The Overbroad and Imbalanced Approach to Prohibiting Material Support of Terrorism

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Date: 
February 13, 2014
Author: 
Nathaniel J Turner

The recent decision by the U.S. to remove certain “terrorism bars” on individuals seeking refugee status highlights the incredibly broad—and sometimes ridiculous—way that the government has defined support for terrorism. The Feb. 5 rule change from the Departments of State and Homeland security exempts those who have given “limited” material support to armed groups defined as “terrorists” under immigration statutes. While the change is a welcome one that many advocacy groups have been pushing for, it has significant limitations and showcases the government’s troubling conceptualization of material support of terrorism.

U.S. counterterrorism policy defines material support about as broadly as one could imagine. Any tangible or intangible transaction with designated terrorist groups is a crime. Under the law, paying a toll to access starving civilians or teaching international law is treated the same as selling arms or providing military training. This broad definition has impacted those trying to escape violent conflict, as well as humanitarians and peacebuilders.

For potential refugees, the problem with material support to terrorists has been particularly troubling because of how the U.S. defines terrorism under immigration law. The Immigration and Nationality Act (INA) prohibits refugees who have provided any kind of support to a designated terrorist group (such as Hamas or Al-Qaeda), but also to so-called “undesignated terrorists”—any two or more individuals who take up arms or engage in violence.  Even freedom fighters supported by the U.S. government are technically terrorist groups under the INA.

The exemption announced last week allows limited transactions with these “undesignated terrorists,” a move which has been widely applauded, particularly as more than 2.3 million have fled the Syrian civil war. But the exemption does not protect those who give the exact same kind of minimal and limited support to designated terrorist organizations. If the government does not consider limited material support to be problematic, why stop at undesignated groups?

The fact is this disparity is nothing new. The U.S. has long held that any benefit, no matter how tangential, and regardless of intent, to a terrorist group is too much. Humanitarian aid and peacebuilding groups have long felt this sting. Criminal law and economic sanctions law also prohibit material support to any designated terrorist, and have no exemption for aid or conflict mediation programs. During the famine in Somalia in 2011, aid groups had to pull out of areas controlled by a terrorist group, rather than pay small tolls to them to be able to enter areas with starving civilians.

No civil society group is advocating for the U.S. government to permit wholesale funding, arms trade or military training with terrorist groups. Reducing the flow of funds and equipment to terrorists is an important goal. However, it should not be done at the expense of civilians fleeing conflict or in need of life saving assistance. The current definition and application of material support of terrorism is so broad that it is stifling legitimate, vital work. It is beneficiaries—vulnerable refugees and starving people—who bear the brunt of this imbalance. 

Luckily, this imbalance has been recognized. The Feb. 5 exemption for refugees is hopefully the first step in further exemptions covering designated groups as well. Additionally, the bi-partisan Humanitarian Assistance Facilitation Act (HR 3526) pending in the House would permit some minimal transactions with terrorist groups when necessary for entering areas with needy civilians. These measures would make the prohibition of material support more targeted, balanced and focused on the real supporters of terrorism, not innocent bystanders.