Sahar Aziz has just published a blog on the American Constitution Society website that makes a clear and forceful argument about why U.S. laws prohibiting material support of terrorism should have an intent requirement. Aziz says the Supreme Court, currently considering the material support laws in the Humanitarian Law Project case, could avoid ruling on whether definitions of key terms in the law are too vague “by interpreting the challenged provisions to require a showing of intent to further illegal activities.”
She goes on to say, “In the 1960s, at the height of the Cold War, the Supreme Court held in Scales v. United States that laws criminalizing membership in the Communist Party must be interpreted to require a specific intent to further the group’s illegal aims. Mere knowledge that a group advocated violence was insufficient to justify infringing on cherished First Amendment associational rights. Consistent with that principle, in 2004 Congress amended the law prohibiting material support to terrorism to require that ‘[n]othing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.’”
Aziz’s approach would “rectify several unfortunate policy effects” of the way material support laws are currently interpreted. First, she notes “Existing law unduly criminalizes the fundamental American tradition of charity. As a result, many American charities have refrained from providing humanitarian aid in conflict zones where aid is most needed.” Second “criminalizing charity undermines the administration’s declared commitment to improving America’s image abroad through meaningful engagement.” Lastly, she argues that “requiring a showing of specific intent to support illegal acts prevents squandering limited prosecutorial resources on pro-peace charities such as the Humanitarian Law Project.”
This reinforces other calls for an intent requirement as a way to protect legitimate charitable work and free speech, including conflict resolution and peacebuilding programs. For example, at an event at the National Press Club on Feb. 17, Lisa Schirch of the 3D Security Initiative said “specify the intent in US law” and only criminalize activity if it is “increasing the likelihood of their armed violence or terrorist activity.”