At the Nov. 5, 2009 debate on Patriot Act reauthorizations, the House Judiciary Committee discussed an amendment proposed by Rep. Sheila Jackson-Lee (D-TX) that would have expanded the exemption to providing material support to terrorist organizations to include, “in the case of a natural disaster; food or water.” Although the amendment was withdrawn in favor of a request for a hearing on the issue, the committee’s discussion was a useful first step in identifying key issues to resolve in formulating an exemption that works. This summary is based on notes taken at the hearing, and ends with questions for humanitarian advocates to consider.

In a statement introducing her proposal, Jackson-Lee noted that nonprofits discussed a wider exemption that would include articles such as shelter, medical services, water sanitation facilities, education and conflict resolution programs. However, she said she narrowed her proposal in order to demonstrate the drastic impact of the current exemption, which is limited to medicine and religious materials. For example she said humanitarian workers face severe legal sanctions, including the possibility of being sent to prison, for providing aid essential to saving lives and reducing the factors that drive violent extremism.

Jackson-Lee noted that she traveled to Pakistan after the 2005 earthquake left many in dire need of immediate assistance, and observed how difficult it can be to get essential aid delivered. She rejected claims that humanitarian assistance is so fungible that it indirectly subsidizes purchase of weapons by terrorist organizations. Instead, she said nonprofits have due diligence procedures that ensure aid gets to its intended recipients. She also pointed out the public diplomacy problems created when U.S. laws result in aid being withheld.

Rep. Tammy Baldwin (D-WI) spoke in favor of the idea, noting she had prepared a similar amendment but would support the Jackson-Lee proposal. She noted problems with getting aid into disaster areas such as Sri Lanka after the 2004 tsunami and said the standard should be that aid is provided without distinction, and be based on need only.

Rep. Jerrold Nadler (D-NY) opposed the amendment, saying its effect “would be far from humanitarian.” He said the problem is not the definition of humanitarian aid, but the preceding section of 18 USC 2339A, the law Jackson-Lee’s proposal would amend.  It applies to material support given “knowing or intending that they are to be used in preparation for, or in carrying out” terrorism-related offenses. Nadler said “This is not, by any stretch of the imagination, a humanitarian purpose, even if the nature of the items have humanitarian uses.”

For example, Nadler said the Jackson-Lee proposal could allow donation of food to al Qaeda members fighting “for the express purpose of aiding them in the preparation or carrying out of terrorist acts, so long as it is in a natural disaster….There is no requirement that the food and water be used to aid actual victims of the disaster…”

Jackson-Lee disagreed, saying under Nadler’s interpretation the current exemption for medicine and religious materials could be given to further terrorist purposes. Rep. Lamar Smith (R-TX), then moved for a point of order, saying the amendment was outside the scope of the Patriot Act provisions under consideration and was not germane.

Jackson-Lee said she would withdraw her amendment and engage Chairman John Conyers (D-MI) on the idea of having a hearing on the issue. “We cannot ignore the problem,” she said. Rep. Debbie Wasserman-Schultz (D-FL) opposed the idea of a hearing, citing concerns about fungibility of goods. However, Baldwin and others supported it.  Conyers has not yet indicated whether he will hold such a hearing.

The issues discussed in the hearing raise important issues for discussion among nonprofits working to reform national security laws that negatively impact charities. It is likely these questions will have to be addressed in some way if a humanitarian exemption proposal is to succeed. For example:

  • Should a humanitarian exemption have requirements that the aid reach intended beneficiaries? If so, what should these requirements be?
  • What are the fact scenarios that would make it necessary or desirable to involve a listed terrorist group in aid delivery? For example, would a limitation for circumstances where there is no reasonable alternative in dire circumstances (natural disaster, famine, etc.) make sense? Is that too narrow?
  • If working with a listed terrorist group is the only way to get aid in where it is needed, what procedures can be put in place to prevent the aid from being diverted to support for terrorist fighters?
  • Could the exemption be written into another section of law, such as 18 USC 2339B, which does not have the provision regarding intent aid be used to further terrorism?