Material Support: An Indispensable Counterterrorism Tool Turns 20
A few years back, there were plenty of American conservatives who publicly sneered at the notion that terrorism was anything short of a military problem. We should not treat terrorists as criminals, they argued, because that was somehow soft-headed. The problem with their argument was that it could not tell us how to handle American citizens in the United States who plot to attack the homeland. Gitmo? Not likely, and we cannot call the U.S. Air Force in to bomb Chicago if we find terrorists operating there. Kinetic options simply do not exist for certain American counterterrorism situations.
We need the U.S. criminal justice system to be able to handle terrorists because terrorists are sometimes Americans, who sometimes operate domestically, even if they are taking orders or inspiration from abroad. Fortunately 20 years ago today, the United States revolutionized this capability. The Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted on April 19, 1996 to coincide with the one-year anniversary of the Oklahoma City attack. It contained two key international terrorism provisions that were buried in one of those now-controversial Clinton crime bills. It amended the U.S. Criminal Code to add the following provision:
§ 2339B. Providing material support or resources to designated foreign terrorist organizations
(a) Prohibited activities. –
(1) Unlawful conduct. – Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 10 years, or both. …
Meanwhile, the AEDPA amended the Immigration and National Act to create a system in which the State Department officially designates, for all the world to see, a list of subnational foreign terrorist organizations that meet the definition of “foreign terrorist organization” (FTO).
I took more than a passing interest in these provisions. I joined what was then known as the Terrorism and Violent Crime Section at the Department of Justice in March 1997, and became part of a small group of prosecutors looking at how to make terrorist financing cases. I eventually was placed in charge of the unit of lawyers dedicated to making “material support” cases. Our focus was on United States-based fundraisers for FTOs, which is to say white collar criminals.
It took some time for these provisions to gain some traction. For one, they did not become fully operational until October 8, 1997, when Secretary Albright publicly announced the first round of FTOs, consisting of 29 groups. Even then and despite our best efforts, we did not see many prosecutions. The Department of Justice obtained charges against a group of Mujahedeen-e-Khalq (MEK) financial supporters in Los Angeles, but this prosecution quickly got bogged down in pre-trial constitutional litigation. In Michigan, prosecutors obtained an indictment of a Hizballah procurement officer, but he quickly disappeared across the Windsor Bridge.
Unfortunately, it took 9/11 to shake us out of our inaction. The USA PATRIOT Act’s two most important provisions finally permitted the full sharing of information between agents involved in intelligence operations and their counterparts on the law enforcement side; these limits were previously believed to be necessary to protect ongoing surveillance authorized by the Foreign Intelligence Surveillance Act (FISA). When terrorism prosecutors first saw the type of intelligence the FBI had been collecting on U.S.-based terrorist operatives, there was dancing in the halls of Main Justice. “Material support” prosecutions began to proliferate. Terrorism prosecutors finally had something to put their teeth into. Suddenly, there was an end-game to the FBI’s spadework.
Something else happened around that time: the U.S. military overran a Taliban camp in Afghanistan and, in the process, detained a young American named John Walker Lindh. We quickly realized that he could not be charged with the most obvious crime — treason — because the U.S. Constitution required two witnesses to each of his treasonous acts. Instead, prosecutors obtained an indictment against him under § 2339B, based on the theory that he was attempting to provide “personnel” (his own body) to al Qaeda, an FTO.
At the time, it was far from clear that “personnel” within the definition of “material support or resources” included one’s own person. Lindh’s family got good lawyers who traveled from California to Virginia and filed a motion to dismiss, which argued that “personnel” did not include one’s own body. Prosecutors did not have much to say. After all, there was very little in the way of legislative history to inform the question. They resorted to arguing dictionary meanings.
Judge T.S. Ellis III took the matter under advisement. When he returned to the bench, he announced his conclusion that “personnel” within the definition of “material support or resources” did indeed include one’s own person.
This might seem like small potatoes, but it was a watershed event for §2339B enforcement and counterterrorism cases, just as much as the PATRIOT Act information-sharing changes. I remember being stunned at the time, realizing that we might have hit the jackpot. For the first time, American prosecutors could obtain indictments of people who sought to perform services for FTOs, on the theory that they were attempting to provide “personnel.” This development gave us the Lackawanna defendants, the Portland jihad cell, and the Virginia Paintball group. Section 2339B was the closest thing our prosecutors have to specifying the crime of “being a terrorist,” an offense that otherwise does not exist. A few years after the Lindh decision, Congress amended the definition of “material support or resources” to clarify the term “personnel,” which is now defined as “one or more person who may be or include oneself.” Section 2339B became more than just a white collar crime. It could be used to incapacitate bomb-throwers as well.
Where has the “material support” crime taken us in the 20 years it has existed? As noted, §2339B prosecutions began to proliferate after 9/11 and the PATRIOT Act. There have been over 300 individuals charged with “material support crimes,” compared to only a handful before 9/11. That is an amazing trajectory. It is an indispensable counterterrorism tool and one that does not involve the military. The Department of Justice has successfully prosecuted supporters of al Qaada, Hamas, Hizballah, FARC, AUC, al Shabaab, and the Islamic State in Iraq and the Levant (ISIL) for a variety of roles in the terrorist support enterprise. Most new terrorism indictments you read about these days include a “material support” charge. We were assisted by the FBI, which created the Terrorist Financing Operations Section (TFOS) after 9/11.
Today, the American approach to criminalizing terrorism is the envy of our foreign partners. Under the “attempt” provision to §2339B, we can arrest aspiring ISIL foreign fighters before they leave for Turkey, on the theory that they are attempting to provide “personnel” to an FTO. These cases, which are on the rise, typically involve a heavy dose of social media exploitation which allows American prosecutors to argue that the travelers intended to join ISIL, plus an affirmative act — like buying a plane ticket or traveling to the airport. For countries that are grappling with the dilemma of how to stop their nationals from fighting in Syria and coming home as threats, the U.S. “material support” statute is the gold standard. With it, we do not have to wait until Americans are caught on the battlefield in Syria.
Over the last several years, the material support crime has been amended to make it more powerful. In 2004, for example, several bases of extraterritorial jurisdiction were placed in it. Prosecutors can now prosecute § 2339B defendants who have never set foot in the U.S. before their arrest and extradition. Penalties have increased.
Of course, one of the signs that a law enforcement tool is powerful is how many people come out of the woodwork and complain about it. These arguments ultimately went to the Supreme Court, which ruled 6–3 that the material support regime was constitutional.
So here we are, 20 years later. Happy Birthday, § 2339B. May there be many happy returns.
Jeff Breinholt is an attorney in the National Security Division of the U.S. Department of Justice in Washington, DC. He is a member of the State Bar of California. The views expressed in this article are the author’s own and do not necessarily reflect those of the Department of Justice or the United States.