How do Material Support laws affect civil liberties?

Material support was first outlawed by the Clinton-era Antiterrorism and Effective Death Penalty Act of 1996, but has been amended, clarified and expanded several times since, including in the USA Patriot Act. Material support laws impact our rights in two important ways: hindering U.S. charities from providing humanitarian releif in war-torn areas of the world; and they provide a useful tool for the government to go after activists protesting U.S. foreign policy.

In Terrorism and the Constitution, David Cole and his co-author, DDF Vice President Jim Dempsey, explain what happened:

… after lying virtually dormant for its first six years of existence, the material support law has since 9/11 become the Justice Department's most popular charge in antiterrorism cases. The allure is easy to see: convictions under the law require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. But what makes the law attractive to prosecutors - its sweeping ambit - is precisely what makes it so dangerous to civil liberties.

In a devastating blow for free speech and association, a recent Supreme Court decision (Holder v. Humanitarian Law Project, June 21, 2010), the Court upheld material support provisions that prohibit otherwise protected free speech. The Court said that congress could prohibit conflict resolution, humanitarian aid and other groups from providing training or expert advice to terrorist groups, even when that assistance is aimed at preventing violence.

Material Support and Civil Liberties:

  1. U.S. Charities and Humanitarian Relief
  2. Material Support investigation ensnares 23 peace and solidarity activists
  3. Holder v. Humanitarial Law Project
  4. Gaza Freedom Flotilla
  5. Fahad Hashmi

U.S. Charities

Counterterrorism efforts have disproportionately targeted Muslim charities in the years following 9/11 as law enforcement began to investigate charities and question donors. The policies have “effectively criminalized otherwise legitimate charitable giving, peace-building efforts, and human rights advocacy. Consequently, the vitality and development of civil society within these communities has been significantly inhibited. The research suggests that the frozen assets of major Islamic charities including the criminal prosecution of their officers board members and fundraisers, alarmed Muslim donors. Aziz concludes that the policies enacted as a result of 9/11 are a failure to understand and live up to the core values of the US at its most fundamental level.
Report: Countering Religion or Terrorism: Selective Enforcement of Material Support Laws Against Muslim Charities

The crisis in Somalia highlights the problems of the material support laws. U.S. charities have been prohibited from providing aid to people in areas controlled by al-Shabab not only by the terrorist organization, but by our own material support laws. For example: Save the Children reports that they were not allowed to dig a well in a town devestated by drought because U.S. officials were concerned that members of al-Shabab might drink from the well. As the crisis in Somalia recieved more press attention, U.S. officials finaly relented, on Aug. 2, the State Department announced that U.S. humanitarian groups that provide famine aid to civilians living in areas of Somalia controlled by al-Shabab, will not be prosecuted for violating U.S. law if they act in good faith to reach victims of the famine. Read more….

Sen. Patrick Leahy, in a press release, recognized the flaws in U.S. material support for terrorism laws:

“The current law is so broad as to be unworkable. Aid workers trying to provide relief to starving Somalis fear they could be prosecuted if some of it were to end up in the hands of al-Shabab…The Secretary of State has the power to grant exemptions where the purpose is not to engage in terrorist activity. She should use that authority immediately to ensure aid can reach as many Somalis as possible.”

Defending Dissent Foundation is a member of the Charity and Security Network, which is the leader in advocating for changes to anti-terrorism laws that restrict the work of U.S. charities. Read more here.

Peace, Solidarity and Union Activists

On Friday, September 24, 2010, FBI agents fanned out across the Midwest to raid the homes of twenty activists. Most of the targeted activists lived in Chicago or Minneapolis and were active in anti-war, international solidarity and/or the trade union movement. The early morning raids involved gun-toting agents kicking in doors and spending hours rummaging through personal belongings. Agents carted away cell phones, computers and boxes of paperwork along with children’s artwork, posters and other odds and ends. The offices of the Anti War Committee in Minneapolis and the Arab American Action Network in Chicago were also searched.

No arrests were made, but fourteen activists were served with subpoenas to appear before a Grand Jury in the next few weeks. The search warrants and subpoenas indicate that agents were looking for evidence of material support for terrorism. An FBI spokesperson said that the raids were part of an ongoing Joint Terrorism Task Force investigation.

As of March 24, 2012 (a full 18 months after the initial raid) NO CHARGES HAVE BEEN FILED, but Assistant Attorney Barry Jonas has confirmed that the investigation continues, raising concerns that indictments could be in the offing. Read more...

No arrests were made, and no charges have been brought, so what is going on? The lawyer for one of the activists called the raids a ‘fishing expedition,’ and several of the activists have said they view the searches as an attempt to intimidate them and the movements they are a part of.

The fact that this is part of a material support investigation is extremely worrying because the State Department has virtually no check on its authority to name any group a Foreign Terrorist Organization (FTO), and the definition of material support is so broad and so vague. As Jim Dempsey and David Cole explain in Terrorism and the Constitution, “convictions under the law require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. But what makes the law attractive to prosecutors - its sweeping ambit - is precisely what makes it so dangerous to civil liberties.”

Unfortunately, the recent Supreme Court decision in Humanitarian Law Project v. Holder affirmed that ‘sweeping ambit’ and made clear that ‘material support’ includes not just material items, but intangibles such as training, assistance in conflict resolution or other activities designed to promote non-violence and human rights. This decision tremendously complicates the work of solidarity activists.

The activists who were targeted in the raids were involved in solidarity work with the people of Palestine and Columbia, and that is what appears to have prompted the raids. The search warrants directed agents to look for evidence of material support of FARC (Revolutionary Armed Forces of Columbia), Hezbollah and PFLP (Popular Front for the Liberation of Palestine). The problem is, one can be found guilty of material support for interacting with a group that is not an FTO, but that the government alleges is in cahoots with an FTO. The leaders of the Holy Land Foundation were convicted of material support for donations the Foundation made to zakat committees (small, local charities in Gaza) because the government said they were controlled by Hamas (an FTO). In Columbia, the government deems any trade union and any group that opposes the government to be allied with FARC.

The search warrants and subpoenas were far-reaching: all foreign or domestic travel records, personal financial records, and lists, address books or notes of personal contacts in the U.S. or abroad. The expansive list of ‘evidence’ sought led one of the lawyers to deem them “kind of unconstitutional and hideous.” Here's a copy of one of the search warrants and the Grand Jury subpoena.

Grand Juries have been used to gather information about political groups, intimidate and even jail activists. They are an effective tool for a number of reasons:
• They are run by the prosecutor; no judge or defense lawyer is present.
• Witnesses are not allowed to have a lawyer present.
• Normal rules of evidence do not apply; prosecutors can ask witnesses about anything and they are compelled to answer.
• Witnesses refusing to answer based on the First Amendment can be cited for contempt and jailed for up to 19 months.
• Witnesses asserting their Fifth Amendment rights can be forced to accept immunity or be cited for contempt and jailed for up to 18 months if they refuse immunity.

This all adds up to a process that can allow the government to gather information about political movements and/or disrupt those movements. Grand Juries have been used several times in recent years against the environment and animal rights movements. (click here for a look at Grand Juries and the animal rights movement)

The response to the raids was swift and inspiring. Just days following the raids, we (the activist community) managed to pull together at least 60 protests at FBI offices or Federal Buildings in towns and cities across the country. Many of the protests were pretty impressive: over 500 people came out in Minneapolis and 350 in Chicago.

Over 90 peace, solidarity and other groups have issued statements of solidarity, including the San Francisco Labor Council and AFSCME Council 5. The raids were denounced at the One Nation Working Together rally in Washington on October 2. The National Lawyers Guild, Defending Dissent Foundation and several other groups have begun organizing educational events to brief activists on their rights. Stephanie Weiner, one of those raided and subpoenaed, told supporters,
"This is an attack on the anti-war movement, but the strong response of our movement, where more than 61 protests in cities across the country, makes it absolutely clear that this is about more than just 14 activists in the Midwest. It is an attempt to limit the voice of anti-war, peace, and international solidarity activists".

What you can do: Sign the pledge to resist FBI and grand jury repression by continuing to speak out, protest and fight back! Many cities and towns are planning emergency protests should any of the activists be indicted.

The five activists who were scheduled to testify before the Grand Jury on October 5 announced their intention to invoke their Fifth Amendment right not to testify in letters to the Assistant U.S. Attorney. Joe Iosbaker, one of the five, explains why,
"We have nothing to say to a Grand Jury. Most people do not understand how secretive and undemocratic the Grand Jury is. I am not allowed to have my lawyer with me. There isn’t even a judge. How strange is that? It is the U.S. prosecutor with 23 people they hand picked to pretty much rubber stamp whatever the prosecutor says. A person is defenseless in that situation".

Although their subpoenas for October 5 have been cancelled, they could be reissued at any time. The remaining nine activists have said they will refuse to testify also.

Scope of Probe Widens (November, 2010)
National Protests (January 2011)
Treasury Freezes Assets (May 2011)
Victory! Assets released!(May 2011)
The harassment continues, but NO charges have been filed as of yet!

Holder v. Humanitarian Law Project

Obviously it is a criminal act to provide weapons, money or other material support to Al Qaeda or other terrorist organizations. But what if you want to teach a terrorist group how to lay down their arms and resolve conflict peacefully? Isn't that political speech protected by the First Amendment?

On February 23, the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project (HLP), an important case challenging the Constitutionality of the material support provisions in the USA Patriot Act. The case has been well-covered by NPR and other outlets, but to briefly summarize: HLP is a thirty year old human rights organization that has, since 1991 advocated for peace and human rights for Turkey's Kurdish minority. One of the groups HLP regularly worked with was the Kurdistan Workers Party (PKK), providing training and assisting them in human rights advocacy. But when the PKK was designated by the U.S. as a terrorist group, that peace-building work became illegal because it was deemed "material support of terrorism."

David Cole, a longtime ally of DDF, represented HLP before the Supreme Court. He argued that the material support provisions of the Patriot Act violate the First Amendment because they outlaw speech and censor advice and training on entirely peaceful and legal activities. "It is core political speech on issues of public concern; it is advocating only lawful, peaceable activities. This court has never upheld the criminal prohibition of lawful speech on issues of public concern." Cole also made a distinction "between aid that is intended to further lawful activity and aid that is intended to further illegal activity."

But on June 21, 201, the Supreme Court upheld those material support provisions in a 6-3 ruling.

Kay Guinane and Suraj K. Sazawal at the Charity and Security Network noted how nonsensical the ruling is: "Imagine a school where the principal's rules prevent a teacher from telling a bully to stop picking on another child". That is essentially what the Supreme Court told U.S. peacebuilding groups in its June 21, 2010 decision in Holder v. Humanitarian Law Project (HLP)".

David Cole, who argued the case for HLP, said of the ruling, "The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong".

The Supreme Court's decision puts many peacebuilding programs which should be protected by the First Amendment, into jeopardy. President Jimmy Carter, founder of the Carter Center, commented on the ruling:

We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' - which is aimed at putting an end to terrorism - actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.

Analysts have noted that President Carter's work for fair elections in Lebanon would fall under material support, since he worked with Hezbollah, a designated terrorist group.

There is a silver lining to this terrible ruling: it has shined a light on how problematic material support provisions are. DDF will be working with our partners in the Charity and Security Network to press Congress to conduct investigations and hold hearings to look into the assumptions behind the current law and press for legislation to allow humanitarian aid workers and peace-builders do their work without the threat of criminal charges.

Gaza and Material Support

The fact that Hamas (a designated terrorist group) controls Gaza presents problems for U.S. charities who want to provide aid to the residents of Gaza. The hoops they must jump through to prove they are not providing material support to Hamas are daunting and counterproductive. So it was not surprising when, after the Gaza Freedom Flotilla was raided by the Israel Defense Forces killing 9 people, Representative Brad Sherman (D-CA) called for the arrest of any Americans involved in the flotilla. "The Antiterrorism and Effective Death Penalty Act of 1996 makes it absolutely illegal for any American to give food, money, school supplies, paper clips, concrete or weapons to Hamas or any of its officials," Sherman said. "And so I will be asking the Attorney General to prosecute any American involved in what was clearly an effort to give items of value to a terrorist organization." The aid was intended for the people of Gaza, not Hamas, but Sherman's diatribe does illustrate the broad reach of the material support provisions.

"Shape Shifting" Material Support

Fahad Hashmi is a U.S. citizen charged with providing material support to al Qaeda. His case really illustrates how dangerous the material support laws can be:

Material support laws are the black box of domestic terrorism prosecutions, a shape-shifting space into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Their vagueness is key. They criminalize guilt by association and often use political and religious beliefs to demonstrate intent and state of mind.
- Jeanne Theoharis (

In 2004, while living in London, Hashmi let an acquaintance stay with him for two weeks. The acquaintance, Junaid Babar, stored luggage containing raincoats, ponchos and socks in Hashmi's apartment and borrowed Hashmi's cell phone on occasion. Babar later delivered the raincoats and socks to al Qaeda, and the government says that he was calling terrorists on Hashmi's phone.

These are the basics of the case against Hashmi. The government says it has more evidence, but it's classified so Hashmi can't see it. In addition to secret evidence, the government will be allowed to introduce Hashmi's political and religious speech and activities in court as evidence of his intent

The terms of Hashmi's confinement, under Special Administrative Orders (SAMs) raise additional concerns. He's been held in solitary confinement for almost three years while awaiting trial, held in a small cell for 23 hours per day and kept under constant video surveillance. He is allowed to see no one but his lawyers. SAMs were originally designed to keep jailed leaders of organized crime syndicates from being able to give instructions to their networks, but have been used increasingly in these alleged terrorism cases. Since Hashmi has not been convicted of anything, nor charged with any violent offense, the harsh terms of his confinement don't seem to make sense.

Muslim and anti-war activists in New York have staged weekly vigils to demand that the SAMs be dropped. His trial is scheduled for the end of April

UPDATE: On the eve of his trial, Fahad Hashmi who was held in solitary confinement for three years awaiting trial pled guilty to one count of material support. His decision came after the judge in the case agreed to allow an anonymous jury trial. Hashmi's lawyers called this "a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty."




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