The Laws on Providing Material Support to Terrorist Organizations: The Erosion of Constitutional Rights or a Legitimate Tool for Combating Terrorism?

On December 4, 2001, federal agents raided the offices of the Holy Land Foundation for Relief and Development, arrested the organization’s officers, and froze $5 million worth of assets. Ten days later on December 14, 2001, the Global Relief Fund suffered the same fate when its assets were seized, and its co-founder Rabih Haddad was arrested. That same day Benevolence International’s assets were also frozen, and its U.S. citizen president, Enaam Arnaout, was arrested and taken into custody on charges of providing material support to terrorism. Prior to their effective closure, the three organizations were the largest Islamic charities in the United States. Although each charitable organization had been operating for more than a decade, all three were systematically raided and shut down soon after the federal government’s post-9/11 official declaration of its war on terrorism - a war that includes prosecuting anyone who provides material support to designated terrorist organizations. By February 2003, the Department of Justice proudly announced its completion of 70 similar investigations into terrorism financing, designating 36 entities as terrorist organizations, and freezing over $113 million in financial assets of 62 organizations allegedly supporting terrorism. The fact that almost every criminal terrorism case filed after the September 11, 2001 terrorist attacks has included a charge of providing material support to a terrorist organization reveals the significance of material support laws as the linchpin of the ongoing war on terrorism.To many unsuspecting Americans, these events represent success stories on the part of the United States government with respect to the legitimate goal of terrorism prevention. To others, they raise red flags concerning fundamental constitutional rights. Although critics of anti-terrorism laws generally accept the objective of terrorism prevention, the means currently utilized by the federal government in pursuing these legitimate ends are highly questionable from a legal as well as a normative perspective. For example, are these laws imposing guilt by association on individuals that support legitimate humanitarian aid projects? Do these laws provide adequate opportunity for defendants to face their accusers, the United States government in this case, and provide evidence in defense of their proclaimed innocence? Are these laws being used as a smoke screen to persecute politically unpopular individuals and groups affiliated with Islam and/or the Middle East rather than to eliminate bona fide criminal activity?This Paper attempts to answer these questions by illustrating how the current laws on designating foreign terrorist organizations and providing material support to terrorist organizations may violate organizations’ and individuals’ constitutional Due Process and First Amendment rights. Two specific fact patterns are the focus of this Paper with respect to the constitutional analysis.First, individuals in the United States who have knowingly donated large sums of money to the three Islamic charities previously mentioned are finding themselves under investigation for providing material support to terrorist organization. These investigations are taking place despite the individuals’ original intent for their money to be spent on humanitarian projects in the Middle East or Central Asia. These donors not only lacked any specific intent to support terrorism, but they may have considered their donations to be a form of political expression and association. The donations, for instance, may have represented their belief in the rights of the children in war-torn areas, such as the West Bank and Gaza, to receive food, shelter, and clothing despite the prevalent acts of violence committed against their communities as well as by members of their communities. In the context of pre-war, Saddam-run Iraq, U.S. donors may have donated their money to Global Relief Fund to sponsor an Iraqi orphan as a form of political protest against the United States’ sanctions on Iraq and against Saddam’s starvation of his people through the misallocation of state funds.The second fact pattern is similar to the first, but relates to the charitable activities of U.S.-based philanthropic organizations. These Islamic charities openly advertised their participation in humanitarian projects in the Middle East and Central Asia through their monetary donations to orphanages, medical clinics, hospitals and schools. Due to the reality of the situation in these war-torn, impoverished areas, some of the orphanages, clinics, and schools may receive money from a variety of sources, including from multi-purpose organizations, such as Hamas (also known as the Islamic Resistance Movement), in order to stay open. Although these civil institutions are not affiliated with the military branches of the local multi-purpose organizations, the U.S. government is treating them as linked with terrorism for purposes of laws on providing material support to terrorism. Therefore, if an orphanage, school, hospital, or medical clinic receives even $1 from the non-militant, social welfare branch of a local multi-purpose organization, then no U.S. organization or donor may knowingly contribute any funds to these local institutions directly or via a U.S.-based charitable organization. Ultimately, innocent, impoverished individuals such as children, pregnant women, the sick, the elderly, and orphans that have nothing to do with terrorism (and in fact bear the brunt of the ongoing violent conflict) are collectively punished for their condition. The U.S.-based charities as well as U.S. donors, including those who support the war on terrorism, may reasonably disagree on political grounds with the U.S. government’s reasoning. Moreover, donors may believe that at the very least they should retain their due process rights with respect to having their First Amendment rights constrained.Accordingly, this Paper begins by describing the legal framework in which such designations occur, the various ways in which an organization can be designated as a foreign terrorist organization (FTO), the limits of judicial review, and the relationship between the designation process and the criminal provisions and criminal prosecutions on providing material support to designated organizations. Part II explains the comprehensive implications, for individuals and organizations, of designating an organization as an FTO, paying particular attention to criminal sanctions. Part III challenges the reasoning applied in existing case law in regard to procedural and substantive Due Process implications of FTO designation and providing material support to FTOs. Part IV challenges the courts’ reasoning in providing material support cases with respect to First Amendment freedom of expression and association rights. Part IV emphasizes the past and ongoing targeting of Arab and Muslim individuals and organizations with respect to the enforcement of laws related to terrorism. Finally, Part V concludes with some recommendations on how to improve the existing FTO designation process and the criminal provisions for providing material support to FTOs or terrorist activities to minimize the risk of violating the Due Process Clause and First Amendment and avoid erroneous results.