UNITED STATES ANTITERROR LAW IS MISSING THE MARK: CHANGING THE MATERIAL SUPPORT STATUTE TO HIT THE TARGET.

AuthorTilton, Tessa Beryl

Introduction 1044 I. The Prosecutorial Advantages Under the Material Support Statutes 1049 A. Limited Criminal Intent Component 1050 B. Prevention Approach 1052 C. Jurisdictional Reach 1053 II. The Problem: United States Antiterror Law Is Missing the Mark 1055 A. The Current Designation Processes 1055 1. Foreign Terrorist Organization Designation 1056 2. Specially Designated Global Terrorist Entities 1057 B. The Legal Inconsistency 1058 C. The Factual Inconsistency: Realities of Modern-Day Terrorism 1060 III. The Solution: An "Inclusive Approach" 1062 IV. Counterarguments and Responses 1065 A. Expanding Criminal Liability 1065 B. Undermining Diplomacy Efforts 1067 Conclusion 1069 "The fact is that terrorist groups behave much like deadly viruses. Their reach is global in nature, they are tenacious, and they adapt quickly to increase their chances of survival." (1)

INTRODUCTION

The September 11 attacks in 2001 not only shocked the world, but also spurred vast change in the U.S. government's strategy for fighting terror at home and abroad. (2) The U.S. Department of Justice (DOJ) realized that an approach focused on prevention--as opposed to reaction--was vital to protect national security in the future. (3) This prevention approach honed in on disrupting funding for terror groups. (4) At the core of the DOJ's prevention approach was the "material support" legislation under the Antiterrorism and Effective Death Penalty Act of 1996. (5)

This legislation, specifically 18 U.S.C. [section] 2339B, (6) operates under the reality that money is "fungible." (7) In other words, any kind of "material support or resources," (8) even if given to a terror organization for political purposes or humanitarian aid, allows the organization to siphon other funds for the planning and commission of illegal acts. (9) Congress recognized "that terrorist organizations can have multiple wings, [including] military, political, and social, and that material support to any of these wings ultimately supports the organization's violent activities." (10)

Although [section] 2339B's primary purpose is to target terror funding, (11) the statute proscribes other kinds of support as well. (12) The scope of [section] 2339B is found in [section] 2339A, (13) which encompasses practically any kind of aid imaginable. (14) Specifically, [section] 2339B criminalizes the act of knowingly providing "material support or resources" to "foreign terrorist organization[s]" (FTOs). (15) Because the definition of support is so broad, (16) the FTO designation essentially "makes the [organization] 'radioactive' to persons within U.S. jurisdiction." (17)

Under the Immigration and Nationality Act of 1965 (INA), the State Department is responsibile for designating groups as FTOs. (18) Currently, the State Department has designated sixty-six organizations. (19) Unfortunately, the State Department's FTO designation process is political and slow to adapt to changing circumstances. (20) For example, the State Department designated the group "Jam'at al-Tawhid wa'al Jihad" as an FTO in 2004. (21) The group's leader, the infamous Abu Musab al-Zarqawi, (22) changed the name of the organization two days later. (23) It took the State Department approximately ten weeks to amend the FTO list to reflect the changed name. (24) This loophole is important: "If an organization is not designated as a[n] FTO at the time support is provided, there is no crime" under [section] 2339B. (25)

Fast forwarding to nearly two decades after the September 11 attacks, the government has used [section] 2339B more than any other statute to prosecute terrorism. (26) Despite inadequacies, [section] 2339B has been a relatively effective means of prosecuting supporters of terror. (27) Yet, the United States needs to recognize that as national security law has changed to accommodate the rise of terrorism in the world, terror networks have also evolved. (28) Although many of the greatest terror threats to the United States come from already designated FTOs, (29) many threats to national security come from amorphous and expansive terror networks and the trend of "homegrown violent extremists." (30) Prosecutors now face difficulties because organizations use front companies, suborganizations, and "offshoots" with other names. (31) These fronts and offshoots are still a part of the larger terrorist network, and they work towards the same detrimental goals. (32) But if an individual gives support or resources to a terrorist organization that the State Department has not designated as an FTO, federal prosecutors cannot indict that individual under [section] 2339B. (33)

This Note argues that the language in [section] 2339B should be more inclusive. The language should read: "Whoever knowingly provides material support or resources to a foreign terror organization," (34) or other organizations that dominate and control, or are dominated and controlled by, or affiliated with a foreign terrorist organization, (35) "or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life." (36) Adding this language to the statute enables a more effective means to prosecute those who support terrorist organizations, and closes the loophole in U.S. law. (37)

Adding more inclusive language would still put the onus on the government to prove the defendant's requisite mens rea. (38) Under this proposal, the government would have to prove two elements: first, that the defendant knowingly provided material support, and second, that the defendant knew the material support was going to an FTO, (39) or a group that (1) was dominated and controlled by an already designated FTO, (40) (2) dominated and controlled an FTO, (41) or (3) at the very least, was affiliated with the FTO. (42) This statutory reform would allow the government to prosecute members of front organizations and offshoots within the overarching terrorist network, regardless of whether the defendant provided material support to an officially designated FTO. Conversely, this inclusive approach would extend to individuals providing material support to an "umbrella" organization, if the State Department already designated the offshoot or smaller organization as an FTO. (43) This proposal creates a dynamic solution for a dynamic problem. (44)

Part I outlines why prosecution under the material support statutes is effective. Federal prosecutors bring most terrorism charges under [section] 2339B because the statute has a limited mens rea component, (45) allows prosecutors to act preemptively, (46) and has expansive extraterritorial jurisdiction. (47) Part II juxtaposes the current law and U.S. legal designations with the current reality of modern terror organizations, and shows how U.S. antiterror law is missing the mark. Specifically, this Part addresses the myth that terror groups are single, organized units. Instead, terror networks are massive, constantly changing organizations comprised of many smaller groups. (48) Next, Part III argues to reform the language of [section] 2339B. Finally, Part IV addresses counterarguments.

As terrorist organizations "adapt quickly to increase their chances of survival," (49) U.S. antiterror law also needs to change. Thus, Congress should close the existing loophole, and add the phrase, or other organizations that dominate and control, or are dominated and controlled by, or affiliated with a foreign terrorist organization, (50) into [section] 2339B.

  1. THE PROSECUTORIAL ADVANTAGES UNDER THE MATERIAL SUPPORT STATUTES

    Overhauling the material support statutes is unnecessary. Section 2339B is a powerful prosecutorial tool, (51) and offers several advantages that this Note's proposed statutory reform would not affect. (52) There are three main reasons prosecutors have widely used [section] 2339B. First, [section] 2339B has a unique mens rea component that does not require the prosecution to connect the "material support" to the criminal terrorist activity. (53) Second, [section] 2339B allows the government to prosecute preemptively if there is evidence of "material support" before a terror act has occurred. (54) Third, [section] 2339B has extensive jurisdictional reach. (55)

    1. Limited Criminal Intent Component

      Section 2339B's first advantage is that it does not have an onerous mens rea component. This "limited criminal intent component" (56) requires the government to prove criminal liability through two knowledge elements: that the defendant (1) knowingly provided "material support" to the organization, and (2) knew that the organization was a designated FTO or engaged in terrorist activity. (57) In other words, Congress does not require specific intent under [section] 2339B. (58) The defendant only has to knowingly give "material support or resources" to an FTO, but does not have to intend for that aid to further the FTO's criminal enterprise. (59) Prosecutors do not have to prove that the defendant's aid actually helped materialize a criminal act. (60)

      The Supreme Court considered this issue in Holder v. Humanitarian Law Project. (61) The case involved two designated FTOs: the Kurdistan Workers' Party, and the Liberation Tigers of Tamil Eelam. (62) Six domestic organizations sued, claiming that [section] 2339B criminalized their aid supporting the groups' "humanitarian and political activities." (63) The plaintiffs challenged [section] 2339B on the grounds that it was unconstitutionally vague under the Fifth Amendment, and that it violated their freedoms of speech and association under the First Amendment. (64)

      The Supreme Court rejected the plaintiffs' claims, holding that "Congress plainly spoke to the necessary mental state for a violation of [section] 2339B, and it chose knowledge about the organization's connection to terrorism, not specific intent to further the organization's...

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