Duke Law School

Civil Liberties Online

PART B: Increasing Government's Ability to Prosecute Acts that Support Terrorism

Prosecutorial Tools: Sharpening the Government's Prosecutorial Tools against Terrorism

Certain provisions of the USA PATRIOT Act create crimes that will enable law enforcement to prosecute acts that might lend support to terrorists, as opposed to terrorist acts themselves.  Such changes seem designed to give government the ability to intercept and obstruct an expanding list of activities that might lend support to future terrorist efforts.

One example is section 803.  Federal law prohibits harboring aliens, 8 U.S.C. ? 1324, or those engaged in espionage, 18 U.S.C. ? 792.  Section 803 creates a separate offense which punishes harboring terrorists.  This offense “ may be prosecuted in any Federal judicial district in which the underlying offense was committed, or in any other Federal judicial district as provided by law.’’  Some critics of the PATRIOT Act assert that section 802 does not adequately define domestic terrorism and therefore section 803 is also vague since it punishes those harboring terrorists.  If ambiguity really does exist within this area of the Act,civil liberties may be compromised by section 803 because actions may fall arbitrarily under the punitive definition. See Patricia Mell, Big Brother at the Door: Balancing National Security with Privacy Under the USA PATRIOT Act, 80 Denv. U. L. Rev. 375 (2002) (concluding that section 803 is particularly troubling because it criminalizes harboring those that have committed terrorism but section 802 fails to adequately define domestic terrorism).

Section 1011 represents a similar shift in criminalizing behavior that might support terrorism.  The section entitled “Crimes Against Charitable Americans Act of 2001” broadens the definition of telemarketing to include telephone charitable solicitations, thereby directing the Federal Trade Commission (FTC) to regulate solicitation practice as proscribed by the Telemarketing and Consumer Fraud and Abuse Prevention Act, 15 U.S.C. ? 6101.  This is an additional step by which the government can monitor the behavior of individual’s because the FTC has broad access to the information disseminated through telemarketing. In Nat’l Fed’n of the Blind v. FTC, 303 F.Supp. 2d 707 (D. Md. 2004), a Maryland district court endorsed the PATRIOT Act’s authorization of FTC jurisdiction in regulation of charitable telemarketing organizations. It found that even though organizations themselves are exempt from FTC jurisdiction, this PATRIOT Act provision gives FTC jurisdiction to regulate solicitation practices of professional fundraisers hired by these nonprofits organizations. Furthermore, the case suggests that challenges to the constitutionality of such regulation based on First amendment or Equal protection claims will most likely fail.

Section 805 most reflects the shift toward criminalizing behavior at an earlier point on the timeline of a potential terrorist act.  The section expands the definition of the crime of giving of material support, and by defining that act in such a way as to sweep in a wide array of behavior.  Under federal law, it is illegal to provide material support to those engaged in terrorist activity (or who have previously committed such an activity), 18 U.S.C. ? 2339A (2005), or to groups designated as foreign terrorist organizations pursuant to section 219 of the Immigration and Nationality Act (18 U.S.C. ? 1189), 18 U.S.C. ? 2339B (2005).  Section 805 broadens the crime of providing material support or resources to a terrorist or terrorist organization to include provision of “monetary instruments” in addition to financial securities and “expert advice or assistance” in addition to the previous definition under 18 U.S.C. ? 2339A and 18 U.S.C. ? 2339B.  See Humanitarian Law Project v. Ashcroft, 309 F. Supp. 2d 1185 (C.D.C.A. 2004), vacated, 382 F.3d 1154 (9th Cir. 2004) (finding that “expert advice or assistance” as defined in section 805 is vague and therefore granting the plaintiffs summary judgment as to that aspect of their challenge to the section). This 9th Circuit ruling in Humanitarian ensured that challenges to this provision of the Patriot Act must proceed on a case by case basis as the Court declined to grant a nationwide injunction regarding its enforcement. Based on the outcome of Humanitarian, it is likely that a challenge would succeed if grounded in the impermissible vagueness of the wording “expert aid or assistance.” It is unlikely an argument that focuses on the over-breadth of the term or that challenges any other aspect of this particular provision will be successful based on Court dicta in this case. In United States v. Al-Arian, 280 F.Supp. 2d 1345 (M.D. Fla. 2003) (holding that two of the four defendants charged with providing material support to a foreign terrorist group could be detained before trial because these two posed a serious flee risk), the Florida district court found that reading in a mens rea requirement for the “material support” element mitigates vagueness. Then, “to convict a defendant under [this provision] the government must show beyond a reasonable doubt that the defendant knew that: a) the organization was an foreign terrorist organization or had committed unlawful activities that caused it to be so designated; and (b) what he was furnishing was ‘material support’.” Such an approach, the district court argued, would be more consistent with Congress’s intent, which was to prohibit material support from foreign terrorist organizations.   Finally, section 805 allows prosecution in the place the support is provided or in the place of the terrorist act.

A majority of the case law regarding prosecution for material support crimes revolves around the initial designation of groups as “foreign terrorist organizations”, defined under 18 U.S.C. ? 2339B.  (See the paragraph above for a full explanation of the laws against providing material support.)  The Secretary of State may deem a group a terrorist organization so long as the Secretary can provide substantial support for the designation.  See People’s Mojahedin Org. of Iran v. Dep’t of State, 182 F.3d 17 (D.D.C. 1999) (deciding that the validity of evidence was irrelevant when evaluating whether the Secretary of State properly labeled a group terrorist so long as the evidence was substantial), aff’d, 327 F.3d 1238 (D.D.C. 2003); see also Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.D.C. 2001).  Not all groups are entitled to due process before labeled as a terrorist organization, particularly foreign entities that have no presence or property within American borders. Compare 32 County Sovereignty Comm. v. Dep't of State, 292 F.3d. 797 (D.C.C. 2002) (finding that Irish dissident groups were not entitled to due process because they only had minimal financial contacts with the United States), with Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.D.C. 2001) (mandating due process prior to designation because one of the alias groups had presence in a government building and a bank account in the United States); see also United States v. Arnaout, 236 F. Supp. 2d (N.D. Ill. 2003) (acknowledging that material support to those labeled as terrorist organizations may be excused when the organizations are lawful combatants or soldiers).

Another change in the material support prohibitions is section 807 of the PATRIOT Act which allows export restrictions, even if they conflict with the Trade Sanctions Reform and Export Enhancement Act of 2000, so as to prevent material support to terrorists or terrorist organizations. 

Other cases have addressed the criminalization of knowingly providing material support to designated foreign terrorist organizations. Once an individual is charged with knowingly providing material support to a terrorist organization, the accused may be detained before the trial.  This is because courts have found provision of material support to terrorists a crime of violence.  See United States v. Lindh, 212 F. Supp. 2d 541, 580 (E.D. Va. 2002) (determining that material support for a terrorist organization constitutes a crime of violence); see also United States v. Goba, 240 F. Supp. 2d 242, 249-50 (W.D.N.Y. 2003) (reaffirming the “crime of violence” reasoning found in Lindh.)  The amount of material support given may be a factor used to determine whether pretrial detention is proper.  E.g., United States v. Al-Arian, 280 F.Supp. 2d 1345 (M.D. Fla. 2003) (deciding that only two of the four defendants could be detained before trial because those two defendants had leadership positions in assistance of a terrorist organization).  Furthermore, there have been several cases involving questionable treatment of those accused of providing material support.  See United States v. Paracha, 2004 U.S. Dist. LEXIS 16892 (S.D.N.Y. 2004) (determining that an individual’s oral statements were admissible even though defendant was interviewed for forty-eight hours by FBI officials).

PATRIOT Act Provisions

  • Creates a separate offense which punished harboring terrorists (it was already a federal crime to harbor aliens, or those engaged in espionage pursuant to other parts of the law) Predicate list of offenses include: destruction of aircraft or their facilities, 18 U.S.C. 32; biological weapons offenses, 18 U.S.C. 175; chemical weapons offenses, 18 U.S.C. 229; nuclear weapons offenses, 18 U.S.C. 831; bombing federal buildings, 18 U.S.C. 844(f); destruction of an energy facility, 18 U.S.C. 1366; violence committed against maritime navigational facilities, 18 U.S.C. 2280; offenses involving weapons of mass destruction, 18 U.S.C. 2232a; international terrorism, 18 U.S.C. 2332b; sabotage of a nuclear facility, 42 U.S.C. 2284; air piracy, 49 U.S.C. 46502. (803)
  • Permits prosecution either at the place the harboring occurred or where the underlying act of terrorism committed by the sheltered terrorist might be prosecuted. (803)
  • Broadens crime of providing material support or resources to a foreign terrorist organization to include provision of “expert advice or assistance” and clarifying that “material support” includes all forms of money, not just hard currency (805)
  • Instructs that the predicate list of 18 U.S.C. 2339A (support to terrorists) grows to include: chemical weapons offenses, 18 U.S.C. 229; terrorist attacks on mass transportation, 18 U.S.C. 1993; sabotage of a nuclear facility, 42 U.S.C. 2284; and sabotage of interstate pipelines, 49 U.S.C. 60123(b) (805)
  • Specifies that prosecution for violation of section 2339A (support of terrorists) may be brought where the support is provided of where the predicate act of terrorism occurs (805)
  • Clarifies that the trade sanctions bill, which limits the power of the President to unilaterally impose export restrictions on agricultural and medical products, should not be construed to limit or otherwise amend the prohibitions on providing material support to terrorist or terrorist organizations for the purposes of 18 U.S.C. 2339A or 2339B (807)
  • Broadens the definition of telemarketing to include charitable solicitations. (1011)
  • Adds “fraudulent charitable solicitations” as a deceptive practice thereby directing the FTC to regulate solicitation practice. It left alone the portion of the Telemarketing Act that specified that charitable organizations themselves were outside of the jurisdiction of the FTC rules. (1011)

Other Relevant Provisions

  • The legislation expands the definition of terrorist financing and broadens language in current law barring people from providing material support or resources for carrying out terrorist acts. It also expands the material support crimes to include aiding the concealment of or escape from an act of terrorism. The Department of Justice has heavily relied on the material support ban to go after suspected terrorists. The language clarifies that those suspected of providing material support (money as well as other assets) to a terrorist organization are assumed to have known the group's designation or that it engaged in terrorist activity. It requires the president to report to Congress on the status of efforts to block such financing. The material support provision expires at the end of 2006. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • Changes terrorism laws to target the so-called lone wolf terrorist or individual acting alone. It also allows the bureau to conduct surveillance and wiretaps on suspected terrorists in the United States who have no ties to any foreign country or terrorist group. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638 (2004).
  • The measure put in place stiffer penalties for computer hackers. Those who "knowingly or recklessly" committed a hacker crime that led to serious bodily injury may be sentenced to as much as 20 years in jail. If those activities killed anyone, the hacker may go to jail for life. The U.S. Sentencing Commission must review its guidelines for hacker crimes and consider making changes relating to crimes that affect government or commercial IT systems.Homeland Security Act of 2002 Pub. L. No. 107- 296, 116 Stat. 2135 (2002). 

Cases