Academic journal article William and Mary Law Review

United States Antiterror Law Is Missing the Mark: Changing the Material Support Statute to Hit the Target

Academic journal article William and Mary Law Review

United States Antiterror Law Is Missing the Mark: Changing the Material Support Statute to Hit the Target

Article excerpt

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)


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. …

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