The Supreme Court decided Wednesday to review a challenge to a Clinton administration era law that makes it illegal to provide material support to foreign terrorist organizations. Meanwhile an amendment by Senator Russ Feingold also throws into question an extremely important legal tool against terrorists and those who fund them.
The court’s decision to consider a case challenging the prosecution of persons who provide training or advice to terrorist groups for ostensible humanitarian purposes came as Congress considers extending portions of the Patriot Act that are due to expire at the end of the year. Senator Patrick Leahy, chairman of the Senate Judiciary Committee, last month introduced S. 1692, the USA PATRIOT Act Sunset Extension Act of 2009. The Committee began considering today and is scheduled to take it up again Oct. 8. The Leahy Bill is designed to extend, with additional safeguards, roving wiretaps and other provisions of the PATRIOT Act that were rushed through Congress after 9/11.
(Meanwhile, Senator Dianne Feinstein, chairman of the Senate Intelligence Committee, said that as a result of modifications made by Senator Leahy concerning electric surveillance, she had dropped her concerns that the bill might hinder the ongoing investigations into a suspsteced bomb plot in New York,, the Associated Press reported.)
Senator Feingold, a Wisconsin Democrat, in September introduced his bill, S 1686, that would make more drastic revisions. The bill includes two sleeper provisions that could undermine counterterrorism efforts that go back to 1996 and amount to throwing the baby out with the bathwater.
If Congress did pass the Feingold amendment undermining the existing 1996 material support law against supporting foreign terrorist organizations, the United States would lose an extremely important counterterrorism tool conceived and enacted during the Clinton administration to curb the flow of funds and other forms of support to foreign terrorist organizations such as Hamas and Hezbollah. These and other foreign terrorist organizations have attacked thousands of civilians, including Americans, in numerous countries.
For more background on the Patriot Act legislation, I commend the earlier posts on the blog by the Investigative Project on Terrorism (IPT): the overview piece on Sept. 25 and the Sept 18 article on Senator Feingold’s amendment to the Material Support provisions originally enacted in 1996.
Those who contend that the material support law blocks humanitarian assistance to needy peoples or amounts to “guilt by association” are wrong and do not understand the realities of the terrorism world.
To help understand the rationale and importance of existing material support law, some additional history and background are important. (I’ll leave it for others for now to comment on the “roving wiretaps” and other provisions of the Patriot Act.)
There are actually two material support provisions enacted in the Antiterrorism and Effective Death Penalty Act (ADEDPA) of 1996. (P.L. 104-132, 100 Stat.)
One, Section, 2339A, makes it a crime to knowingly provide material assistance for individual acts of terrorism, whether or not they were committed by a previously known and designated terrorist group. It is a modified version of an amendment enacted several years earlier.
The issue in the Supreme Court and the Feingold bill revolves around the second provision, Sec. 2339B (1) that makes it a federal crime to knowingly provide financial support or other forms of material support to groups that have been formally designated as Foreign Terrorist Organizations (FTO’s) by the Secretary of State with the concurrence of the Attorney General and the Secretary of Treasury. The measure was developed during the Clinton Administration by career officials. (I was involved in the conception and drafting of the provision while serving in the State Department Office of the Coordinator for Counterterrorism.) We were prompted by intelligence reports and other signs that some terrorist groups were increasingly using “charitable” organizations or front companies to obtain funds rather than rely on robberies or upon Iraq, Libya, Iran and other terrorist supporting countries.
An interagency team of State, Justice and Treasury Department officials began refining the material support and related provisions in 1994 after an American immigrant to Israel, Dr. Baruch Goldstein, fatally shot 29 Palestinians at a mosque in Hebron and Hamas conducted a string of terrorist bombings in Israel, including bus bombings, killing 53 persons and wounding dozens more. Goldstein was linked to the extremist Kahane Chai group. That small group, as did Hamas and other groups involved in terrorism, raised funds in the United States and overseas. The material support provisions, along with other counterterrorism sections, were incorporated in a major counterterrorism bill introduced in Congress in January 1995, by Senator Joseph Biden, then chairman of the Senate Judiciary Committee member, and other members.
The measure has been extremely useful. Since 9/11, Justice Department prosecutors have brought Foreign Terrorist Organization material cases against 120 persons and individuals, and obtained convictions in about half. The pace of cases has continued in recent years as figures obtained from the Justice Department in early 2007 showed 106 cases, with six convictions and 26 persons pleading guilty. Justice Department officials have said that "the material support statutes have been a cornerstone of our success in terrorism financing cases as well as in a wide range of other cases addressing all types of support to terrorism. (From a June 22, 2006 white paper cited in my co-authored book "The Evolution of U.S. Counterterrorism Policy, chapter on legislation, Greenwood Press, December 2007.)
Furthermore, the material support provisions may have had an effect of making some people think twice about where they send charitable contributions. Enactment of the measure in 1996 also helped serve as a model for other countries that were strengthening their counterterrorism laws to comply with UN Security Council Resolutions.
The original Clinton administration material support amendment included a provision that would allow financial contributions to the terrorist organizations if it could be demonstrated that the funds actually went to specific medical and humanitarian purposes such as the purchase of specific medical supplies. However, in a working meeting between administration officials and the Senate Judiciary Committee staff, an aide to then Senator Spencer Abraham, a Michigan Republican with many Arab American constituents in the Detroit suburb of Dearborn, rejected the provision, saying the recipient “charity” organizations would not allow the opening of their books for inspection. The medical and humanitarian provision amendment had no visible support from other staff and it was dropped. In any event, it would be difficult to enforce as these secretive groups are not likely to engage in accurate bookkeeping.
Later, the Senate-House conference that forged the final version of AEDPA incorporated a provision (Sec. 301 (7) that declared: “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct." In effect Congress took the position that money is fungible and that even if an organization has non-terrorist wings, the contributions and other forms of materials support free up resources that can be used for terrorist attacks.
Furthermore, Hamas and terrorist groups in Egypt and elsewhere that run clinics or schools exploit these “humanitarian” operations to recruit supporters and potential operatives. Funds for this purpose are more important than the relatively small amount of money needed to assemble suicide bombs.
Sen. Feingold’s amendment, Section 502 of his bill S. 1686, would severely undermine the material support provision by inserting into Sec 2339B (a) (1) language that says the contributions to such groups would be illegal only if assistance was provided “knowing or intending that the material support or resources would be used in carrying out terrorist activities.”
If enacted, the Feingold amendment would make it easy for persons indicted for providing funds, financial services, or even physical support, such as vehicles, to claim they did not know the assistance “would” be used for terrorist activities—even though the organization had been formally designated as a terrorist organization after a long administrative record process as mandated by the 1996 law. The list of the 45 currently designated terrorist groups is posted on the State Department's website and is also available elsewhere.
In a brief reference to his bill during introduction, Senator Feingold said the provision was intended for humanitarian purposes. His staff did not respond to repeated telephone and email requests for a fuller explanation of the Senator’s rationale for such a sweeping revision.
Professor David Cole of Georgetown University, a long time opponent of the antiterrorism provision who has been involved in some of the court cases, was quoted by Reuters as saying as he has in the past, that the material support provision resurrects “guilt by association” and makes it a crime for U.S. human right groups to provide human rights training.” The professor has made similar statements in the past and they remain hyperbole and inaccurate. Indeed, the 9th Circuit Court of Appeals, which in 2002 supported a challenge to the provision as unconstitutionally too vague in restricting training and personnel, did not agree that the provisions violated the First Amendment by imposing guilt by association rather than through culpable actions.
The Humanitarian Law Project, which brought the case, said it wanted to provide human rights advocacy training to the Tamil Tigers (LTT) in Sri Lanka and the PKK in Turkey. Both groups have committed repeated terrorist attacks directed against civilians. The Tamil Tigers, which are now pretty much defeated, pioneered the use of suicide bombs. If these groups were seriously interested in human rights, they could have stopped targeting civilians long ago. If they put a priority on allowing medical assistance to their own people, they could allow outside medical and relief groups into territory they control without requiring them to work under their auspices.
There are any numbers of organizations, such as the Red Crescent, Doctors Without Borders, that can provide medical and other humanitarian assistance and are not tainted by involvement in terrorist activities. This point was made when senior State Department and Justice Department officials met with representatives of a dozen Arab American groups in late 1994 before the AEDPA was introduced. However they attacked the bill even before reading the legislation, with the humanitarian provision I mentioned. One result was that their protests, made public in the American-American press, apparently resulted at least temporarily in a decline in Hamas fund raising in the U.S.
Some legitimate fine tuning can be considered in the material support provision, especially to streamline consideration of asylum for persons who might have been forced to provide food or other support for terrorists. This was the case with some Burmese and others who provided food or other support under duress, especially in rural areas, to groups such as the Karen National Union and Karen National Liberation Army. The Senate Judiciary Committee Subcommittee on Human Rights and the Law held hearings in September, 2007 and later that year President Bush signed a law (PL 110-161) that contained a provision that streamlined the procedures for persons seeking admission to the U.S. if they had provided material support under duress. Section 212(2) (3) B (i) of the immigration and National Act, 8 U.S.C 1182.
Inserting a killer provision into the existing law as proposed by the Feingold amendment would be using a sledge hammer instead of a chisel. The amendment, allegedly for humanitarian purposes, will make it more difficult to save innocent lives by convicting terrorists and getting them out of circulation and/or deterring their potential supporters.
Senator Feingold’s bill also includes an amendment, Sec. 501 that would narrow one of the definitions in U.S. laws. He would delete the definitions in 18 USC Sec 2331(1) (B), which include “activities intended to coerce civilian populations or governments and to affect the conduct of a government by mass destruction, assassination or kidnapping.”
Defining terrorism is a controversial and difficult issue. Endless hours of discussions have been held in conferences here, in the United Nations and abroad. Thousands of pages of articles have been printed. By one academic account there are at least 110 published definitions of terrorism. U.S. law contains at least three.
The issue should not be dealt with casually by a "by the way" amendment in a markup or on the Senate floor. This not the time to narrow the definitions, especially as the threat of terrorists obtaining biological or other weapons of mass destruction is a growing concern.
Both Feingold amendments should be shelved. The country would be better served by waiting, while the Supreme Court proceeds with the case in front of it.