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Tuesday, June 22, 2010

Is it a federal crime to break Israel's Gaza blockade?

Or pay taxes that end up in Hamas' pocket? Or send a remittance check to a relative in the Gaza strip? SCOTUS's decision in Holder v. Humanitarian Law Project suggests as much. These implications suggest that the real story about the "material support" statute is not its effect on freedom of speech but its extraordinary grant of prosecutorial discretion: By criminalizing all activity that simply has the foreseeable effect of aiding a foreign terrorust organization, the statute absurdly makes the entire population of Gaza and the entire European Union into criminals under U.S. law.

Of course, the European Campaign to End the Siege on Gaza ("ECESG") does not, in theory, coordinate its flotillas to break the Gaza siege with any designated "foreign terrorist organization" ("FTO") like Hamas. But the "material support" statute requires no such coordination or control by the FTO unless the material support in question takes the form of providing "personnel" to an FTO: Section 2339B(h) provides that “[n]o person may be prosecuted under [§2339B] in connection with the term ‘personnel’ unless that person has knowingly provided ... one or more individuals ... to work under that terrorist organization’s direction or control," which the statute defines to exclude "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives" (emphasis added). Chief Justice Roberts relied heavily on this language in declaring that "Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns" (slip opinion at page 30) by "avoid[ing] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups" (id. at page 31). By fairly obvious expressio unius reasoning, the "coordination with/ controlled by" limit is applicable only when the "material support" law is used to target the lending of personnel to an FTO for (among other things) speech-based activities -- picketing, counseling a client, etc. For contributions other than personnel -- say, medical equipment, remittance checks, construction materials, food, etc -- there is no "coordination with/ controlled" by requirement for liability under the statute. Providing a bowl of pasta to a private person that one knows to be a member of an FTO constitutes "material support" to an FTO even if one simply is trying to save that FTO foot soldier from starvation and even if one deplores the FTO's goals, just so long as the government can show that one knew or should have known that the noodles would eventually advance the FTO's goals.

Thus, it is not even a slight stretch of statutory language for some enterprising U.S. Attorney to indict the government of the European Union for providing humanitarian aid to private Gazans. After all, if one helps out Gazans, one provides an indirect benefit to Hamas by saving them the trouble of providing such aid, thereby allowing Hamas to save their resources for rockets to Israel. Such indirect "material support" for Hamas' goals is surely foreseeable: The EU knew or should have known that Hamas' political existence is made easier by Care Packages for Hamas' constituents. That such a prosecution would be crazy as a matter of policy is legally irrelevant, given the sweeping and plain language of the statute.

We are, in sum, dependent entirely on federal prosecutors' assurances that they will exercise common sense in their assessments of proximate cause. The elimination of the traditional requirement of specific intent to aid a crime from the offense of abetting is the real threat to civil liberty posed by the "material support" law. We law profs ought to be publicizing this egregious mutilation of traditional criminal law categories and not hyper-ventilate about some free-speech bogeyman borne of the "cultural magnetism" exercised by the First Amendment (in Fred Schauer's memorable phrase) on the American imagination, a magnetism that leads us Americans to press the First Amendment's boundaries outwards while ignoring the real threat to our liberties that have nothing much to do with speech.

Posted by Rick Hills on June 22, 2010 at 07:58 AM in Constitutional thoughts | Permalink


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Maybe you are correct, Matthew, although I think that you read a lot into what strikes me as cryptic judicial language. In the passage that you cite, the majority states only that "[t]he other types of material support listed in the statute, including 'lodging,' 'weapons,' 'explosives,' and 'transportation,' §2339A(b)(1), are not forms of support that could be provided independently of a foreign terrorist organization. We interpret 'service' along the same lines."

I am doubtful, however, that the Court is really reading so much into the preposition "to." Under such a reading, I could ship arms to the members of Hamas and not be liable for providing "material support" "to Hamas, just so long as I did not coordinate with Hamas and was not under Hamas' control when I made the donation. I assume that this narrow reading of the statute would be rejected by the SCOTUS. Therefore, I assume that the Court is assuming that, if the donor is aware that the individuals receiving the gift are affiliated with a FTO or will end up helping the FTO, then the gift will be treated as being sufficiently directed "to" the FTO.

Posted by: Rick Hills | Jun 22, 2010 5:24:02 PM

Rick, I would have been inclined to the same reading of the statutory language, but I think Holder expressly forecloses the most sweeping interpretations of the statute. At 18 - 19, the majority opinion emphasizes that independent support is never covered by the statute. Though the statutory language only expressly requires coordination for "personnel," the Court concludes that services and other forms of material support, by implication, are not covered by the statute if they are independent.

In the case of "services," the Court imputes a coordination requirement to the meaning of the word "service." For other classes of supplies, the Court seems to rely on the word "to": you're not giving stuff "to" the organization if your activities aren't somehow coordinated with the organization. (Or, presumably, you just give the supplies over to the organization's direct control.)

So if I feed hungry Gazans, even knowing that Hamas will benefit, I'm still not covered, because I'm not giving food "to" Hamas so long as I'm independent of Hamas.

Posted by: matth | Jun 22, 2010 12:46:06 PM

Hear! Hear!...Although this is in keeping with longstanding Israeli and IDF policies that appear based on the presumption that all Gazans are criminals by definition.

Counterfactual historical question: What if this statute had been in effect at Israel's founding?

And this is the same EU that, as a member of the 'Quartet,' rejected the 2006 election results, although they were clearly democratic and represented an opportunity to further encourage the leaders of Hamas to opt for nonviolent strategies and methods, especially in light of the fact that it had generally adhered to a unilateral cease-fire and was "embarked upon a democratic path."

We might also discuss the specific question of designating Hamas an FTO simpliciter, which is not unrelated to the problem at hand. The best scholarship on Hamas (by both Israeli and non-Israeli academics) clearly attests to the folly of thinking of Hamas in these terms, and these terms alone.

(Of course States, democratic and otherwise, still resort to terrorist tactics with egregious impunity.)

Posted by: Patrick S. O'Donnell | Jun 22, 2010 8:52:10 AM

One last point: Lest you think, Gentle Reader, that I exaggerate the effect of the "material support" statute on the capacity of individuals to offer innocent aid to Islamic regions and organizations, you should take a look at the ACLU's report on the effect of our terrorism laws on charitable giving by Muslims to Muslim organizations.

Posted by: Rick Hills | Jun 22, 2010 8:36:07 AM

not to mention the aid the us gov itself gives humanitarian relief agencies that work in hamas controlled gaza.

course-its not a crime when the government does it. but what about officers of the government? i guess there is the entrapment defense-

Posted by: agreed | Jun 22, 2010 8:07:24 AM

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