When Peace Became Illegal:

An Examination of the US Most Utilized and Paradoxical Anti-Terrorism Statute

Teaching a terrorist how to build a bomb and teaching a terrorist how to petition to the United
Nations should not be held to the same legal standard, yet thats exactly how the current system
functions under the federal material support statute. This paper calls for a reformation of the law
that leaves a dangerously open door to First Amendment violations and detrimentally hinders
peace building and humanitarian efforts.

Izabella Zucker
Dr. Lee - JRLC 5040H
15 December 2015

Table of Contents
Introduction..........3
I. Literature Review
a. National Security v. Civil Liberties.5
b. Foreign Terrorist Organization Designation7
c. Material Support Law..9
d. Holder v. Humanitarian Law Project....12
II. Implementation of the Material Support Law
a. Prosecution.15
b. Punishment.17
III. Effect on Peacemaking and Humanitarian Groups..18
IV. Illegal v. Legal Speech21
V. Recommendations.24
VI. Conclusion...28
VII. Endnotes.....30

Introduction
Introduced at the behest of the US intelligence community in 1994, the antiterrorist material support law has nurtured a climate of fear, cost countless lives and
raised an abundance of First Amendment concerns. Iterated in 1996 and again in 2001 as
the PATRIOT Acts 18 U.S.C.S. 2339 A and 2339B, this law bans the provision of
material support or resources to designated foreign terrorist organizations (FTOs) and is
punishable for up to 20 years in prison.1 Listed provisions include currency, weapons,
financial services, explosives, and a roster of other reasonably prohibited properties and
services.1 This same statute also lists training, expert advice or assistance, and
personnel as illegal provisions, walking a fine line along protected political speech in
relation to an FTO.1
The landmark Supreme Court ruling on this contested statute occurred in 2010 in
Holder v. Humanitarian Law Project. Humanitarian Law Project, a US-based nonprofit,
sought to support two designated FTOs the Kurdistans Workers Party (PKK) and the
Liberation Tigers of Tamil Eelam (LTTE) with lawful, peaceful international law
support.2 Plaintiffs, which included the HLP, other nonprofits, respected physicians and
retired judges, sought to train and advise the PKK in Turkey in methods for peacefully
resolving its disputes with the Turkish government and in carrying out human rights
monitoring in Kurdish parts of Turkey.2 It also sought to engage in political advocacy on
behalf of Kurds in Turkey and teach PKK members how to petition to various
representative bodies such as the United Nations for relief.2 In respect to the LTTE in Sri
Lanka, plaintiffs sought to offer medical and disaster relief assistance after the
devastating 2004 tsunami, as well as assist with peacemaking and human rights efforts.

The plaintiffs claimed that they sought to facilitate only the groups lawful, nonviolent
purposes and argued that 2339B was unconstitutionally vague, overbroad and violated
their First and Fifth Amendment rights.2
The complex case concerning HLP had been festering for 12 years before
reaching the nations highest court. It was heard three times in Los Angeles district court,
beginning in spring 1998 with Humanitarian Law Project v. Reno. The case was then
heard three times in the United States Ninth Circuit Court of Appeals, beginning in 2004
with Humanitarian Law Project v. Ashcroft.3 In all six hearings, the courts sided with the
HLP on its assertion that the material support law is overly vague, allowing too much
discretion to government officials to decide who to prosecute on grounds of material
support to FTOs. In 2010, the case made its way to the United States Supreme Court. To
much dismay, the Supreme Court sided with the government, ruling 6-3 to uphold the
material support statute. It rejected arguments that the statute is unconstitutionally vague
and that it violated the plaintiffs First and Fifth Amendments.2 Chief Justice John
Roberts stated that the statute promotes a compelling government interest to fight
terrorism and that the plaintiffs proposed lawful activities could inadvertently aid the
FTOs illegal objectives.2 Since then, this ruling has unleashed a wave of criticism from
various humanitarian and civil liberties groups.
This paper argues that the material support law direly needs reformation in
addition to FTO designation and non-statutory reforms. The paper explores the contextual
and constitutional issues surrounding the material support law, the Holder v. HLP case
and the subsequent aftermath. It begins with a scholarly literature review, organized
thematically, beginning with i) the broader issue of national security and civil liberties in

the post-9/11 era, ii) FTO designation, iii) the material support law and iv) the Holder v.
HLP Supreme Court ruling. The paper seeks to answer how the US implements the
material support statute and punishes violators of the law. It seeks to explore the laws
harmful effects on peacemaking and humanitarian groups, as well as clarify what speech
constitutes illegal material support and what does not. Finally, the paper offers a set of
recommendations for moving forward as new material support cases emerge and terrorist
threats evolve.
Part I. Literature Review
A. NATIONAL SECURITY, CIVIL LIBERTIES AND THE PATRIOT ACT
The 2004 Duquesne Law Review article by Paul Rosenzweig entitled Civil
Liberty and the Response to Terrorism addresses the importance of achieving a proper
balance between freedom and order. In wartime, reason and history both suggest that this
balance shifts in favor of order in favor of the government's ability to deal with
conditions that threaten the national wellbeing. Many caution against repeating past
excesses, which lead to over-zealous response. One such example that Rosenzweig
explores occurred in 1917 when the US entered World War I. During the war, federal
authorities acting under the aegis of the Espionage Act prosecuted more than 2,000
people for their opposition to the war. He refers to the common conception that current
activities resemble a downward spiral towards diminished civil liberties. A better view of
history, he argues, shows that the balance between liberty and security is more like a
pendulum that gets pushed off-center by significant events, such as those of September
11th.4

He goes on to address the current threats to protected First Amendment advocacy.

He explains the expanded FBI investigative guidelines that authorize FBI agents to open
up anti-terror investigations whenever information warrants. The guidelines now allow
FBI agents conducting such investigations to do so in any public forum, allowing agents
to attend anti-war rallies or prayer at mosques in their discretionary prosecution
endeavors. In relation to terrorism threats, investigative practices, if advanced too
forcefully, run the substantial risk of chilling protected speech, impinging upon
fundamental constitutional liberties. This does not mean that this risk means
abandonment of the program especially not in light of the potentially disastrous
consequences of another 9/11. However, fairly stringent steps are necessary to provide
the requisite safeguards for minimizing inadvertent or abusive infringements of civil
liberty in the first instance.4
Daniel Farber opens his 2008 book Security v. Liberty echoing Rosenzweig,
stating how threats to national security generally prompt incursions on civil liberties.
Like Rosenzweig, he backs his assertions with history, stating how the relationship has
existed since the presidency of John Adams. While the phenomenon is commonplace, the
implications of history in the post-9/11 era are unclear.5
How federal officials obtain access to alleged material support is a pressing issue
this paper seeks to explore. In his book, Farber focuses on information privacy, a key
aspect of civil liberties brought into question by the material support law. He also
examines the role of technologya key player in the balance of security versus liberty.
He states that the discourse on national security is technologically optimistic, that it
improves national security. The opposite is true for civil liberties. Farber explores

whether technology has disrupted the processes in which civil liberties and national
security have been balanced in the US.5
In her 2011 book Taking Liberties, Susan Herman builds upon the
aforementioned works and explains how law-abiding Americans rights are compromised
by antiterrorism strategies like the material support law. She addresses the PATRIOT
Act, which was passed a mere six weeks after 9/11 without any meaningful deliberations
or hearings. She explains how the act empowers administration officials to spy on anyone
with less basis for suspicion and judicial review. She explains how it stretched and
repurposed criminal laws by allowing prosecution for material support of terrorists even
if the person prosecuted did not have any intention of supporting terrorist activity. The
PATRIOT Act also expanded the reach of the Foreign Intelligence Surveillance Act,
initially designed to keep track of Soviet spies, to more easily cover spying on
Americans. Herman poses a series of real-life scenarios: a computer science student
prosecuted for providing material support to terrorists because he served as a Webmaster;
a telecommunications worker whom the FBI conscripted to gather information on
hundreds of thousands of occasions. The information is often gathered from suspects
friends and family, and those interrogated are then ordered not to tell anyone about their
experience on pain of criminal prosecution.6
B. FTO DESIGNATION
The authority to designate an entity a FTO lies with the Secretary of State, who
consults the Attorney General and Secretary of the Treasury in the decision-making
process. Former Secretary of State Albright promulgated the first batch of foreign
terrorist organization designations in 1997.5 Currently, the US State Department lists 60

designated foreign terrorist organizations on its website and has removed 11 groups since
1997.7 A growing body of scholarly discourse actively opposes this tremendous executive
power.
In the Cordozo Public Law, Policy & Ethics Journal, Julie Shapiro argues that the
executive branch should not control the FTO designation process from beginning to end
and advocates for the compelling need to amend the procedure. Even though the 2004
amendments to the statute allow for the Secretary of State to revoke a designation at any
time with or without a petition from the FTO, inertia is likely to sink in and leave the
designation untouched. By allocating review powers to the executive branch and further
removing the judicial branch from the designation process, it is highly unlikely that
erroneous designations will be overturned. Organizations that have challenged the
propriety of their designations in court have repeatedly faced the limited power of
judicial review in the designation statute. Shapiro further argues that the designation
process has become increasingly politicized within the executive branch, as the State
Department picks and chooses which groups to designate as FTOs. She asserts that each
branch of federal government needs an allocation of power in the designation process.8
In his book The War on Terrorism and the Rule of Law, Richard Pious explains
how the FTO designation blankets the often charitable, lawful arms of organizations that
are legally designated FTOs. The PKK, he explains, is not only a resistance movement,
but a social services and relief agency, has educational functions, and protests human
rights violations. It organizes political forums, international conferences and cultural
festivals to bring attention to the plight of the Kurds in Turkey, which compromise one
fifth of the Turkish population. Similarly, the LTTE aids refugees, runs schools and

orphanages, provides social services, and functions as a de facto government in war-torn

areas. It fights human rights abuses and discriminatory treatment by the Sinhalese, the
governing body of Sri Lanka.9
In her book Silencing Political Dissent, Nancy Chang poses a provocative truth.
She argues that if FTO designation had been a practice in the 1970s or 1980s that Nelson
Mandela and the African National Congress would be listed as a FTO during the struggle
to end apartheid. Powerful food for thought.10
C. MATERIAL SUPPORT LAW
Section 18 U.S.C.S. 2339 A and 2339B enumerate the legal complexities of
providing material support. According to the statute, whoever knowingly provides
material support or resources to a FTO, or attempts or conspires to do so, shall be fined or
imprisoned up to 20 years, and if the death of any person results, shall be imprisoned for
any term of years or for life. To violate the statute, a person must have knowledge that
the organization is a designated FTO or that the organization has engaged or engages in
terrorist activity or terrorism. 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 and transportation. Amendments to the
statute have more closely defined training as instruction or teaching designed to impart
a specific skill, as opposed to general knowledge. The term expert advice or assistance
has also been more narrowly defined as being derived from scientific, technical, or other
specialized knowledge. With personnel, no person may be prosecuted under such a

term unless that person has knowingly provided, attempted or conspired to provide a FTO
with one or more individuals to work under that terrorist organizations director or
control or to organize, manage, supervise, or otherwise direct the operation of that
organization.1 Individuals who act entirely independent of the FTO to advance its goals
shall not be considered to be working under the FTOs director or control.2
Many scholars have challenged the constitutionality and application of the
material support law in a variety of contexts.
The aforementioned Duquesne Law Review article walks through the history of
the law and acknowledges that much of the ambiguity in the statute pre-dates the
PATRIOT Act itself. During hearings in June 1995 before the House Committee for the
Judiciary, the American Civil Liberties Union argued that the 2339B concept was a
fundamentally flawed and unconstitutional approach.4 Before the PATRIOT Act, it was
an earlier statute, the Anti-Terrorism and Effective Death Penalty Act of 1996, which
first made it a crime to provide material support to designated FTOs. The PATRIOT Act
enhanced the criminal penalties and expanded the statutes scope.4
Beyond the statutes history, the article discusses the statutes First Amendment
concerns in the context of humanitarian and civil organizations. These groups support is
distinct from the terroristic acts of designated FTOs, thus the statute impinges on their
First Amendment freedoms of speech and association for supporters to be criminally
prosecuted when their intention is solely lawful. The reality that these contributions can
be readily passed through to terrorist arms of the organizations presents a difficult
conundrum of distinguishing between conduct aimed to support legitimate political and

10

humanitarian groups and conduct that is a mere subterfuge for supporting terrorist
organizations.4
In an article from the Harvard Journal on Legislation, Robert Chesney argues for
reformation of 2339B from both a civil liberties and national security perspective. He
acknowledges the arguments that the law denies due process, violates expressive and
associative rights, and is vague and overbroad. He also argues that neither it nor any
other current provision in US law sufficiently addresses the conduct that tends to generate
concern about the growing security concern of potential sleepers. Moreover, he asserts
that the evolving nature of the terrorist threat tends to erode the utility of 2339B
because the statute depends on the ability of prosecutors to link a defendant to an
organization already identified and designated by the Secretary of State. Although
designated organizations will continue to pose a significant threat, since 9/11 a new
generation of non-designated, decentralized networks has emerged, contributing to the
threat environment. Overall he argues that the statute can be reformed without sacrificing
the compelling government interests that generated the law in the first place.11
Not all scholars share the same perspective. In an article from the Notre Dame
Law Review, Brian Comerford argues in favor of the material support law. He explores
why courts have largely upheld the statute and have permitted the federal government to
go forward with material support prosecutions, focusing most heavily on the preventive
intent of the law. Without the statute, he asserts, prosecutors and government officials
would be unable to adequately prevent acts of terrorism. By allowing prosecutors to act
when there is a definite threat of terrorism, but before a terrorist plot is initiated, the
material support statute empowers federal prosecutors to prevent terrorism and not

11

merely prosecute terrorist acts. He also argues that the Justice Department should
continue to exercise restraint in bringing material support cases to court to avoid the
development of negative precedent and overly restrictive case law. He does note,
however, that one potential area for revision is not within the statute itself, but the
guidelines applicable to material support conviction.12
D. HOLDER V. HUMANITARIAN LAW PROJECT
The United States Supreme Court fiercely protects the First Amendment and
typically strikes down any law that encroaches on it, making the ruling in Holder v. HLP
all the more astonishing. Since then, the decision has generated wide-ranging scholarly
reactions.
In a 2012 Harvard Legislation and Policy Review article, David Cole focused on
the narrowness of the holding and suggested that the ruling may not inflict such wideranging harm to freedom of speech. He identifies the three main limits in the majority
opinion, noting that the i) law leaves open unregulated, independent advocacy, ii) the
speech in question is related to foreign affairs and national security and iii) the lawgoverned speech is only made in coordination with FTOs, not domestic groups. Thus,
Cole asserts that reading the Courts decision to require the presence of all three
aforementioned factors would inflict the least damage to First Amendment freedoms.
Speech made independently, speech coordinated with a domestic group, or speech that
does not threaten national security all remain constitutionally protected.13
A 2010 article in the Suffolk Transnational Law Review supports Chief Justice
Roberts opinion, stating that scholars of humanitarian aid have been expressing Roberts
concerns for years. For many, the turning point which actually involved civil strife, not

12

terrorism was a camp established by humanitarian groups after the 1994 Rwandan
genocide, located in what is now the Democratic Republic of the Congo. The camp
provided food, housing and logistical support to Hutu fighters, the perpetrators of the
genocide. Moreover, Tutsi and moderate Hutus in the camps, who did not buy into the
genocidal vision, were often killed. In this scenario, what was seemingly humanitarian
aid actually compounded the violence. The article asserts that the Courts decision in
HLP will have an impact on humanitarian groups offering advice and tangible assistance,
but should have no impact on human rights monitoring, as the HLP sought to do for both
the PKK and LTTE.14
The vast majority of academic literature criticizes the 2010 Supreme Court ruling.
In a 2013 article in the Loyola Law Review, Brandon Smith notes the lack of judicial
guidance on this issue and warns against its future consequences as new cases emerge in
lower courts. He argues that in Holder v. HLP, the Courts opinion avoided an analysis of
the traditional categories of free speech protections and levels of scrutiny. He criticizes
the standard of review applied by the Courts majority, noting the blatant lack of clarity.
The application of intermediate scrutiny via the OBrien test, as advocated for by the
federal government, was rejected by the Court, which reasoned that since the regulation
in question focused on expression, it needed a higher level of scrutiny. Yet, clear
application of strict scrutiny, while used during oral argument, is noticeably absent from
the written opinion. Furthermore, Smith criticizes the ruling by drawing upon the
frequent confusion and misunderstanding as to the application of the material support law
that still exists among experts and the international humanitarian community today.15

13

A 2013 article by Marjorie Heins in the Albany Law Review lends harsher
criticism on the Holder v. HLP case and expands upon Smiths assertions about the lack
of strict scrutiny in Roberts opinion. She states that an analysis of Roberts majority
opinion reveals startling lapses of logic and inattention to precedent. She notes that when
applying his more demanding standard, Roberts did not make any real effort to
determine whether banning the challenged aspects of material support would in fact
accomplish the governments interest in fighting terrorism, no less that it was a narrowly
tailored means of doing so. Roberts emphasized that the executive branch, like Congress,
is entitled to deference because the case implicates sensitive and weighty interests of
national security and foreign affairs. Heins draws major insight with her argument that
the US interest in supporting its strategic ally of the Turkish government satisfied the
more demanding scrutiny test that was applied but remained absent from the opinion.16
The day after the Supreme Court ruling, the New York Times, an avid opponent
of the ruling, published an editorial that drew upon a Supreme Court ruling during the
Red Scare, stating that the consensus decades ago was that even the need for national
defense could not reduce the First Amendment rights of those associating with American
Communists. It then went on to state that in the first case since 9/11, in attacks to test
free speech against the demands of national security in the age of terrorism, the ideals of
an earlier time were eroded and free speech lost. By preserving an extremely vague
prohibition on aiding and associating with terrorist groups, the Court reduced First
Amendment rights of American Citizens.17

14

Part II. Implementation of the Material Support Law

A. PROSECUTION
The material support statute has unsurprisingly become the federal governments
most invoked statute in its ceaseless war on terror. Convictions require no proof that the
suspect actually engaged in terrorism or conspired to commit terrorism. Its vast scope and
sweeping vagueness, although rejected by the Supreme Court, allow otherwise
constitutionally protected activities to easily fall under prohibited categories of
training, expert advice or assistance, or personnel often unbeknownst to offenders.
So far, the government has not prosecuted a group or individual for providing
international law training. Although the Holder v. HLP ruling was catastrophic, it was not
a criminal prosecution case. The general pattern of prosecution indicates that the
government targets individuals who satisfy the following criteria: they provide direct,
often physical support to the terrorist activity; they funnel aid through clearly identified
FTOs; and they intend to further terrorist aims.18
Targeted individuals are generally prosecuted for more conventional material
support, such as recruitment support, weapons or attending training camps. Generally,
those prosecuted have deliberate intent to further the organizations terrorist activity. In
these cases, individuals are usually charged with both material support and conspiracy.21
While this general pattern might appease some of the growing concern
surrounding the statute, the historical frequency with which the law has been used revives
any and all doubt. Before September 11, 2001, there were only three prosecutions for the
crime of material support19. Between 2001 and 2003 alone, there were 92 prosecutions.19
By 2013, prosecutors had used material support charges against more than 500

15

individuals.20 In 2015 alone, the US Justice Department has posted 85 press releases on
arrests and sentences related to the provision of material support.21 Since 2001, 74
percent of all defendants charged with terrorism have been charged with violating
2339B.19
While the majority of material support prosecutions deal with more direct and
deliberate aims to further terrorist groups violence, a handful of more controversial cases
have emerged following the Supreme Courts 2010 controversial ruling.
A. Harassing activists
In September 2010, the FBI raided eight anti-war activists homes in Minneapolis and
Chicago, seizing computers, cell phones and files and issuing 23 subpoenas to certain
targeted individuals to appear before a federal grand jury. The FBI agents raided the
homes as part of what was called a probe of activities concerning the material support of
terrorism, thus seeking evidence of ties to FTOs. The search warrants remain sealed to
this day and no one has been indicted, though activists are arguing that the warrants be
made public.23
B. Online Speech
In April 2012, Egyptian-American Tarek Mehanna was found guilty of conspiracy and of
providing material support to FTOs. He is currently serving a 17.5-year prison sentence.
The prosecution accused Mehanna, who was notoriously critical of US foreign policy, of
translating statements for Al-Qaeda and of disseminating pro-jihadist material on the
Internet. At the time of his sentencing, Mehanna was a 29 year-old pharmacist living in
Massachusetts who attempted to join jihadi training groups in Yemen. According to the
prosecution, Mehanna watched and subtitled jihadi videos, engaged in online debate

16

through email, instant messaging and web postings, sought out online links to tribute
videos and spoke of admiration and love for Osama bin Laden. The principle action that
the prosecution drew upon was his translation of 39 Ways to Serve and Participate in
Jihad, which does not, in fact, wholly incite violence. The text also includes ways that
fellow Muslims can help one another through nonviolent solutions. Nevertheless,
Mehannas speech was criminal under the material support statute.24 Mehannas
sentencing is disturbing, not because he was so ardently pro-Al-Qaeda, but because his
speech was the crime itself. No evidence linked him to actual acts of terror. Mehannas
case deviates from typical First Amendment doctrine that protects speech no matter how
ugly or contrary to the government.
B. PUNISHMENT
The punishment for violation of the material statute has been disturbingly
augmented throughout the statutes lifespan. In 1996, the punishment for violating
2339B stood at 10 years in prison, and if the death of any person results, shall be
imprisoned for any term of years or for life. In 2001, the government increased the
punishment to 15 years in prison. In June 2015, the government amplified that sentence
to 20 years.1 Not only did the sentence double, the scope of crimes that could fall under
such violation, including charitable and humanitarian works, vastly expanded as a result
of Holder v. HLP. These severe criminal penalties apply whether or not the provider of
material support intends to further the FTOs unlawful aims. To add further context, the
punishment for manufacturing 1kg of heroin is equitable to sending aid to tsunami
victims in LTTE-controlled Sri Lanka.25 The same sentence of 20 years applies to
running a child exploitation enterprise, committing aircraft piracy, violating prohibitions

17

governing atomic weapons, and now, offering nonviolent, peace-building legal advice to
marginalized ethnic minorities!25
Part III. Effect on Peacemaking and Humanitarian Groups
While no humanitarian group has yet to be prosecuted for violating the material
support statute, the statutes very existence harms vital humanitarian and philanthropic
work overseas. The law not only prevents those who critically rely on aid from receiving
it, but undermines the US governments counter-terrorism efforts by making it more
difficult for charities and peace mediators to operate in parts of the world where their
work could be most effective. Effective conflict resolution requires negotiating with
armed actors and providing each side with expertise. Effective advocacy for peace
requires persuading armed actors to choose non-violent means to achieve their aims.
Effective humanitarian aid requires advising and sharing expertise with local partners,
many of whom may be members of FTOs. A particularly infuriating example occurred in
2004, immediately after a massive tsunami that devastated Sri Lanka, at the time partly
controlled by the LTTE. A number of doctors and public health officials faced the
decision of whether providing critical healthcare services would be illegal if recipients of
those services were associated with the LTTE.26 As a result of the material support law,
many doctors who would have otherwise provided such assistance were deterred from
performing their moral and professional duty. This tragic scenario begs the question: If
the US had listed designated FTOs in Haiti at the time of the 2010 earthquake, or in
Sierra Leone during the 2014 Ebola outbreak, would the US still abandon millions of
victims for the sake of protecting its national security?

18

Listed below are only a handful of humanitarian projects whose legality is now
questioned after the Holder v. HLP ruling.
Figure 1.1 26
Humanitarian
Group
Humanitarian Law
Project

Five American-Tamil
Organizations and 1
US Citizen
Carter Center

Carter Center
Christian Peacemaker
Teams
Carter Center

Peace Appeal
Foundation

Peace Appeal
Foundation
Human Rights Watch

Carter Center

Action/Project

Current or
Potential FTO
PKK

Geographic
Region
Turkey

Notes

LTTE

Sri Lanka

1998- much
support ceased
when LTTE put
on US FTO list

Hezbollah and
Hamas

Lebanon and
Palestinian
Territories

2009, 2006,
2005, 1996;
elections
observed by
Carter himself

Teaching peaceful
conflict resolution
in universities
Provides violencereduction teams at
the request of local
NGOs
Mediation and
facilitation of
peacemakingadvocacy for
peaceful solutions
Dialogue,
negotiation,
peacemaking
support; research;
One Text
Initiative- dialogue
process

Hamas, Fatah

Gaza

FARC, Hamas,
PLF

Northern Iraq,
Colombia, West
Bank

Hamas,
Hezbollah, Fatah,
SPLN, Maoists,
LRA
LTTE

Sudan, Uganda,
Nepal,
Palestinian
territories,
Lebanon
Sri Lanka

Nepal Transitions
to Peace Initiative
Investigate human
rights abuses and
advocates with
perpetrators to
cease abuses
Human rights
monitoring and

CPN Maoists

Nepal

LTTE, Hamas,
FARC, ELN,
Hezbollah

Palestinian
territories, Sri
Lanka, Colombia

Hamas,
Hezbollah

Palestinian
territories

Training on how to
petition the UN,
human rights
monitoring,
peacefully working
with government
Social services,
building
infrastructure,
increasing
humanitarian aid
Monitoring
elections

US dropped out
of crucial
dialogue process
when the LTTE
sent a
representative,
compromising
the effectiveness
of the talks

19

Christian Peacemaker
Teams
Christian Peacemaker
Teams

advocacy meetings
with perpetrators
Advocating for
peaceful resolution
Advocacy to bring
attention to civilian
victims

Hamas

West Bank

PKK

Turkey, Northern
Iraq

In virtually every scenario of peacemaking or humanitarian efforts, internationally

recognized groups work with marginalized, polarized, albeit violent groups. The
mistreatment these violent groups face from their socio-political systems is the very lifesource of their violent outbreaks. Peacemaking and humanitarian groups seek to rid the
world of this vengeful violence by reducing the polarization and marginalization
exhibited towards these violent groups through advocacy, the facilitation of dialogue, and
other peaceful mediation mechanisms. These efforts align with US foreign policy goals,
yet achieve these aims through diplomatic means rather than over-zealous security
strategies that the government employs so fondly. So long as the monstrous roadblock of
the material support statute exists, effective peace building and a safer United States will
remain unattainable.
Beyond preventing fruitful resolve against violent terrorist groups, the threat of
prosecution for material support chills Muslim charitable giving, or zakat, one of the Five
Pillars of Islam. In 2009 alone, six American-Muslim charities were shut down and six
more were under investigation or raided.27 It is not uncommon for FBI agents to knock on
donors doors and interrogate them about their donation.27 Freedom of religion is an
American constitutional right, yet the fact that American-Muslims cannot safely fulfill
their religious duty for fear of prosecution is just one of the atrocities imparted by the
statute. Contributions to Muslim-American charities, especially those with an

20

international scope, have decreased by up to 50 percent, according to the Institute for

Social Policy and Understanding.28
Thus, Part II and III of this paper present a paradox: While the law is largely used
to prosecute dangerous terrorism recruits and conspirators, its existence actively prohibits
peacemaking and humanitarian groups from performing their jobs that could prevent
terrorism in the first place. Thus, it pushes and pulls while terrorism, civil strife and
humanitarian crises run rampant across the world. Another notable division in how the
law persecutes and prohibits lies in the identities of the FTOs the law targets. A vast
majority of convicted violators lent support to Al-Qaeda and ISIS, while peace-building
and humanitarian groups work with an entirely different roster, as listed in Figure 1.1.
Part IV. Illegal v. Legal Speech
Despite hundreds of criminal charges, official government statements and
judiciary rulings, confusion still abounds as to what speech and activity legally
constitutes material support. The Supreme Court should not have thought so highly of the
American people as to reject arguments of unconstitutional vagueness, considering
professional mediators like former president Jimmy Carter cannot definitively say if his
work could be prosecuted on the grounds of material support. Clearly, an ordinary person
of average intelligence cannot definitively say so either.
Confusion around legally protected speech is even common within the federal
government. John Carlin, who leads the US Justice Departments national security
division, told the Wall Street Journal, We dont punish speech. What we punish is
criminal conductwere not looking to stop people from expressing viewpoints.19
However, when delivering the Court majority opinion, Chief Justice Roberts explicitly

21

stated that the statute regulates speech on the basis of its content. Whether persons may
speak to foreign terrorist organizations depends on what they say.2 The two statements
directly contradict one another.
The statute has been amended to clarify the blurry terms of training and expert
advice or assistance. The term training means instruction or teaching designed to
impart a specific skill, as opposed to general knowledge. It mistakenly does not specify
whether that skill is lawful or unlawful.1 The term expert advice or assistance means
advice or assistance derived from scientific, technical or other specialized knowledge,
again failing to distinguish well- and mal-intended conduct.1 So speech made by the
plaintiffs in HLP, professionals with doctoral degrees in nonviolent dispute resolution, is
illegal. It is illegal because it imparts a specific skill peaceful negotiation and
petitioning and is derived from specialized knowledge PhDs and decades of experience
in conflict-ridden areas. While Roberts concluded that the material support statute is
constitutional as applied to the particular activities the plaintiffs wished to pursue, he
stated that the Court does not address the resolution of more difficult cases that may arise
under the statute in the future. This case-by-case protocol leaves humanitarian groups,
writers, lawyers, activists and more questioning whether their speech qualifies as illegal.
Thus, the pressing need for reform.
The Courts dissenting opinion that no natural stopping place exists for what
constitutes material support has become vividly true across a variety of disciplines
including media, law, academia and international development and aid. Figure 2.1 lays
out a number of scenarios:
Figure 2.1

22

Scenario

Likely Result

Reasoning

Filming, producing and distributing

FTO propaganda
Sharing FTO propaganda on social
media
Serving as a Web master for FTO
content

Illegal

Translating documents for an FTO

Legally advising a FTO
Social work training Hamas
members how to care for civilian
children orphaned by IsraelPalestinian conflict
Offering medial assistance to
tsunami victims of LTTE controlled
area
Journalistic/academic reporting,
research, interviewing with member
of FTO

Illegal
Illegal
Illegal

According to DOJ official

Carlin
According to DOJ official
Carlin
2004 conviction charging
American for illegally using
Internet to hide identity as a
webmaster for online Hamas
recruiting/fundraising
network30
Case of Tarek Mehenna
2010 Holder v. HLP
Imparts a specific skill, child
care

Legal
Illegal, depending on the content

Illegal

Assistance directed to a FTO

Unsure

2010 Hedges v. ObamaNY

District Court granted
permanent injunction barring
section 1021 of National
Defense Authorization Act
which dealt with supporting
Al-Qaeda, Taliban or
associated forces.31

In Holder v. HLP, the Court rationalized its ruling by emphasizing the fact that
independent advocacy on behalf of a FTO is legal. The statute only targets speech or
activity directed to, coordinated with or controlled by FTOs. However, pure
independence from FTOs is virtually impossible in many contexts, most notably
throughout the Islamic world. Considering that Hamas controls the government in Gaza,
any group doing anything in Gaza, including charity groups, could be legitimately linked
to Hamas. A massive catch-22 arises. A more significant error in the argument of
independent advocacy lies in the Court majoritys logic. By stating that lawful assistance
furthers FTOs legitimacy, it would seem that any lawful assistance, including
independent advocacy, would also legitimize these groups. Thus, leaving independent

23

advocacy open is a feeble means of justifying an erroneous ruling made at the behest of a
fear-ridden, overly suspicious Supreme Court majority.
Part V. Recommendations
As currently written, the material support law criminalizes speech that is intended
only to further lawful, non-violent activity. It also criminalizes association intended to
discourage the use of terrorist violence and unlawful activity. Although these lawful,
well-intended activities may legitimize FTOs or free up FTOs resources for terrorist
activities as Justice Roberts suggested, that danger does not warrant rampant violation of
constitutional rights and the devastating consequences on peacemaking and humanitarian
groups. The material support law does serve valuable purpose in combating terrorism
conspirators and recruits who support FTOs with unlawful means such as weapons and
militant service. However, it is imperative that lawful and unlawful intent be
distinguished and the paradoxical nature of the statute disbanded. While scholars have
proposed isolated solutions to the issues presented by the material support law, this paper
proposes a multilateral, comprehensive approach to wholly combating the detrimental
affects of the statute.
1. Reform the FTO decision-making process. First, the executive branch, mainly the
Secretary of State, wields far too much authority in the designation of FTOs. A series of
checks and balances between all three branches of government must be imparted on the
State Departments listing of FTOs. Members of the legislation branch should vote to
affirm or reject the Secretarys nomination of a FTO and the judiciary should review such
designation. Second, the LTTE must be removed from the official register, seeing as the

24

group is now defunct after its 2009 defeat by the Sri Lankan government. De-listing the
group will enable greater humanitarian aid to flow into the developing country.
Thirdly, the appeal process for FTO designation needs reformation. Currently,
third parties cannot play any role in listing activities made by the Secretary of State.
Entities and individuals learn about their designation only once it has already occurred.29
No information is provided before, and the individual and entity cannot rebut the
designation or provide new evidence while the process is pending.29 An extremely low
standard of proof is required in designation procedure, and information, which often
includes classified information, is withheld from public access or overview.29 Upon
designation, groups have thirty days from date of publication in the federal registry to
challenge the decision, though it will most likely be denied in court, as has been the case
for nearly all appeals.29 Every aspect of this process deserves reform. Parties under
designation process should be notified during their review so that they may timely appeal
the designation or have adequate time to build their case. Information on a groups
designation procedure must be more transparent and available to the public, though
classified information may of course be redacted.
2. Statutory Reform. When Congress enacted 2339 B in 1996, it simultaneously
removed an exception listed in 2339 A which exempted the provision of material
support in the form of humanitarian assistance to persons not directly involved in terrorist
activity. While the Court in Holder v. HLP asserted that FTOs are so tainted by their
violent conduct to use humanitarian assistance for harmful means, this exemption may be
re-installed so long as it is accompanied by greater regulatory and monitoring measures.
These measures could include the requirement of periodic monitoring reports that explain

25

how the humanitarian assistance is being used. Institutions like Human Rights Watch or
local governments could be required to sign off on these reports. The Justice Department
could even create a division that directly oversees the humanitarian efforts in approved
areas. Furthermore, a clause distinguishing mal intent should be added to 18 U.S.C.S.
2339 B directly after section (a)(1), which states that a person must have knowledge that
the organization is a designated terrorist organization or that the organization had
engaged or engages in terrorist activity or terrorism. The new clause should add that a
person must possess the intent to further the unlawful aims of the organization. This
addition will impose the task on prosecutors to prove the defendants mal intent, yet this
imposition can be easily handled seeing as most cases involving convicted individuals
contained a wealth of evidence to further the FTOs violence. This would not only protect
humanitarians and peacemakers, but journalists and academics who conduct research
with in coordination with FTOs for public knowledge and benefit. Moreover, this
suggestion is not far fetched, seeing as 18 U.S.C.S. 2339 A (a) contains the wording
knowing or intending that [support] be used in preparation for, or in carry out, a
violation of any offense listed in and goes on to list a series of crimes.32 Additionally,
to work in tandem with FTO designation reformation, the phrase has engaged in
terrorism or terrorist activity in 2339 B (a)(1) should be eliminated. The fact that a
group has previously, but may no longer engage in terrorism should not hold its
supporters, especially those with only lawful intent, at risk for legal prosecution under
material support.
3. Non-Statutory Measures. It is imperative to employ non-statutory measures in
conjunction with FTO designation and statutory reform to ensure the dangers associated

26

with the material support law are effectively vanquished. To support the reinstallation of
the humanitarian assistance exception in the statute, the Justice Department should draft
and publicize a list of specific humanitarian and peacemaking efforts that are exempt
from prosecution. In drafting this modifiable list, the Justice Department should work
with a commission of leaders from the peacemaking, humanitarian and development
community. Suggestions for commission members include leaders from the Carter
Center, Human Rights Watch, USAID, prominent Muslim charities, among others. The
listed exemptions would essentially enumerate specific types of aid, such as international
law training and the teaching of peaceful conflict resolution. This would allow these
vitally important peacemaking organizations to perform their jobs without fear of
prosecution, and will undoubtedly lead to greater amounts of dialogue, mediation and
conflict de-escalation. To compromise with the likely opponents of the statutory
exemption and associated exception list, the commission of humanitarian leaders along
with the Justice Department can establish which types of aid are most urgently needed, as
well as which conflict areas most urgently need such aid. To address Chief Justice
Roberts concern that humanitarian assistance inadvertently supports unlawful terror
activities, any group or organization wishing to receive such assistance must obtain
narrow authorization from the federal government specifying how the aid will be used.
Furthermore, the Justice Department must make the temporary protocol it adopted
in the 2011 Somali famine crises a permanent protocol. In 2011, the Department held a
press briefing and announced that US aid groups that provided famine aid in Somalia
would not be prosecuted for violating the material support statute if they acted in good

27

faith to support victims.18 Press briefings and protections like this should be held in the
wake of any major humanitarian crisis.
In addressing charitable donors concerns that their donations could be linked to a
FTO, the Justice Department could require large charitable organizations to apply for a
list of accreditation that would then be made publicly accessible. For smaller, more
localized charitable organizations who may not be well-suited for this type of
accreditation, the Justice Department could establish a strict set of guidelines that these
organizations can opt into. Upon opting in, the federal government could audit these
organizations at any given time to ensure compliance and assure donors that their
donations will not be linked to terrorist activity.
All of the above steps must be pursued and implemented in conjunction with one
another to ensure that the material support statute continues to effectively combat
dangerous terrorism threats while allowing humanitarian and peacemaking groups to
lawfully fulfill their work.
Part VI. Conclusion
The constitutional and national security concerns raised by the material support
statute present a highly complex and nuanced set of implications. The laws current form
punishes speech based on a third-partys potential unlawful conduct, even when the
speech intends to discourage violence and facilitate peace. Providing a foreign terrorist
organization with machine guns and explosives should in no way, shape or form stand
legally equitable to persuading such groups to achieve their aims non-violently. To most
effectively address these concerns, a multi-lateral set of strategies must be put into
motion. The FTO designation process needs widespread reformation. The statute needs

28

reinstallation of a humanitarian exemption as well as the inclusion of a proof of intent

clause, among other previously mentioned changes. Non-statutory reform such as a
publicized list of safe activities, press briefings and new regulations for charities must
also be employed in conjunction with the previous measures. Mastering the balance
between antiterrorism, humanitarian and civil liberties is but one of the ways the US can
break from its fear-mongering, security-obsessed ways and regain respect among the
international community.

29

Endnotes
1

18 U.S.C.S. 2339 B

Holder v. Humanitarian Law Project, 561 U.S. 1 (Supreme Court of the United States
2010).

Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (9th Cir. App. 2004)

Rozenweig, Paul, Civil Liberty and the Response to Terrorism, 42 Duq. L. Rev. 663
(2004).

Farber, Daniel. (2008). Security v. Liberty: Conflicts Between Civil Liberties and
National Security in American History. New York, New York: Russell Sage
Foundation.

Herman, Susan N. (2011). Taking Liberties: The War on Terror and the Erosion of
American Democracy. New York, NY: Oxford University Press, Inc.

Foreign Terrorist Organizations. Retrieved from

http://www.state.gov/j/ct/rls/other/des/123085.htm.

Julie B. Shapiro, The Politicization of the Designation of Foreign Terrorist

Organizations: The Effect on the Separation of Powers, 6 Cardozo Pub. L. Policy
& Ethics Journal 547 (2008).

Pious, Richard M. (2006). The War on Terrorism and the Rule of Law. Oxford
University Press, Inc.

10

Chang, Nancy. (2002) Silencing Political Dissent: How Post September 11 AntiTerrorism Measures Threaten Our Civil Liberties. Seven Stories Press.

11

Chesney, Robert, The Sleeper Scenario: Terrorism-Support Laws and the Demands
of Prevention, 42 Harv. J. on Legis. 1 (2005).

30

12

Comerford, Brian, Preventing Terrorism by Prosecuting Material Support, 80 Notre

Dame Law Review 723 (2005)

13

Cole, David, The First Amendment's Borders: The Place

of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 Harvard
Law & Policy Review 147, 150 (2012).

14

Margulies, Peter, Accountable Altruism: The Impact of the Federal Material Support
Statute on Humanitarian Aid, 34 Suffolk Transnatl L. Rev. 539 (2011).

15

Smith, Brandon, Protecting Citizens and Their Speech: Balancing National

Security and Free Speech When Prosecuting the Material Support of Terrorism,
59 Loy. L. Rev. 89 (2013)

16

Heins, Marjorie, The Supreme Court and Political Speech in the 21st Century: The
Implications of Holder v. Humanitarian Law Project, 76 Albany Law Review 561
(2012)

17

Editorial, A Bruise on the First Amendment, N.Y. Times, June 22, 2010, at A26.

18

Aldesberg, S., Pitts, F. & Shebaya, S., The Chilling Effect of the Material
Support Law on Humanitarian Aid: Causes, Consequences and Proposed
Reforms, 4 Harv. Natl Sec. J. 282 (2013)

19

Hong, N. (2015, May 27). Material Support Statute is Front and Center in Antiterror
Push. Retrieved from http://www.wsj.com/articles/material-support-statute-isfront-and-center-in-antiterror-push-1432719002.

20

Akbar, A. (2013, December 31). How Tarek Mehanna Went to Prison for a Thought
Crime. Retrieved from http://www.thenation.com/article/how-tarek-mehannawent-prison-thought-crime/.

31

21

Justice News. Retrieved from http://www.justice.gov/justice-news.

23

Regan, S. (2010, September 25). FBI raids activist homes in Minneapolis, Chicago.
Twin Cities Daily Planet. Retrieved from http://www.tcdailyplanet.net/fbi-raidsactivist-homes-minneapolis-chicago/

24

March, A. (2012, April 21). A Dangerous Mind? Retrieved from

http://www.nytimes.com/2012/04/22/opinion/sunday/a-dangerousmind.html?_r=1.

25

(2013, February 25). Federal Mandatory Minimums. Retrieved from

http://famm.org/wp-content/uploads/2013/08/Chart-All-Fed-MMs-NW.pdf

26

Brief of the Carter Center as Amicus Curiae, Nos. 08-1498 and 09-89, (2009),
https://www.aclu.org/sites/default/files/field_document/08-1498_and_0989_tsac_The_Carter_Center.pdf

27

(2009, June). Blocking Faith, Freezing Charity: Chilling Muslim Charitable Giving in
the War on Terrorism Financing. American Civil Liberties Union. Retrieved
from https://www.aclu.org/files/pdfs/humanrights/blockingfaith.pdf.

28

Jamal, N. (2011, August 31). Charitable Giving Among Muslim Americans: Ten Years
After 9/11. Institute for Social Policy and Understanding. Retrieved from
http://www.ispu.org/pdfs/ISPU_Policy%20Brief_Jamal_WEB.pdf.

29

Giorgetti, C. (2006, April). Listing and De-Listing of Terrorist Organizations: the case
of the United Nations and the United States of America. Center for Humanitarian
Dialogue. Retrieved from
http://www.hdcentre.org/uploads/tx_news/147ListingandDelistingofTerroristOrganizations.pdf.

32

30

Pious, Richard M. (2006). The War on Terrorism and the Rule of Law. Oxford
University Press, Inc. p.89

31

Hedges v. Obama, 12 Civ. 331 (S.D.N.Y., September 2012)

32

18 U.S.C.S. 2339 A

33