A Hungry child should know no politics: how the U.S. material support statute has excessively criminalized humanitarian relief and has unintentionally barred innocent asylum-seekers from the United States

• Author: Anastasia Bradatan
• Position: Anastasia Bradatan is an LLM student specializing in National Security at Georgetown Law
• Pages: 473-492

NOTES

A HUNGRY CHILD SHOULD KNOW NO POLITICS:

HOW THE U.S. MATERIAL SUPPORT STATUTE

HAS EXCESSIVELY CRIMINALIZED

HUMANITARIAN RELIEF AND HAS

UNINTENTIONALLY BARRED INNOCENT

ASYLUM-SEEKERS FROM THE UNITED STATES

ANASTASIA BRADATAN*

ABSTRACT

The material support statute, aimed at prosecuting those who provide vari-

ous forms of support to terrorism, has been essential in the United States’

ability to combat terrorism. However, the inflexible application of the statute

in immigration law as well as in an international aid context has, at times,

come with dire consequences without benefiting U.S. national security.

Additionally, in an immigration context, there is an inconsistency in the types

of exemptions available for a non-citizen who gives material support depend-

ing on whether the non-citizen is in removal proceedings. The Department of

Homeland Security’s June 2022 authorization of a statutory exemption to the

material support statute for Afghans who assisted U.S. troops provides a tem-

plate for potential future reforms to the material support statute. These poten-

tial future reforms would mitigate some of the drawbacks of the statute.

*Anastasia Bradatan is an LLM student specializing in National Security at Georgetown Law. She

graduated with her JD from Georgetown Law, where she was a member of the Clara Barton International

Humanitarian Law team, a Senior Notes Editor for the Georgetown Immigration Law Journal, a National

Security Law Specialization Program participant, and a member of the Guantanamo Observers Program.

She is currently a Student Contributor for Lawfare, where she has published several articles focused on

Guantanamo Bay-related litigation. Additionally, she has interned with several U.S. Department of Justice

offices. She graduated from the University of Texas at Austin with a bachelor’s degree in International

Relations, Hindi, and Spanish-Portuguese. Prior to law school, she worked as an Immigration Services

Officer at the U.S Citizenship and Immigration Services. © 2023, Anastasia Bradatan.

473

TABLE OF CONTENTS

INTRODUCTION ......................................... 474

I. THE MATERIAL SUPPORT STATUTE IN THE HUMANITARIAN CONTEXT:

THE STATUTE’S ADVERSE EFFECTS ON U.S.-FUNDED HUMANITARIAN

ORGANIZATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 476

A. Case Study: 2004 Tsunami that Devastated Sri Lanka. . . . 478

B. Case Study: Gaza Strip after Hamas Won the 2006

Presidential Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

C. Case Study: The 2008 and 2017 Somalian Famine...... 480

II. THE MATERIAL SUPPORT STATUTE IN AN IMMIGRATION CONTEXT: THE

STATUTE’S ADVERSE EFFECTS ON NONCITIZENS AND LAWFUL

PERMANENT RESIDENTS IN THE UNITED STATES . . . . . . . . . . . . . . . 482

A. USCIS Officers Decisions Regarding Tier III Terrorist

Organizations and The of Granting Waivers........... 484

B. How Immigration Judges Make Determinations Regarding

Tier III Terrorist Groups . . . . . . . . . . . . . . . . . . . . . . . . . 484

C. The Ramifications that Noncitizens Have Faced as a Result

of the Material Support Statute .................... 486

III. THE RECENT EXCEPTIONS CREATED FOR AFGHAN REFUGEES PROVIDES

A MODEL FOR MORE EXPANSIVE REFORM TO THE MATERIAL SUPPORT

STATUTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489

INTRODUCTION

The material support statute, found in 18 U.S.C. Section 2339(a), is “. . .

primarily aimed at reaching those persons who provide material support to

terrorists knowing that such support will be used to commit one of the

offenses specified in the statute.”

1

US DEP’T OF JUST. ARCHIVES, PROVIDING MATERIAL SUPPORT TO TERRORISTS (18 U.S.C. §

2339A) (2020), https://perma.cc/D6C2-VLWB.

Material support under this section is

defined as “. . . any property, tangible or intangible, or service, including cur-

rency or monetary instruments or financial securities, financial services, lodg-

ing, training, expert advice or assistance, safe houses, false documentation

or identification, communications equipment, facilities, weapons, lethal

1.

474 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 37:473