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Saturday, December 13, 2008

Will the Holder DOJ bring sanity to "material support" prosecutions?

The "Material Support" provision of the Anti-terrorism and Effective Death Penalty Act of 1996, 18 U.S.C. §2339B(a) is a troubling measure. The provision makes it a serious criminal offense to "knowingly provide[] material support or resources to a foreign terrorist organization," thereby creating something akin to a strict liability "abetting" offense. Such a law is an open invitation to frivolous or abusive prosecutions -- and I am not convinced that the DOJ has declined the invitation.

Suppose that a college friend who frequents radical mosques asks one to store an old suitcase filled with socks and ponchos in one's house. He says that the stuff is to help out freezing villagers in Waziristan. For letting him keep the stuff in one's apartment, one could be liable for a 15-year sentence, just so long as the government could show that one knew that that friend was affiliated with a terrorist organization. Likewise, suppose that one's brother is kidnapped by Al Qaeda in Mesopotamia, and one pays ransom to get him released. This is a criminal offense under the DOJ's view of the "material support" provision -- and DOJ has yet (to my knowledge) acknowledged any "duress" or "necessity" defense to the statute. The statute has broad extra-territorial reach, such that virtually any resident of the Gaza strip who paid taxes to the Hamas-led government is guilty of violating its provisions.

It is obvious that such a law could sweep into its net lots of morally innocent people who casually give money to family members, mosques, or charities with ties to FTOs. Most organizations that operate in FTO-controlled territory -- the Gaza Strip, the Jaffna Peninsula in Sri Lanka, much of Columbia -- must by necessity pay money to an FTO simply to survive. Most people do not hire private investigators or accountants to trace where their aid ends up, and scienter surrounding donations can turn on coin-toss of a prejudiced jury's verdict. So the sanity of the law depends entirely on prosecutorial discretion.

Do U.S. Attorneys exercise sensible judgment in choosing their targets? As I suggest after the jump, I have my doubts.

The poster child for prosecutors run amok is Fahad Hashmi, the guy who was busted by the feds for storing those ponchos and socks for a friend who flipped to the feds. Hashmi might be an outlier, but the cases touted by the feds as evidence of the law's efficacy strike me as worrisome or even perverse: What, for instance, did the Holy Land Foundation prosecution accomplish, beyond depriving people in the Gaza strip of money for hospitals, which are commonly Hamas-affiliated?

If one were uncharitable, one might suspect that federal prosecutors pursue trivial or harmless targets just to rack up their terrorism-busting numbers to assuage Main Justice that they are taking terrorism seriously -- a suspicion that is fueled by the notorious Covertino case, in which a Michigan prosecutor ended up as a defendant himself (both civilly and criminally) for being over-eager in seeking convictions of three Muslim men.

For libertarian-inclined lawyers, therefore, Holder's position on "material support" prosecutions" will be a matter of intense interest. Some guidelines about what constitutes truly culpable "material support" would be welcome.

Posted by Rick Hills on December 13, 2008 at 10:16 AM in Rick Hills | Permalink


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Do keep in mind that among the things stored by Hashmi were night vision googles--not quite as innocent as ponchos and socks. And that he allegedly reacted violently when arrested at Heathrow, threatening to kill the officers, among other things.
This doesn't mean his detention and prosecution are correct, but it does help to have the complete picture.

Posted by: Anon | Dec 15, 2008 11:22:24 AM

One last comment: In addition to the problems of the "Material Support" provision with regard to the exercise of prosecutorial judgment, I wonder if we might also see this as simply yet another example of the widespread abuse of prosecutorial discretion in general. I'm thinking here of Angela Davis's claim that "In their effort to give prosecutors the freedom and independence to enforce the law, the judicial and legislative branches of government have failed to perform the kind of checks and balances essential to a fair and effective democracy. Consequently, prosecutors, unlike judges, parole boards, and even other entities with the executive branch such as police, presidents, and governors, have escaped the kind of scrutiny and accountability that we demand of public officials in a democratic society. Prosecutors have been left to regulate themselves, and, not surprisingly, such self-regulation has been either nonexistent or woefully inadequate." (See the full argument in her Arbitrary Justice: The Power of the American Prosecutor, 2007).

And this abuse of prosecutorial discretion is exacerbated in many cases by the "growing public defender crisis," the latest incarnation of the general failure to uphold (at least since Gideon v. Wainwright, 372 U.S. 335 (1963), the constitutional right to competent/effective counsel. (See this blog post and links at the Legal Ethics Forum: http://legalethicsforum.typepad.com/blog/2008/11/the-growing-pub.html; Monroe Freedman's article is essential [there's a link to it in the comments])

Posted by: Patirck S. O'Donnell | Dec 13, 2008 12:53:05 PM

Statistics on the exercise of discretion by US federal prosecutors suggest, among other things, "overzealous law enforcement based on flimsy evidence, unverified suspicion, and racial profiling. Excessive enforcement is a response to political and public demands for action against terrorists, by-passing evidentiary controls and investigative protocols. Increased enforcement does not necessarily correlate with any increase in terrorist activity." (Ben Saul, Defining Terrorism in International Law, 2006: 23)

Posted by: Patirck S. O'Donnell | Dec 13, 2008 11:08:50 AM

Despite my constitutional distaste for "libertarian-inclined lawyers," I'm in absolute agreement with the argument of this post. Indeed, you hit the heart of matter: "It is obvious that such a law could sweep [and has swept] into its net lots of morally innocent people who casually give money to family members, mosques, or charities with ties to FTOs." And, as you note, the Holy Land Foundation case is a perfect instance of this.

Thanks for bringing this issue to our attention.

Posted by: Patirck S. O'Donnell | Dec 13, 2008 10:30:51 AM

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