Background: Material Support and the Need for NGO Access to Civilians in Need

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Date: 
July 7, 2010

Laws that prohibit "material support" to listed terrorist organizations only exempt religious materials and medicine. That means medical services or non-medicinal necessities such as clean water are prohibited, as are tents, blankets, food and more. In other words, it is legal to give someone a pill, but illegal to provide clean water for swallowing it. There is no justification for this ongoing blockade of humanitarian aid.  

The Problem

Laws that prohibit "material support" to listed terrorist organizations only exempt religious materials and medicine, even when some form of contact or coordination with the listed group is necessary to reach non-combatants in need. That means that in conflict zones or natural disaster areas where listed groups are active medical services or non-medicinal necessities such as clean water, tents, blankets, food and more can be prohibited.  

 

To make a bad situation worse, in June 2010 the Supreme Court upheld application of this ban to conflict mediation and peacebuilding activities aimed at turning terrorist groups away from violence.

 

The Solution
 

It doesn't have to be this way. U.S. charities, grantmakers and others are working for a sensible humanitarian exemption that would protect people in need, open the door to nonviolent resolution of conflicts, and protect national security.

Our proposal would change the policy to allow nonviolent conflict resolution services (such as peacebuilding programs and legal representation) and humanitarian aid and when such aid:

 

  • is conducted in accordance with long-accepted standards of charitable practice, such as the Code of Conduct for the International Red Cross Red Crescent Movement and NGOs in Disaster Relief and the Principles of International Charity[1]
  • is provided only to noncombatants in need, with priority to the most vulnerable, and
  • when contact, communications and logistical arrangements with a listed organization cannot reasonably be avoided

“Humanitarian aid” means any of the following types of aid, which are already protected under the Geneva Conventions:

  1. Care of the wounded and sick, including the provision of medical services and hospital stores,
  2. Supplies essential to survival, such as foodstuffs, water, clothing, shelter and sanitation services, including repair and restoration of infrastructure necessary for delivery
  3. Objects necessary for religious worship
  4. Facilitation of strictly personal communications between family members
  5. Goods and services for the maintenance and education of children under the age of 15
  6. Communications regarding security and logistics necessary to provide any of the materials described in this subsection.

 

Under our proposal no license would be required for an organization to provide humanitarian aid but any organization providing such aid would be required to notify the Attorney General and Secretary of State that it is doing so. 

Statutory Background
 

Two federal laws and Executive Order (EO) 13224 bar anyone, including charities and foundations, from engaging in transactions with terrorist organizations. This includes humanitarian aid, conflict resolution programs, and other nonviolent activities. Providing material support to designated terrorist organizations is prohibited by the Antiterrorism and Effective Death Penalty Act (AEDPA), which was enacted in 1996 and later amended by the USA PATRIOT Act in 2001 and 2004.[4] AEDPA authorizes the Secretary of State to designate "foreign terrorist organizations"[5] and makes it a crime for any person or organization to knowingly provide, attempt, or conspire to provide "material support or resources" to a designated entity, regardless of the character or intent of the support provided.[6]

 

AEDPA defines "material support or resources" as:

any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation ….[7]

Each term within the definition is then further defined within the statute. The only exceptions to "material support or resources" are for medical and religious materials, which may be given to a foreign terrorist organization in unlimited amounts.[8]

 

Under ADEPA, all support is presumed to further a designated organization’s terrorist operations, regardless of whether that support furthers its nonviolent operations. The Secretary of State and Attorney General may approve exceptions for aid in the form of "training," "personnel," and "expert advice or assistance" where the Secretary determines that the aid may not be used to carry out terrorist activity (exceptions are not permitted for humanitarian aid such as food, water, etc.).[9]



[1] i.e. https://www.icrc.org/eng/resources/documents/article/other/code-of-conduct-290296.htm

[2] https://www.icrc.org/eng/resources/documents/article/other/code-of-conduct-290296.htm

[3] Treasury Guidelines Working Group March 2005 online at http://www.icnl.org/research/resources/foreignfund/principles.pdf

[4] http://www.abanet.org/natsecurity/patriotdebates/material-support

[5] http://www.state.gov/s/ct/rls/fs/37191.htm

[6] Anti-Terrorism and Effective Death Penalty Act of 1996, 104 Public Law 13. See material support provision at 18 U.S.C. § 2339A(b)(1). 

[7] 18 U.S.C. 2339A(b)(1).

[8] Bill of Rights Defense Committee, "Constitutional Implications of Statutes Penalizing Material Support to Terrorist Organizations," Testimony of David Cole, U.S. Senate Committee on the Judiciary, May 5, 2004. Available at: http://www.bordc.org/resources/cole-materialsupport.php

[9] 18 U.S.C. 2339B(j).