Charity of the Heart and Sword: the Material Support Offense and Personal Guilt

JurisdictionUnited States,Federal
CitationVol. 30 No. 03
Publication year2007


Charity of the Heart and Sword: The Material Support Offense and Personal Guilt

David Henrik Pendle(fn*)

I. Introduction

The prevention of terrorist attacks is a paramount concern for the United States government.(fn1) An invaluable part of the effort is aimed at cutting the economic legs of international terrorism by proscribing Americans from providing financial resources to any foreign terrorist organization (FTO).(fn2) Although the statutory scheme for banning such support, 18 U.S.C. § 2339B, has existed since 1996,(fn3) the government only began aggressively prosecuting the crime after September 11, 2001.(fn4) Since then, much debate has revolved around the appropriate interpretation of the mens rea element of § 2339B.(fn5) Currently, if a donor of material support knows that the recipient has been designated as an FTO or has engaged in terrorism or terrorist activity, the donor is criminally liable, even if the donor intended the aid to be used lawfully.(fn6) Congress has taken the position that all support-even humanitarian and nonviolent aid-strengthens terrorist organizations and their ability to execute terrorist attacks.(fn7) Thus, even support aimed at influencing FTOs to pursue solely peaceful objectives or efforts to aid non-affiliated civilians who live in areas controlled by FTOs can currently be prohibited by § 2339B.

However, this statutory "knowledge standard" raises distressing substantive due process issues in light of the Fifth Amendment's requirement that criminal statutes punish those with personal guilt. "The doctrine of personal guilt is one of the most fundamental principles of our jurisprudence. It partakes of the very essence of the concept of freedom and due process of law."(fn8) The doctrine provides that guilt is personal, and it "ought not lightly be imputed to a citizen who ... has no evil intentions or consciousness of wrongdoing."(fn9) In the seminal case addressing the intersection of personal guilt and criminal organizations, Scales v.United States,(fn10) the Supreme Court announced a test to determine whether personal guilt is satisfied: when a punishment is imposed on a person because of that person's relationship with a criminal organization, the Due Process Clause of the Fifth Amendment(fn11) requires that the relationship between the individual's conduct and the criminal activity of the organization be substantial.(fn12)

Section 2339B may run afoul of the Scales test because there are many situations where a donation from a donor with an innocent intent may have no relationship to international terrorism, yet personal guilt is nonetheless imputed to the donor. One district court determined that in order to cure § 2339B of this constitutional pitfall, a specific intent standard should be read into the statute, which would render a donor liable only if the donation was specifically intended to support the illegal aims ofanFTO.(fn13)

This Comment contends that, while the knowledge standard is constitutionally infirm, the specific intent standard, under Scales, is constitutionally unnecessary. The specific intent standard is also unduly burdensome for the government, as it permits skillful terrorist sympathizers to evade detection and slip through the prosecutorial net. However, another intent level exists that can cast a net equipped with a far finer mesh: recklessness. Section 2339B should be amended to require that a donor of material support have a reckless intent. A recklessness standard passes constitutional muster under Scales, and simultaneously preserves the government's ability to deter support for terrorism.

In Part II, this Comment details the designation process of FTOs and examines the wide array of purposes and activities in which FTOs engage. Part III chronicles how § 2339B has evolved through amendments and judicial interpretation. Part IV establishes that Scales controls the personal guilt analysis and identifies due process concerns implicated by Scales that have been overlooked by the courts. Finally, Part V argues a recklessness standard is the most appropriate fix to § 2339B and proposes a model amendment to that end.

II. The Designation and Spectrum of Foreign Terrorist Organizations

Section 2339B acts as a uniform prohibition on the provision of material support to FTOs. But not all FTOs operate in a uniform manner, which can create serious due process implications. The following Part explains how and why organizations are designated as FTOs. And, in order to appreciate how a recklessness standard would apply to a spectrum of FTOs, this Part also analyzes and attempts to categorize FTOs through three distinctions that highlight their important differences.

Discretion to designate an organization as an FTO is afforded to the U.S. Secretary of State under 8 U.S.C. § 1189.(fn14) The Secretary must determine that (fn14) "the organization is a foreign organization;" (2) "the organization engages in terrorist activity;"(fn15) and (3) "the terrorist activity of the organization threatens the security of the United States."(fn16) Then Congress must approve the Secretary's designation for the organization to be registered.(fn17) An organization being considered for designation need not be notified and has no right to be involved in the designation process.(fn18) However, once designated, an FTO has the right to challenge the designation in the Court of Appeals for the District of Columbia Circuit.(fn19) There are several ramifications for an organization so designated,(fn20) including the applicability of the material support statute.(fn21)

Forty-two organizations have been designated as FTOs as of October 2005.(fn22) From the Basque Fatherland and Liberty group in Spain, to the Aum Shinrikyo of Japan, to the Revolutionary Armed Forces of Colombia, to al-Qaeda, the designated organizations span the globe and the ideological spectrum.(fn23)

Three distinctions help illustrate the fundamental differences among FTOs. First, some have peaceful political goals-like securing rights or freedoms through self-determination-while others have seemingly unrealistic or patently iniquitous goals-like changing the global structure and killing large segments of human society. Representing the former group are such FTOs as the Kurdistan Workers Party (PKK)(fn24) and the Liberation Tigers of Tamil Eelam (LTTE). In particular, the PKK, a designated FTO since 1997,(fn25) exists to "establish an independent, democratic Kurdish state in the Middle East."(fn26) The Kurds, who number between 15 and 20 million, speak their own language, have their own culture, and live in a region of the Middle East known as Kurdistan, which spans contiguous parts of Turkey, Iran, Iraq, and Syria.(fn27) Efforts to create an independent Kurdistan began after the dissolution of the Ottoman Empire, but the results have often been disastrous.(fn28) The Kurds have faced bans on their language and traditional clothing, forced migration and dilution, and sometimes outright annihilation.(fn29) Similarly, the LTTE "seeks to protect the human rights of Tamils in Sri Lanka" and to create an autonomous Tamil homeland in northeastern Sri Lanka.(fn30)

In contrast to FTOs created for the sole purpose of acquiring autonomy, some FTOs are not satisfied with merely establishing an independent state or sparking political change; instead, these FTOs harbor additional, politically unimaginable or intrinsically violent objectives. For example, the Palestine Islamic Jihad is committed to the "destruction of Israel through holy war."(fn31) Another example is al-Qaeda, which exists to "establish a pan-Islamic Caliphate throughout the world."(fn32) These organizations, in contrast to the PKK or LTTE, necessarily need violence to accomplish their objectives. However, organizations are not designated as FTOs because of their choice of ends; rather, it is the organization's choice of means that causes it to be so designated.

The second distinction looks at the FTO's means. Some FTOs are categorized as "dual method"(fn33) organizations because they engage in both violent methods and legitimate political or humanitarian efforts. Other FTOs are categorized as "single method" organizations because they primarily use terrorism to further their objectives.(fn34)

For example, with varying consistency,(fn35) the PKK has engaged in sporadic "rural-based insurgency activities,"(fn36) but the organization has also "sponsored] international political forums, peace conferences, and [Kurdish] cultural festivals."(fn37) Thus, because of the breadth of sponsored activities, members of dual method organizations could conceivably support only peaceful projects and need not necessarily endorse their organization's use of violence.(fn38) At the other end of the spectrum are single method organizations, like al-Qaeda, which admittedly have little interest in peacefully obtaining their goals and instead commit themselves to executing catastrophic terrorist attacks aimed at coercing their enemies into submitting to their demands.(fn39) For example, an al-Qaeda Training Manual, discovered and seized by British police in Manchester, states that "Islamic governments have never and will never be established through peaceful solutions and cooperative councils."(fn40)

A third important characteristic to take into account when...

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