A July 19, 2010 report entitled Terrorist Material Support: An Overview of 18 USC 2339A and 2339B, by the Congressional Research Service offers a descriptive summary of the material support laws, the procedural history of the Holder v. Humanitarian Law Project case, and the process under which an organization is designated as terrorist by the U.S. Department of State. There is notably no discussion of the U.S. Department of Treasury’s authority to designate an organization or individual pursuant to Executive Order 13224 – an authority frequently invoked to designate organizations and entities. The footnotes cited in the report offer a valuable roadmap of cases involving charges of material support to terrorism, a subsection of which include unsuccessful constitutional challenges to the validity of 2339B.
While the report is primarily descriptive and offers little by way of analysis of the effects or flaws in these laws, it stresses two points that the Charity and Security Network seeks to address by way of reform. First, it starts by highlighting the 1995 House report recognizing the “fungibility of financial resources” theory espoused by the U.S. Department of Treasury and many opponents of legal reform. This theory asserts that the provision of any funds, goods, or services to an organization designated as terrorist, even if such provisions are spent on lawful humanitarian aid or advocacy for nonviolent conflict resolution, frees up the organization’s resources to be directed towards terrorist activities. Moreover, any direct or tangential benefit obtained from such provisions legitimizes the designated organization. The Charity and Security Network finds this “fungibility” argument highly flawed because it impedes a well intentioned charity’s ability to provide humanitarian aid in conflict zones where a designated organization is operating, yet the civilian population is in dire need of assistance by American nonprofits.
Second, the report notes that violations of 2339A and 2339B may constitute “acts of international terrorism.” As a consequence, defendants convicted of 2339A or 2339B may be subject to civil liability in lawsuits brought pursuant to private civil rights of action available under 18 USC 2333. In pending cases seeking civil liability, the evidentiary standard for proving causation has allowed for multiple degrees of separation between the designated group accused of engaging in terrorism abroad and the domestic organization accused of providing material support to the designated group. Successful plaintiffs can be awarded up to treble damages and attorney fees and costs. This outcome risks significant amounts of donor funds intended for lawful, humanitarian aid projects to be frozen and redirected to civil litigants alleging harm from acts of international terrorism.