The Prohibition on Material Support to Terrorist

How American Anti Terrorism Law Uses the Money Trail

Feb 13, 2009

Before and since 9/11, one of the most effective ways to fight terrorism has been economic. With this goal, certain provisions prohibit material support to terrorists.

The material support provisions – 18 U.S.C. §2339A and B – emerged under a piece of legislation known as AEDPA (the Anti-Terrorism and Effective Death Penalty Act) in 1996. These provisions represent a change in the government's strategy to combating terrorism. Rather than simply punishing a terrorist for an act after it occurs, the government under these provisions can impose direct criminal responsibility for merely supporting a terrorist organization.

Definition of Material Support

The definition specifically excludes religious materials and medicine, but does not exclude items like blankets, food, or other humanitarian support, which could fit within categories above. The most important legal questions regarding this definition have risen up around the training/expert advice categories and the personnel category.

With training, the question is what type of training? Would advising a terrorist organization in the legal consequences of its actions under U.S. or international law, for example, be considered a form of material support? In a Ninth Circuit opinion, Judge Kozinski said no – only military-type training, such as teaching a member of a terrorist organization how to fly a plane or use a weapon, qualifies. Of course, there are some grey areas – for example, someone could teach a member of a terrorist organization advanced chemistry without intending that they build a chemical weapon, or provide advice regarding electrical wiring without intending that they take out a city's electrical grid. These questions have not yet been resolved by case law.

The question of personnel revolves around what kind of work one has to be doing to qualify as personnel. Clearly, joining the military wing of a terrorist organization and taking up arms against the United States is prohibited, but what about becoming a member of the organization in a more casual way? This question has been partially resolved, in that someone has to be under the organization's command and control to count as personnel. The law specifically says that advocating for the same position as a terrorist organization independently does not qualify as material support.

To Whom Is Providing Material Support Illegal?

There are two situations in which providing material support is illegal. Under subsection (A) of the statute, it is a crime to knowingly provide material support to someone who commits or is preparing to commit terrorist acts. Of course, it may be difficult to prove that an individual knows the beneficiary engages in or plans to engage in terrorist activities. However, under subsection (B), the individual doesn't have to be aware of any specific activities – if someone knowingly gives material support to a designated foreign terrorist organization, it is a crime regardless of knowledge of the specific activities.

Under subsection (B), the individual can know either that the organization is designated as a foreign terrorist organization – whether that designation is correct or not – or know that the organization engages in terrorist activities. If charged with violating this provision, the individual cannot collaterally attack the designation of "foreign terrorist organization" – the only question is the fact of designation. The organization itself does have thirty days after the designation is made to challenge it factually, but if it does not or is unsuccessful, an individual who supports it cannot later claim that the designation was incorrect or unfair.

Norman Abrams, Anti-Terrorism and Criminal Enforcement (Abridged Third Edition), West 2008

The copyright of the article The Prohibition on Material Support to Terrorist in Law is owned by Judith Faucette. Permission to republish The Prohibition on Material Support to Terrorist in print or online must be granted by the author in writing.