartheid work could have faced criminal prosecution, because the State Department designated the African National Congress a "terrorist" organization until it came to power in South Africa. The Patriot Act exacerbates the constitutional infirmities in the material support statute, because it explicitly singles out pure speech—"expert advice"—for criminal prohibition.

The Patriot Act provision violates four constitutional principles. First, it contravenes the First Amendment by criminalizing speech without satisfying the constitutional requirements set forth in Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969). In Brandenburg, the Supreme Court held that the government may penalize speech only if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 395 U.S. at 447-48. The USA Patriot Act prohibition contains no Brandenburg limitation, but penalizes all "expert advice and assistance," without regard to whether it has anything to do with lawless activity, much less whether it is intended and likely to produce imminent illegal conduct.

Second, the provision violates the First Amendment's right of association, for it criminalizes the provision of advice only when offered to certain disfavored political organizations. Thus, it is perfectly lawful to provide unlimited "expert advice and assistance" to the Palestine Liberation Organization and the Irish Republican Army, because those groups have not been "designated." But if the same advice is offered to the Kurdistan Workers' Party, the speech is criminalized. What triggers the penalty is not the advice itself, but to whom it is offered. This is guilt by association.

In a series of cases involving the Communist Party and other groups, the Supreme Court has consistently held that the only way to avoid guilt by association when punishing someone for his connection to a group is to require proof that the individual "specifically intended" to further the unlawful ends of the group. See, e.g., Scales, 367 U.S. 203 (1961). Yet the government maintains that the "expert advice" prohibition requires no such showing of intent to further illegal activities. On this view, a human rights activist who seeks to offer a group expert advice in human rights advocacy—in order to persuade the group to use peaceful rather than violent means to further its ends—would face a fifteen-year prison sentence, and would have no defense even if he could prove that his support in fact reduced the group's reliance on violence.  See HLP, 309 F. Supp.2d 1185.

Third, the "expert advice or assistance" ban violates the Fifth Amendment's requirement that criminal penalties must be based on "personal guilt." As the Supreme Court has explained,

In our jurisprudence guilt is personal, and when the imposition of punishment on ... conduct can only be justified by reference to the relationship of that .... conduct to other concededly criminal activity ... that relationship must be sufficiently substantial to satisfy the concept of personal guilt.

Scales, 367 U.S. at 224. In order to satisfy the "personal guilt" requirement, the Court reasoned, the government must show that the defendant intended to further the group's illegal activities, the same showing required to satisfy the First Amendment. In keeping with this view, even the most expansive federal criminal laws that impose liability based on one's support of another's illegal activity—including RICO, conspiracy laws, and aiding and abetting statutes—all require some proof of intent to further some illegal activity. Yet the government maintains that the material support statute contains no such requirement.

Finally, the ban on providing "expert advice or assistance" is unconstitutionally vague. As one court has already held, the term fails to provide the ordinary person with any real guidance as to which advice is permissible and which is proscribed. HLP, 309 F. Supp.2d 1185. In the Intelligence Reform and Terrorism Prevention Act of 2004, Congress sought to address this concern by defining "expert advice or assistance" as that advice or assistance which is based on "specialized knowledge." But that definition does no more than offer a slightly more wordy synonym for "expert." It provides no additional clarity, and in fact exacerbates the statute's vagueness, because now an individual must guess as to whether the knowledge that makes his advice "expert" is "specialized" or not.

The statute's defenders often respond that all support for "terrorist organizations," even that which is targeted exclusively at lawful, nonviolent activities, may free up the organization's resources for terrorist ends. On this view, the provision of expert advice on nonviolent resistance may be criminalized, because it allows the organization to spend resources it would otherwise have spent learning about nonviolence on guns, bullets, or bombs. That argument plainly proves too much. Congress itself does not believe it, for it expressly permits individuals to donate unlimited amounts of medicine and religious materials to designated groups. Moreover, if that view were accepted, it would be unconstitutional for the state to offer any assistance whatsoever to private religious schools, because even assistance strictly limited to secular purposes may free up resources that can then be used for religious ends.

Defenders similarly argue that the provision of "material support" is different from membership per se, and therefore hinging a criminal penalty on material support does not amount to guilt by association. But if that were true, all of the McCarthy era laws found invalid for imposing guilt by association could have simply been rewritten to penalize not membership, but the payment of dues, or the volunteering of one's time. If the right of association means only the right to join a group that one has no right to support in any material way, including through one's speech, the right would be an empty formality.

Cutting off funding for terrorist activity is unquestionably a legitimate end. But it must be pursued through legitimate means. We have effectively targeted and prosecuted international drug cartels and organized crime organizations without dispensing with the principle of personal guilt and relying on guilt by association. We can and should be able to use similar tools to target those who support terrorism. And we should not be treating as a terrorist a human rights activist who seeks only to provide advice on nonviolent resistance. Yet that is what Section 805(a)(2), as interpreted by the government, does.

Teaching a Terrorist How to Build a Bomb
is Not Free Speech
by Paul Rosenzweig 

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.

And the need for greater prosecutorial authority is palpable. For money is fungible. And terrorist organizations do not respect the legal niceties of distinct corporate structures. As a consequence, contributions to the humanitarian aspects of an organization are readily "passed through" to the terrorist arms of related organizations. If this indirect support for terrorism were all that we sought to prevent, the material support laws would be justified.

But the reality is far more insidious—for "humanitarian" assistance by terrorist organizations is often just a code word for efforts to propagate terrorist ideology. Through seemingly beneficial activities like schooling, terrorist organizations teach their vision and win the loyalty of those whom they would control. Truly humanitarian organizations would, one would think, disassociate themselves from the terrorist reality, rather than support it—but alas they do not.

Thus, the idea that there are "wholly lawful and nonviolent activities of proscribed groups" is, I submit, a non sequitur. Proscribed groups, by their nature, have no "wholly lawful" activities—only interests principally intended to further their unlawful ends. Even in distributing tsunami aid in Sri Lanka following the recent disaster there, the Tamil Tigers, who have engaged in a brutal, vicious and violent rebellion for more than a dozen years, linked their humanitarian relief efforts to their unlawful terror campaign against the Sri Lankan government. To separate the humanitarian from the terrorist is an artificial distinction only a lawyer could accept.

Despite the agreed upon necessity of defunding truly terrorist organizations, my colleague in this debate believes, that the law goes to far in attempting to achieve this end. The arguments against Section 805 take three basic forms—that it is discriminatory; that it is vague; and that it is overbroad. The opening essay in this series makes all three arguments—but in the end, they are not persuasive.

Consider first, discrimination. To be sure, terrorism is a term without rigid definition. And the opening essay in this exchange makes much of the disparate treatment given different terrorist organizations—contrasting the treatment of the Kurdistan Workers' Party with the Irish Republican Army today. But the disparity derives not from a desire to suppress disfavored political views—it derives directly from the objective reality of current affairs. No less an authoritative group than the 9/11 Commission has identified the threat to America as that of "radical Islamists" and their allies. Our policies should recognize that reality—and only a hyper-skeptic of government would see in drawing that distinction a purely political motivation. Indeed, so long as those organizations designated have a right to contest their designation in court (as they do) there exist constraints on the government's ability to arbitrarily act for political reasons.

My colleague also challenges the law as vague. And we can agree that criminal prohibitions must give a person of ordinary intelligence "fair warning" of criminality. But the law does not need to define an offense with mathematical certainty, it need only provide "relatively clear guidelines as to prohibited conduct." Posters N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994). This doctrine recognizes that some exercise of prosecutorial discretion in choosing cases is inevitable—all that the Constitution requires is that Congress, through the text of the statutes "establish[es] minimal guidelines to govern law enforcement." Kolender v. Lawson, 461 U.S. 352, 358 (1983).

The terms chosen by Congress—"personnel," "training," and "expert advice"—are sufficiently clear in their meaning (especially after their amplification in the recent Intelligence reform bill) to provide fair warning to a person of reasonable intelligence as to the potential that his or her conduct falls within the statutory prohibition. The term "personnel," for example, generally describes employees or others working affiliated with a particular organization and working under that organization's direction or control. It is used in numerous other places in the criminal code. E.g. 18 U.S.C. 7(9)(B) ("United States personnel" assigned to a foreign mission or entities); 18 U.S.C. 31(5)(A) ("ground personnel" preparing an aircraft for flight); 18 U.S.C. 207(c) ("senior personnel" of Executive Branch and independent agencies).

Similarly, the ban against providing "training" to designated foreign terrorist organizations is not unconstitutionally vague. The verb "train" is commonly understood to mean: "To subject to discipline and instruction for the purpose of forming the character and developing the powers of, or of making proficient in some occupation." It boggles the mind to suggest that Congress cannot proscribe teaching foreign terrorists how to become better terrorists—yet if the logic of the vagueness argument is followed, that would be the result. And, the same is true of allegedly vague phrase "expert assistance." It is a common concept in the law -- for example, Rule 702 of the Federal Rules of Evidence defines "expert" testimony to be based on "scientific, technical, or other specialized knowledge." The Oxford English Dictionary offers a similar definition: "One whose special knowledge or skill causes him to be regarded as an authority; a specialist." To deny that those words have meaning is to adopt a Sartrean view of meaning that the law generally rejects.

The real fear of critics, it seems, is the problem of overbreadth—that is the fear that the existence of this law will chill legitimate free expression. Again, the fear is theoretically plausible. But even the possibility of individual injustice is not a basis for invalidating the law in all its applications. As the Supreme Court recently said, "there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law—particularly a law that reflects 'legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.'" Virginia v. Hicks, 123 S. Ct. 2191, 2197 (2003).

And this, at the core, demonstrates why the challenge to Section 805 should fail. There are no reports of systematic abuse—no public advocates criminalized for their political speech. And the social costs of declaring these laws unconstitutional is potentially catastrophic. The United States has a "legitimate state interest" in controlling the "constitutionally unprotected conduct" of providing material support for terrorism—teaching a terrorist how to build a bomb is not protected free speech.

We cannot afford to stint in our efforts against terrorism based upon unrealized fears. More than a half dozen criminal cases have been brought under the material support provisions of the law. They include cases, like that of Mohmmed Junneh Barbar who was arrested in America while trying to set up a training and recruitment camp to institute a bombing campaign. Others involve defendants who have taken jihad training in Afghanistan, or facilitated communications between jailed terrorists and their supporters overseas.

The material support provisions deal with a new reality—a reality where we cannot afford to wait for the terrorist crime to occur before acting and a reality where the nature of support for terrorists is variable and changing. To accept my colleague's reasoning and deems the statute unconstitutional is to despair of any real ability to address this conduct—and that is, regretfully, a result we simply cannot afford.

If, as George Santayana said, "those who forget history are doomed to repeat it," then it is equally true that "those who are obsessed with history are doomed never to escape it." Those opposed to the terrorist material support provisions of the Patriot Act seem, at times, obsessed with history. Witness the companion essay's dated references to McCarthyism. But we live in a different time now—one where an activist press, public interest groups, Congress, and the courts all make systematic political abuse substantially less likely. The fears are plausible' but they are not reality. More importantly, they are (or ought to be) of no legal moment, since the mere potential for application of an overly broad law is not enough to invalidate it.

Tilting at Straw Men by David Cole

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.

Some Straw Men Are Really Made of Steel
by Paul Rosenzweig

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.