AMENDING AMERICAN NATIONAL SECURITY LAW TO EMPOWER CONSTRUCTIVE MATERIAL SUPPORT: A Critical...

8/16/2019 AMENDING AMERICAN NATIONAL SECURITY LAW TO EMPOWER CONSTRUCTIVE MATERIAL SUPPORT: A Critical Exa…

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AMENDING AMERICAN NATIONAL SECURITY LAW TO EMPOWER CONSTRUCTIVE

MATERIAL SUPPORT:

A Critical Examination of Matrial S!""ort Un#r $% U&S&C& '())*A

+ '())*,

William J. Diedrich

The brutal quagmires that arose from American military

interventions in Iraq and Afghanistan have heralded a shift in

the strategic approach of the United States to undermining the

threat of terrorism. The American polity has grown weary of

expending American blood and treasure in manic wars where the

only constant identifiable objective has been eradicating

terrorism through attrition and unilateral state building. As a

result the political situation has rendered the deployment of

new !boots on the ground" essentially untenable barring a

significant new crisis and has mandated a re#conception of how

the United States can effectively achieve its anti#terrorism and

national security objectives.

This reformation has brought about what $ew %or& Times

columnist 'oger (ohen has termed !)bama*s +octrine of

'estraint.", The -resident*s perceived !need to redefine

, 'oger (ohen Obama’s Doctrine of Restraint The $ew %or& Times /)ctober ,001,23 available at http://www.nytimes.com/20!/0/"/opinion/obamas#doctrine#of#restraint.html http44www.nytimes.com401,24,14,54opinion4obamas#doctrine#of#restraint.html67r81

,


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America*s foreign policy heft in an interconnected world of more

equal powers" along with the -resident having become

!temperamentally inclined to prudence and diplomacy over force"

has cataly9ed a paradigmatic shift away from the strategic

disposition that had directed United States anti#terrorism policy

since :4,,.0

This sober#minded pragmatism abandons the attitude of

indomitability and propensity for unilateral government action

that led the United States to believe that a swift and furious

demonstration of military strength and moxie would cow the

terrorist threat. +espite this maturation of outloo& if the law

is not reconceived in significant ways to support and empower

this new style of approach then the United States may render

itself conflicted impotent ineffectual and continuingly less

capable of executing the role of supreme international leader a

position from which the United States has largely directed

national and global security policy for seventy years.

The terrorist enemy is not generally fueled by a traditional

political and economic engine rather by rogue financier states

and magnates in a context of deeply ingrained sociopolitical

issues that have spanned centuries and ripened in the wa&e of the

wars in Iraq and Afghanistan and the Arab Spring because of the

erosion of the state structures that maintained often oppressive

0 $d . at ;2.

0


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order in those regions during the latter half of the 01th

(entury. As nuance has been imposed on our understanding of the

terrorist threat it is essential that the laws directing our

fight against terrorism comport with the wisdom of the

-resident*s new policy approach and shed their blac& and white

appreciation of the national security threats posed by terrorism.

(hief among the laws outmoded by the new reality are ,<

U.S.(. =055:A and ,< U.S.(. =055:>5 which ma&e a federal offense

of providing the ,< U.S.(. =055:A/b3 definitions of material

support to any organi9ation engaged in terrorism terrorist

activity or any organi9ation designated as a foreign terrorist

organi9ation /?T)3 by the Secretary of State under the authority

of < U.S.(. =,, will be jointly referenced as the!%aterial &'pport &tat'tes" for the sa&e of clarity and concision when beingdiscussed jointly.

@ ,< U.S.(. =055:A /011:3C ,< U.S.(. =055:> /01,23C < U.S.(. =,,


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Support Statutes serve to narrow and disempower protections of

both the ?irst and ?ifth Amendments.

This paper will exegetically engage the Baterial Support

Statutes as well as legal attac&s on the constitutionality and

wisdom of the statutes through the caselaw and relevant

scholarship while emphasi9ing how these issues should serve as

an impetus for change in the law and what that change ought to

be. ?undamentally this paper will argue that reconfiguration of

the law of material support is essential to supporting the

foreign policy approach of the -resident of the United States and

effectively eroding the terrorist threat to American national

security while supporting the development of lawful society in

those places most directly impacted by the epidemic of sectarian

conflict that sustains and foments terrorismC additionally this

paper will engage the excessive threat to (onstitutional rights

in the United States posed by the vague and constitutionally

corrosive definitions of material support under ,< U.S.(.

=055:A.2

T-E LEGISLATIVE -ISTORY O. T-E MATERIAL SUPPORT STATUTES AND T-E

CURRENT STATE O. T-E LAW:

Dvolution of the Baterial Support Statutes

2 ,< U.S.(. =055:>C ,< U.S.(. =055:A.

@


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The metamorphosis of the Baterial Support Statutes from

obscure prosecutorial tools to a chief mechanism for federal

authorities attempting to deal with the problem of !the

fungibility of financial resources and other types of material

support" that fuel terrorism occurred in a series of significant

statutory amendments.E At its inception ,< U.S.(. =055:A was

not a source of much legal contention or debate as it passed

within the (iolent )rime )ontrol and *aw +nforcement ,ct of --

/F((GDA3 without any scrutiny in the supporting House (ommittee

report on the bill. The F((GDA made a federal offense of

providing !material support or resources" in furtherance of

terrorism or terrorist activities under an explicit statutory

definition that was limited to an enumeration of tangible goods

money and financial services purposed with supporting a federal

crime of terrorism.<

The Baterial Support Statutes began to grow teeth with the

passage of the ,ntiterrorism and +ffective Death enalty ,ct of

-- /AD+-A3 which grafted ,< U.S.(. =055:> onto its parent

statute.: The concern articulated by the House (ommittee report

E (harles +oyle 1errorist %aterial &'pport: ,n Overview of 3.&.). 2""-,and 2""-4 /01,13 at ,.

Fiolent (rime (ontrol and Gaw Dnforcement Act of ,::@C 1errorist %aterial&'pport: ,n Overview of 3.&.). 2""-, and 2""-4 at ,C ,::@ U.S.(.(.A.$. ,


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on AD+-A was that !JaKllowing an individual to supply funds

goods or services to an organi9ation or to any of its

subgroups that draw significant funding from the main

organi9ation*s treasury helps defray the costs to the terrorist

organi9ation of running the ostensibly legitimate activitiesC"

wherefore providing any material support as defined in =055:A/b3

/,3 to a designated ?T) regardless of whether that material

support applied directly to crimes of terrorism or terrorist

activity was necessary to undermine the financing of terrorism.,1

The Baterial Support Statutes were further empowered under

the government*s vivified anti#terrorism mandate in the wa&e of

:4,, with the 011, passage of the Uniting and Strengthening

America by -roviding Appropriate Tools 'equired to Intercept and

)bstruct Terrorism Act /USA -AT'I)T Act3.,, The USA -AT'I)T Act

amended both =055:A and =055:> by extending the maximum term of

imprisonment from ,1 to ,2 years thus elevating the severity of

a =055:A violation to match the consequences of a =055:>

violation.,0 The USA -AT'I)T Act also added a new life

imprisonment penalty when the acts of the materially supported

?T) terrorism or terrorist activities resulted in death.,5

,1 1errorist %aterial &'pport: ,n Overview of 3.&.). 2""-, and 2""-4.,, 3nitin6 and &tren6thenin6 ,merica by rovidin6 ,ppropriate 1ools Re7'iredto $ntercept and Obstr'ct 1errorism -ub.G ,1#2E /011,3C 1errorist %aterial&'pport: ,n Overview of 3.&.). 2""-, and 2""-4 at ,.

,0 3&, ,1R$O1 ,)1.,5 3&, ,1R$O1 ,)1.

E


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A final amendment of the Baterial Support Statutes occurred

with the $ntelli6ence Reform and 1errorism revention ,ct of

200 /I'T-A35 which enacted a redefinition of material support

under =055:A/b3/,3.,@ The new definition of material support

became !any property tangible or intangible or service" and

included a definition of !training" which had previously been

understood as the sort of criminal behavior essential to aiding

and abetting terrorism under ,< U.S.(. =0 to mean !instruction

or teaching designed to impart a specific s&ill as opposed to

general &nowledge.",2

The final modifications under the I'T-A were the addition of

!expert advice or assistance" defined as !advice or assistance

derived from scientific technical or other speciali9ed

&nowledge" as a form of material support and the explicit

definition of !personnel" as !, or more individuals who may be or

include oneself.",E Baterial support continued to exclude from

its scope the provisioning of !medicine or religious

materials.", The I'T-A also extended the maximum prison term

under =055:> to 01 years.,


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support and heralded a new era of prevalence and potency for the

Baterial Support Statutes in the national security jurisprudence

of the United States.

(urrent State of the Gaw

As of this writing =055:A and =055:> ta&en comprehensively

proscribe attempting to conspiring to or actually aiding and

abetting the preparation or carrying out of material support for

an ?T) or a violation of a federal crime of terrorism through

&nowingly providing material support as defined in =055:A/b3/,3

/b3/03 and /b3/53C or concealing such material support.,:

!Under both statutes !attempt" is defined under =055:A/a3 and

requires both intent to violate the statute and !some

substantial step towards its completion" meaning that absent an

intervening variable the attempt would li&ely succeed.01

?urthermore the fact of impossibility of completion due to the

representative of the ?T) or the orchestrator of the terrorism or

terrorist activity being an undercover agent or some showing of

inability by the ?T) or the orchestrator of the terrorism or

terrorist activity to accomplish objectives illegal under the

Baterial Support Statutes will not ameliorate the liability.0,

,: ,< U.S.(. =055:A/a3C ,< U.S.(. =055: /b3/,3#/53.01 ,< U.S.(. =055:A/a3C 1errorist %aterial &'pport: ,n Overview of 3.&.).2""-, and 2""-4 at EC 3nited &tates v. %orris 2@: ?.5d 2@< /th (ir. 011


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Boreover a violation under a theory of conspiracy requires

only a showing of agreement to afford material support and

extends liability to all foreseeable offenses committed by co#

conspirators !in furtherance of the overall scheme."00 >oth

attempt and conspiracy convictions mandate the same consequences

as a completed offense that being a maximum of ,2 years

incarceration under =055:A or 01 years under =055:> or life

imprisonment if the offense caused deathC however conspiracy

charges under the Baterial Support Statutes do not preclude

charges for the substantive offense from being additionally

leveed.05 (ontinuingly !JaKny financial institution that

&nowingly fails to comply with 3.&.). 82""- subsection /a3/03

shall be subject to a civil penalty in an amount that is the

greater of" L21111C or !twice the amount of which the financial

institution was required under subsection /a3/03 to retain

possession or control" after discovering its ?T) terrorism or

terrorist activity funding purpose.0@

In addition to the grounds for liability under =055:A and

=055:> attempt and conspiracy theories ,< U.S.(. =0 provides

that when the substantive offense is accomplished an individual

or corporation who counseled procured for or aided and abetted

a federal crime including a violation of the Baterial Support

00 $d . at EC ,< U.S.(. =055:A/a3.05 ,< U.S.(. =055:>/a3/,3C ,< U.S.(. =055:A/a3C 3nited &tates v. )handia 2,@?.5d 5E2 /@th (ir. 011/b3 J$talics mineKC =055:>/A3C =055:>/>3.

:


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Statutes is liable to the same extent as the direct perpetrator

of the offense.02 Giability under aiding and abetting theories

requires !that a defendant in some sort associate himself with

the venture that he participate in it as in something that he

wishes to bring about" and !that he see& by his action to ma&e

it succeed."0E The :th (ircuit clarified in United States v.

'ivera#'elle that the defendant could not be double charged with

attempt and completion though both bear the same independent

penalty.0

Baterial Support as it Stands Today

!Baterial support or resources" is defined by =055:A/b3 as

including any !any property tangible or intangible or service"

this umbrella includes (urrency or monetary instruments or

financial securities financial services lodging training

expert advice or assistance safehouses false documentation or

identification communications equipment facilities weapons

lethal substances explosives personnelM and transportation

except medicine or religious materials."0


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involving this definition have been on the terms !training"0:

!expert advice or assistance"51 and !personnel5,."

T-E MATERIAL SUPPORT STATUTES IN ACTION:

The Baterial Support Statutes have proven highly litigious.

(hallenges to their constitutionality on grounds of violating

constitutional rights to free speech and association as well as

challenges on the grounds of unconstitutional vagueness were

frequent and led to the governing decision in ;older v.

;'manitarian *aw ro


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The Humanitarian Gaw -roject /HG-3 is a non#profit corporation

!dedicated to protecting human rights and promoting the peaceful

resolution of conflict by using established international human

rights laws and humanitarian law."55 The HG- has garnered

!consultative status at the United $ations with a mandate to see&

compliance with armed conflict laws."5@ ?rom the years ,::


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held that the classification of the HG-*s proposed constructive

material support of the -NN and the Giberation Tigers of Tamil

Delam /GTTD3 was illegal under =055:A and constitutionally

problematic on grounds of vagueness the HG-*s ?irst Amendment

pleas were resoundingly rejected.5

The HG-*s proffered theory that the =055:A imposed a guilt

by association law contrary to associational protections under

the ?irst Amendment as applied in 9,,) v. )laiborne ;ardware was

rejected because that case held that punishing !by reason of

association alone" was unconstitutional but =055:A did not

proscribe membership or sharing the views of an ?T) rather

=055:A proscribed affording material support to such

organi9ations that were engaged in terrorism or terrorist

activities and was held constitutional under an intermediate

scrutiny analysis.5


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to further . . . illegal aims" required under ,nti#

Discrimination )ommission v. Reno did not apply because while

!JaKdvocacy is always protected under the ?irst Amendment . . .

ma&ing donations is protected only in certain contexts."@1

Attempting to employ the jurisprudence of campaign contributions

to achieve the heightened level of !exacting scrutiny" by

analogi9ing the case at bar to 4'c=ley v. (aleo which applied

exacting scrutiny to restrictions on monetary campaign

contributions on a ?irst Amendment theory also failed as a

challenge to =055:A because the equation of monetary support

equaling political speech was distinguishably appropriate under

4'c=ley because that case involved contributions to

!organi9ations whose overwhelming function was political

expression."@,

?inally the (ourt responded to the HG-*s argument that !the

statute violates their ?irst and ?ifth Amendment rights by giving

the Secretary of &tate Qunfettered discretion* to limit their

right to associate with certain foreign organi9ations and by

insulating her decisions from judicial review."@0 This challenge

was overcome by the (ourt*s rationale that precedent had barred

similar insulated regulations of speech on grounds of

unconstitutionality only when the regulation was of !speech or

@1 $d . at ,,55C citin6 ,merican#,rab#,nti#Discrimination )ommission v. Reno1 ?.5d ,1@2 /:th (ir. ,:


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association per seJK" and that =055:A*s prohibition of

materially supporting terrorism or terrorist activities

constituted mere !expressive conduct" which may be regulated !to

a greater degree than pure speech or association."@5 Boreover

the :th (ircuit asserted that the Secretary of State*s authority

under < U.S.(. =,,


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(onversely the (ourt held the terms !training" and

!personnel" unconstitutionally vague under the ?ifth Amendment

because the latter term could encompass an individual engaged in

mere speech advocacy as the government could argue that by

advocating politically for an ?T) an individual might free up

!personnel" to engage in terrorism thus unconstitutionally

rendering protected political speech illegal.@


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ad arguendo would be a plainly protected form of speech because

!training" was defined as the impartation of !a specific s&ill

as opposed to general &nowledge."2, It is a blatant

contradiction of the opinion of the :th (ircuit that the I'T-A

proscribes precisely the sort of !training" that the court

imagined to obviously be protected.20

-rior to the statutory definitions under the I'T-A being

legislated the HG- appealed the case to S()TUS against the new

Attorney Oeneral in the case of ;'manitarian *aw ro


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presenting their findings which are supportive of the -NN and

the struggle for Nurdish liberationJK" and that these reports

had illuminated !the summary execution of more than ,


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the Secretary of State under < U.S.(. =,,


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assistance" was sufficiently overbroad as to demonstrate !that a

law punishes a Qsubstantial* amount of protected free speech

judged in relation to the statute*s plainly legitimate sweep"

which would !invalidate all enforcement of that law" pending

legislative response to the overbroad language.E0 The (ourt held

that their more limited injunction was sufficient and that a

nationwide injunction would be excessive given !that Qthere comes

a point at which the chilling effect of an overbroad law

significant though it may be cannot justify prohibiting all

enforcement of that law#particularly a law that reflects

legitimate state interests in maintaining comprehensive controls

over harmful constitutionally unprotected conduct.*"E5

In what was essentially a reengagement of the central issues

in ;'manitarian *aw ro


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legitimating points such as serious United $ations engagement

with the HG- about the -NN and Nurdish crisis the brutality and

magnitude of the violence being targeted by HG- relief efforts

as well as the HG-*s peaceable engagement of the United States

(ongress on behalf of Nurds and the -NN.E2 This dicta and

reasoning all spea&s to a fundamental concern of the (ourt that

proscribing such engagement would be at best unwise and at worst

suspect under the (onstitution.EE Boreover with the passage of

the I'T-A (ongress effectively disregarded these concerns as to

!expert advice or assistance" just as that act disregarded the

:th (ircuit*s concerns surrounding !personnel" and !training."E

Holder v. Humanitarian Gaw -roject /01,13

hen the 011 :th (ircuit decision in ;'manitarian *aw ro


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the HG- or any political advocate or humanitarian organi9ation

to engage ?T)s through the sort of constructive democratic and

humanitarian activities that had been protected by a decade of

hard won injunctions against the government from the :th (ircuit

and the +istrict (ourts.E:

The :th (ircuit in ;'manitarian *aw ro


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nonetheless the court did not employ strict scrutiny and did

not ta&e issue with their finding that the proffered governmental

interest in the case was barring !training on the use of

international law or advice on petitioning the United $ations."5

This point of concession is what most fuelled the dissent and

will serve as a pertinent building bloc& for challenges to the

constitutionality and wisdom of material support jurisprudence.

The &ey holding however which departed from the HG- line

of cases was that the Baterial Support Statutes are not

unconstitutionally vague as applied to HG-.@ The (ourt relied

on a logic that !Qtraining* Qexpert advice or assistance*

Qservice* and Qpersonnel* are quite different from the sorts

of terms li&e !Qannoying*" and !Qindecent*" that the (ourt has

struc& down for requiring Qwholly subjective judgments without

statutory definitions narrowing context or settled legal

meanings."2 The (ourt supported this by observing !(ongress has

increased the clarity of =055:>*s terms by adding narrowing

definitions."E

(hief Pustice 'oberts stated the :th (ircuit had improperly

!merged plaintiffs* vagueness challenge with their ?irst

Amendment claims holding that portions of the material#support

statute were unconstitutionally vague because they applied to

5 $d . at 00@.@ $d . at 01:.2 $d . at 01:C quoting 3nited &tates v. Williams ,0< S.(t. ,


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protected speech regardless of whether those applications were

clear." In fact the :th (ircuit had concluded vagueness because

the statute could have reasonably been construed as barring

speech and advocacy that would be protected under the ?irst

Amendment and that therefore the statute was not sufficiently

clear because it was reasonably understood to illegali9e

behaviors that it did not have the constitutional authority to

proscribe.lipside before wea&ening the

vigorous tone of respect for free speech and associational rights

commanded by that case by pointing to 3nited &tates v. Williams

an exceptional case that dealt with the constitutionality of

proscribing child pornography a wholly dissimilar form of speech

from constructive material support designed to pacify and

democrati9e terrorist organi9ations a decision that

$d . at 0,:.


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inappropriately affected the tone of the (ourt*s analysis in this

case.:

Having integrated the Williams standard and dismantled the :th

(ircuit*s reasoning on vagueness the (ourt then made mincemeat

of the plaintiff*s arguments by citing heavily to the definition

sections of =055:>/a3/,3 /g3/@3C as well as =055:A/b3/,3 /b3

/03 and /b3/53 to show that the proscriptions were not against

!Individuals who act entirely independently of the foreign

terrorist organi9ationJK" and that !context confirms . . .

ordinary meaningJK" which any reasonable person could

comprehend.


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the support is completely independent.


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scrutini9e the statute and justifications Qstrictly* to

determine whether the prohibition is justified by a Qcompelling*

need that cannot be Qless restrictively accommodated.*"


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not propose to solicit a crimeJK" and the supposed lin&age

between HG- support and the bolstering of terrorist activities

is a wea& if not utterly groundless indictment.:1

The wea&ness of the supposed lin& between HG-*s proposed support

and terrorism based solely on a state of coordination is evident

on the issue of legitimating ?T)s. The majority argues that

HG-*s proposed support would legitimi9e the -NNC however the

majority would permit membership in the ?T) peaceful interaction

with the -NN and !independent advocacy" all of which could

!legitimi9e" the -NN which renders the argument unconvincing as

a categorical bar to coordination.:, ?urthermore the majority*s

opinion that HG-*s support could lead to the -NN availing itself

of legal recourse and gaining monetary damages that could be used

to further terrorist activities misconstrues the objective of the

legal recourse that the HG- wishes to train the -NN to pursue

which would see& !recognition under the Oeneva (onventions" not

money.:0

Bost challenging to the majority is that the material support

proposed by the HG- is not fungible and therefore not the sort

of support against which the Baterial Support Statutes were

:1 $d . at 055C 7'otin6 4randenb'r6 v. Ohio 5:2 U.S. @@@ @@ /,:E:3C alsosee &cales v. 3nited &tates 5E U.S. 015 00: /,:E,3 /association with agroup criminal group does not necessarily forsa&e their ?irst Amendmentassociational rights3.

:, $d . at 05E.:0 $d . at 05:.

0


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originally purposed.:5 The legal recourse that HG- wishes to

train the -NN in is not the sort that garners monetary

settlements.:@ Advocacy in the U.S. (ongress to more

constructively engage the -NN will not afford the -NN resources

that could be appropriated to perpetrating terrorism unless the

United States (ongress elected to furnish precisely the sort of

material support that the statutes rightly prohibit such as

money and weapons.:2

?inally the dissent observes that despite the majority*s

purported reliance on !(ongress* informed judgment" !there is no

evidence that (ongress has made such a judgment regarding the

specific activities at issue in these cases.":E There are simply

not (ongressional findings that the proposed material support

that HG- wishes to offer the -NN would aid or abet or in any way

contribute to terrorism. $o such finding was required of the

Secretary of State in the classification of the -NN as an ?T)

nor did the (ourt ma&e an evidenced finding. The (ourt*s

disposition in ;older is a construct of the majority*s

speculation.:

The dissent concluded its argument by pointing to the Baterial

Support Statutes themselves =055:>/i3 states that !JnKothing in

:5 $d .:@ $d .:2 $d .:E $d . at 05:.: $d .

0:


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this section shall be construed or applied so as to abridge the

exercise of rights guaranteed under the ?irst Amendment to the

(onstitution of the United States.":


31/36

suffocated by war has little consequence without the training

and equipment for serious action that American doctors and $O)s

could provide.,11

Similarly limited is the exception of !religious materials"

because the proscription of !safehouses" and !personnel" could

easily prove prohibitive of providing the services so often

essential to worship. If a religiously motivated ?T) member were

incited to further terrorism or terrorist activities due to the

resonance with his rationale for terrorism of a sermon that

preached the supreme truth of his religion then that preacher

may well qualify as !personnel" or as providing !expert advice

or assistance" for engaging in an essentially ubiquitous

religious practice.,1, ?urthermore the (hief Pustice*s concerns

over !legitimation" in ;older would also be relevant.,10

(ompounding the impenetrable nature of the Baterial Support

Statutes is the terrorism crisis* ripeness for being positively

affected by constructive material support. Terrorist

organi9ations are overwhelmingly populated by individuals

deprived of recourse through the establishment who have been

steeped in brutality to the point of utter saturation not simply

dysfunctional or ill human beings predisposed to it. To shun the

capacity of many individuals and organi9ations in the United

,11 ,< U.S.(. =055:A/b3/,3.,1, ,< U.S.(. =055:A/b3/,3 /b3/53.,10 ;older v. ;'manitarian *aw ro


32/36

States to empower such individuals and their organi9ations with

peaceful democratic s&ills sufficient to mount effective

recourse is to forsa&e an opportunity to cultivate a sense of

more enlightened fulfillment in these individuals and push them

away from violence and nurture human empathy. uite simply it

is a missed opportunity for the United States to lead by the very

best example that we might set a wise democratic and

compassionate one.

Amendment of the Baterial Support Statutes to allow for

material support of ?T)s can significantly undermine terrorism

when !there appears to be popular legitimacy to the goals

although not the methods of the designated ?T)" which creates a

very difficult setting for those see&ing to erode terrorism.,15

The author*s given example of this principle is that while

opposition to the methodology of the I'A was prevalent support

for the political objectives of the organi9ation also wasC

therefore it is in the interests of counterterrorist agendas to

provide such ?T)s with !alternative non#violent avenues to pursue

their goals" because the political circumstances will often

nourish the ?T) with support and membership if governmental

opposition to it simply closes doors.,1@ It is much easier to

affect an ?T) than an entire supportive population. The history

of the I'A feeds another observation because that organi9ation

,15 , p.0


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and its ideological progenitors thrived for over a century

largely because of the vicious repression of ?enian politics

wor&ing a formula of cause and effect very similar to that

currently exasperating tension between the -NN and Tur&ey. This

problem could be greatly ameliorated if the international legal

community were to be effectively engaged by certain ?T)s li&e the

-NN because it would incentivi9e both ?T)s and states to engage

in more civil means of politic&ing.,12

Amending the Statute

The decision in ;older v. ;'manitarian *aw ro


34/36

the statute" is wise.,1 ?or these reasons an arthroscopic

approach to amending the Baterial Support Statutes would li&ely

prove the most expedient and effective approach to addressing the

concerns of this paper.

?or these reasons the proposal of this paper is to

significantly vivify =055:>/j3.,1/j3.,,1 ,< U.S.(. =055:>/j3.,,, $mmi6ration and 9ationality ,ct < U.S.(. ,,3/iii3 /01,23.,,0 ,< U.S.(. =055:>/j3.

5@


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the denial of petitioners see&ing to provide !personnel"

!training" or !expert advice or assistance" when such material

support constitutes protected expression or speech under the

?irst Amendment unless the Secretary of State can meet a standard

of strict scrutiny.,,5 These two simple steps will allow the

swift and direct application of the Baterial Support Statutes

when they are in fact the appropriate tool while lessening the

counterintuitive impediments to constructive material support

affected by the law as well as the chilling effect that the law

has on $O)s who might otherwise serve a highly valuable role in

defeating the scourge of terrorism.

CONCLUSION:

>roadening of the Baterial Support Statutes self#restrictions and

exceptions is the ideal means of securing a state of harmony

between the closing off of destructive material support to ?T)s

terrorism and terrorist activities and ?irst Amendment rights.

The proposed amendment will further empower constructive material

support that could wor& to affect an amelioration of the social

ills afflicting those places where terrorism is thriving

undermine the violent practices of terrorists and engage such

individuals in a constructive and peaceful process of resolving

conflict. These developments would demonstrate a new form of

,,5 ,< U.S.(. =055:A/b3/,3 /b3/03 /b3/53.

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leadership internationally and provide a powerful new tool for

dealing with the national security threats of terrorism while

also unburdening the Baterial Support Statutes of impedimentary

and highly litigious infringements on the rights of American

citi9ens and allowing for their smooth operation when

appropriate.

AMENDING AMERICAN NATIONAL SECURITY LAW TO EMPOWER CONSTRUCTIVE MATERIAL SUPPORT: A Critical...

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