The Prohibition on Material Support and Its Impacts on Nonprofits

The U.S. counterterrorism framework impedes the work of legitimate nonprofit organizations (NPOs) in two ways: first, it prohibits anyone from engaging in a wide range of broadly defined activities that involve listed terrorist organizations, regardless of the purpose or intent behind such engagement. Violating “material support” laws can result in criminal prosecution, extensive jail time and fines. Second, it allows the government to list U.S.

Material Support Definitions

Material support is defined somewhat differently in different contexts, making it difficult for nonprofit organizations to navigate the prohibition when working in areas controlled by or in proximity to listed terrorist groups. 

The primary definition is found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA): 

Holy Land Foundation Case Summary: Controversial “Material Support” of Terrorism Convictions

October 9, 2012

The Holy Land Foundation for Relief and Development (HLF), a Texas-based charity with a mission of providing humanitarian aid in Palestine, was the largest Muslim charity in the United States until its closure in December of 2001. HLF had been legally operating for over a decade before it was designated and shut down by the Bush administration three months after 9/11. Its former officials were convicted of providing material support for terrorism on retrial in November 2008, and received sentences ranging from 15 to 65 years. The case, the evidence, the procedure, and the convictions all highlight the precarious legal position of U.S. nonprofits trying to carry out humanitarian missions.

Summary: The Fifth Circuit’s Holy Land Foundation Decision

December 20, 2011
By Alan R. Kabat, Bernabei & Wachtel, PLLC
On December 7, 2011, the U.S. Court of Appeals for the Fifth Circuit issued its long-anticipated decision in the Holy Land Foundation prosecution.  United States v. El-Mezain, et al., No. 09-10560, 664 F.3d 467, 2011 WL 6058592 (5th Cir. Dec. 7, 2011). While this decision upheld the jury verdict and judgment against the defendants, the Fifth Circuit did address a number of issues of broader legal significance, and recognized the legitimacy of several arguments raised by the defendants as to the improper use of certain categories of evidence at trial.

IRS Rejects Complaint Against Doctors Without Borders for its Medical Work in Gaza

October 24, 2018

In late August 2018 the Zionist Advocacy Center (TZAC), which is spearheading legal tactics aimed at NPOs working in Palestine, announced via facebook that the Internal Revenue Service (IRS) rejected its effort to revoke the charitable, tax-exempt status of Doctors Without Borders’ (MSF - Medecins Sans Frontiers). The IRS does not publish its decisions in such cases, but TZAC’s complaint, minus the appendices, is available in a 2016 news story from War News Information Press. It argues that by working with the Ministry of Health in Gaza to provide hospital services MSF provided material support to Hamas, because the Ministry of Health is part of the Hamas-ruled local government in Gaza. A source at MSF said it had no information about the complaint. 

If it Ain’t Broke …..

August 14, 2017
Andrea Hall

As the old saying goes, if it ain’t broke, don’t fix it.

The spokesman for the “let’s-shut-down-U.S.-charities-because-they’re-conduits-for-terror-finance” school of thought has been pushing this outdated and discredited narrative in Washington, D.C. over the past year or more. He seems to believe that the Obama administration’s enforcement policy was negligent in its duty to “bust terrorist charities” (his words, not ours), that U.S. nonprofits have been given a free pass over the past eight years, and the result has got to be more terror financing. He is urging lawmakers and the new administration to take us back to the time when he served as a terrorism finance analyst at U.S. Treasury during the George W. Bush administration, and his research seems to reflect those outdated strategies. Since a Hill hearing was held in May 2016, this spokesman has been active in the blogosphere. He has convinced Rep. Ted Poe (R-TX) to introduce a bill that, if passed, would create more problems than it would solve.

Index Gauges Quality of Humanitarian Assistance of Relief and Recovery Efforts

June 15, 2011

The Humanitarian Response Index (HRI) aims to improve the quality and effectiveness of humanitarian aid for at-risk populations by identifying and promoting best practices for donor governments and civil society. Produced by DARA, the latest HRI says anti-terrorism measures like the “material support” prohibition make it extremely difficult for aid agencies to meet the needs of at-risk civilians.