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Finding the Balance: Material Support Statutes

Monday, December 28, 2009

In recent months, there have been an unprecedented number of terrorism-related arrests all across the United States. In North Carolina, Daniel Boyd was arrested for conspiring to commit terrorist attacks overseas. In Chicago, federal authorities disrupted a plot to attack the offices of a Danish newspaper, and in Boston, Tarek Mehanna was apprehended for allegedly planning a terrorist attack on a mall. In all three cases, the suspects have been charged for material support for terrorism. The material support statutes, defined in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and expanded under the PATRIOT Act, have become one of the Department of Justice's most effective tools at prosecuting terrorists within the parameters of our legal system, stopping would-be terrorists and their abhorrent acts.

Yet while the statutes have proven to be a potent counterterrorism tool, their potentially broad application creates valid concerns about violation of First Amendment rights (in particular, freedom of speech and association). The ambiguity of the language presents problems for individuals engaging in humanitarian activities that require the cooperation of the non-violent arms of terrorist groups: the statutes ban all forms of support, including charitable, under the stance that any type of assistance furthers the ill-intentioned aims of the organizations. The current case before the Supreme Court, Holder vs. Humanitarian Law Project, involves a doctor who feared being charged for providing medical support to ethnic Tamils in regions of Sri Lanka controlled by the LTTE, a Department of State foreign terrorist organization (FTO).

On one hand, we have a tool that balances the legal challenges of terrorism cases and a criminal prosecution system (the alternative most cited being military tribunals). On the other, we have possible abuse of constitutional rights and damaging repercussions on the benefical work of humanitarian organizations. It would be foolhardy to throw out material statutes; they work as a bridge between our legal system and the institutional restraints of prosecuting terrorist suspects. Yet the United States would also lose both strategically and morally if it did not recognize and address the potential abuse of civil liberties and the important work of humanitarian organizations. Often, the very existence and dominance of terrorist organizations in these areas of the world demonstrates the great need for our assistance. 

Instead of framing the debate as either/or, material support should be re-examined, keeping the benefits as a counterterrorism tool while putting in place the necessary institutional restraints to protect civil liberties. There are three mechanisms that would be effective at doing so: clarifying the language in the statutes to remove unnecessary ambiguity, provide a tiered system of puishment for those charged for material support, and providing a humanitarian waiver system. 

While supporters of material support 'as is' argue that judicial review will limit any potential abuses that could result from the broadness of the statutes, there should also be legislative mechanisms in place to protect civil liberties. By developing on the definitions of "service" and "expert advice and assistance" to exclude forms of assistance such as conflict resolution training, would solidify the current legal and legitimate actions of humanitarian organizations (including the United Nations) and prevent future unintended abuses. 

Further, the government can institute and expand a humanitarian waiver system to approve aid that has tangible humanitarian and diplomatic benefits, if it can be proven that they outweight the potential negatives, such as politically bolstering the terrorist organizations. The United States can then monitor and control humanitarian aid that requires the involvement of certain FTOs, while providing a way for humanitarian organizations to demonstrate why their programs do not undermine the goal of invalidating terrorist organizations and their illegal activities. 

Finally, to address some of the concerns associated with anticipatory prosecution, it is important to institutionalize a tiered system of punishment to acknowledge the sensitive balance between civil liberties and security. Those with stronger evidence of direct intent to harm the United States will face harsher sentences, while those who only flirted with violent fundamentalist ideologies (such as the Lackawanna Six, who never directly engaged in or planned violent actions) would face less severe sentences. 

In a post-9/11 world the United States will have to continue the balancing act between security concerns and the civil liberties that are so dear to this country and its citizens. There is no clear answer to completely address the legitimate concerns of both sides of the debate. Yet with the appropriate measures, the United States can set a precedent of legally and effectively using our criminal legal system to try acts of terrorism with material support statutes while maintaining the American values that uphold that system.