Sunday, March 13, 2011
Wadie E. Said (University of South Carolina School of Law) has posted The Material Support Prosecution and Foreign Policy (Indiana Law Journal, Vol. 86, No. 2, 2011) on SSRN. Here is the abstract:
Since September 11, 2001, the chief statute for charging terrorism suspects in federal court has been 18 U.S.C. § 2339B, which criminalizes the provision of material support to designated foreign terrorist organizations (FTOs). Where previous terrorism prosecutions revolved around punishing offenders for acts of violence that had already occurred, the new focus on material support-type prosecutions was engineered to aid in preventing terrorism activity from taking place in the future. What has been left largely unexplored is what § 2339B litigation reveals about the United States' position on political violence and the groups that carry it out.
Although the federal courts have consistently narrowed the framework in which a criminal defendant accused of engaging in or supporting terrorism can make arguments rooted in political or religious belief, the nature and conduct of terrorism prosecutions themselves have the potential to make such arguments relevant nonetheless. A review of the process by which groups are designated as FTOs reveals that the government has taken a de facto position that all political violence perpetrated by nonstate actors is terrorism. There are currently no standards or guidelines defining when nonstate political violence can be justified or even excused. Further, § 2339B prosecutions operate under the theory that "money is fungible," and that support sent to terrorist groups for charitable purposes frees up money for violence. This theory, when coupled with the current vagueness of the FTO designation process, has profound implications for the Fifth Amendment due process rights of defendants charged under the statute.
This Article advances two main recommendations. First, the government should have to articulate when and under what conditions, if any, nonstate groups might be allowed to engage in violence. Such an explicit standard would provide a more legitimate legal basis for prosecutions of individuals charged with supporting FTOs and prevent such prosecutions from selective and inappropriate attempts to create or assert foreign policy. Second, the "money is fungible" theory should be subjected to a more extensive review. While the theory seems to make sense on an abstract level, the prosecution should have to make a specific showing that humanitarian support to a given organization does in fact facilitate violence. This showing is necessary in cases where the government never contends that the defendant planned or carried out any violent activity. Otherwise, the courtroom risks being turned into a forum in which to have a foreign policy debate that might lead to the unjust conviction of § 2339B defendants.