Legal Commentary

The "Material Support" provision of the Anti-terrorism and Effective Death Penalty Act of 1996, 18 U.S.C. §2339B(a) is a troubling measure. The provision makes it a serious criminal offense to "knowingly provide[] material support or resources to a foreign terrorist organization," thereby creating something akin to a strict liability "abetting" offense. Such a law is an open invitation to frivolous or abusive prosecutions -- and I am not convinced that the DOJ has declined the invitation.

Suppose that a college friend who frequents radical mosques asks one to store an old suitcase filled with socks and ponchos in one's house. He says that the stuff is to help out freezing villagers in Waziristan. For letting him keep the stuff in one's apartment, one could be liable for a 15-year sentence, just so long as the government could show that one knew that that friend was affiliated with a terrorist organization. Likewise, suppose that one's brother is kidnapped by Al Qaeda in Mesopotamia, and one pays ransom to get him released. This is a criminal offense under the DOJ's view of the "material support" provision -- and DOJ has yet (to my knowledge) acknowledged any "duress" or "necessity" defense to the statute. The statute has broad extra-territorial reach, such that virtually any resident of the Gaza strip who paid taxes to the Hamas-led government is guilty of violating its provisions.

It is obvious that such a law could sweep into its net lots of morally innocent people who casually give money to family members, mosques, or charities with ties to FTOs. Most organizations that operate in FTO-controlled territory -- the Gaza Strip, the Jaffna Peninsula in Sri Lanka, much of Columbia -- must by necessity pay money to an FTO simply to survive. Most people do not hire private investigators or accountants to trace where their aid ends up, and scienter surrounding donations can turn on coin-toss of a prejudiced jury's verdict. So the sanity of the law depends entirely on prosecutorial discretion.

Do U.S. Attorneys exercise sensible judgment in choosing their targets? As I suggest after the jump, I have my doubts.

The poster child for prosecutors run amok is Fahad Hashmi, the guy who was busted by the feds for storing those ponchos and socks for a friend who flipped to the feds. Hashmi might be an outlier, but the cases touted by the feds as evidence of the law's efficacy strike me as worrisome or even perverse: What, for instance, did the Holy Land Foundation prosecution accomplish, beyond depriving people in the Gaza strip of money for hospitals, which are commonly Hamas-affiliated?

If one were uncharitable, one might suspect that federal prosecutors pursue trivial or harmless targets just to rack up their terrorism-busting numbers to assuage Main Justice that they are taking terrorism seriously -- a suspicion that is fueled by the notorious Covertino case, in which a Michigan prosecutor ended up as a defendant himself (both civilly and criminally) for being over-eager in seeking convictions of three Muslim men.

For libertarian-inclined lawyers, therefore, Holder's position on "material support" prosecutions" will be a matter of intense interest. Some guidelines about what constitutes truly culpable "material support" would be welcome.