The material support provisions have been criticized by rights groups as violating the First Amendment, as they criminalize activities like the distribution of literature, engaging in political advocacy, participating in peace conferences, training in human rights advocacy, and donating money and humanitarian assistance, even when the support is intended only to promote lawful and non-violent activities.[4] The provisions are vague and wide-ranging, and impose guilt by association by punishing people not for their own acts but for the acts of those they have supported.[4] The Secretary of State's power to designate groups as terrorist has also been criticized as being too broad, giving the Executive too much discretionary power to label groups as "terrorist" and criminalize their supporters.[4] The American Civil Liberties Union note that: "Federal 'material support' and conspiracy statutes allow the government to secure convictions without having to show that any specific act of terrorism has taken place, or is being planned, or even that a defendant intended to further terrorism."[5]
David D. Cole, in his book Terrorism and the Constitution, stated that:
... after lying virtually dormant for its first six years of existence, the material support law has since 9/11 become the Justice Department's most popular charge in antiterrorism cases. The allure is easy to see: convictions under the law require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. But what makes the law attractive to prosecutors—its sweeping ambit—is precisely what makes it so dangerous to civil liberties.[6]
Professor Jeanne Theoharis describes the measures in equally critical terms:
Material support laws are the black box of domestic terrorism prosecutions, a shape-shifting space into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Their vagueness is key. They criminalize guilt by association and often use political and religious beliefs to demonstrate intent and state of mind.[7]
US Senator Patrick Leahy sent a letter to Attorney GeneralEric Holder and Secretary of StateHillary Clinton regarding humanitarian relief in Somalia in 2011. "I have long urged reform of our laws governing so-called material support for terrorism. The current law is so broad as to be unworkable. Aid workers trying to provide relief to starving Somalis fear they could be prosecuted if some of it were to end up in the hands of al-Shabaab, an al-Qaeda affiliate that controls parts of Somalia. And so while the situation in Somalia grows more desperate each day, with children dying needlessly, the delivery of food and medicines is hampered, first by al-Shabaab, which is denying access to broad swaths of Somali territory, and secondly, by our overly restrictive laws. The Secretary of State has the power to grant exemptions where the purpose is not to engage in terrorist activity. She should use that authority immediately to ensure aid can reach as many Somalis as possible."[8]
Implementation
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The following people have been charged or convicted of providing material support for terrorism under this law.
David Hicks, a former Guantanamo detainee who pleaded guilty in 2007 and served a sentence of less than one year in Australia, before his case was thrown out as a court found the crime is not a war crime and cannot be tried by a military court.[9]
Zachary Adam Chesser, who pleaded guilty to communicating death threats to South Park directors Trey Parker and Matt Stone, soliciting violent jihadists to "desensitize" law enforcement, and attempting to provide material support to a designated foreign terrorist organization. He was sentenced to 25 years in prison.
Lynne Stewart, a 70-year-old veteran civil rights lawyer who was sentenced to 10 years in prison for transmitting information from her imprisoned client Omar Abdel-Rahman to his accomplices.[10]
Tarek Mehanna, convicted of providing "material support" to al-Qaida, for translating books and videos for website At Tibyan, encouraging readers to join al-Qaida and kill American soldiers in Iraq, sentenced to 210 months.[17]
in January 2016, social networking service Twitter was sued by the widow of a U.S. man killed in the Amman shooting attack, claiming that allowing ISIL to use the platform constituted material support of a terrorist organization.[22] The lawsuit was dismissed under Section 230 of the Communications Decency Act, which dictates that the operators of an interactive computer service are not liable for content published on the service by others.[23]
During the Syrian Civil War a naturalized U.S. citizen of Bosnian origin joined ISIL and died while fighting. In 2015, six Bosnian residents of the U.S. were charged with providing material support for terrorism.[24][25] The six sent funds ranging from $150 to $1,850, and also "U.S. military uniforms, tactical clothes and gear, combat boots, military surplus supplies and other items from businesses in St. Louis" in August 2013.[26][27]
^"Minneapolis Man Pleads Guilty to Conspiracy to Provide Material Support to al Qaeda". Federal Bureau of Investigation. May 20, 2009. Archived from the original on May 23, 2009. According to the plea agreement, from about March 2000 through at least December 2003, Warsame conspired with others to provide material support to al Qaeda in the form of personnel, training, and currency. Specifically, in March 2000, Warsame traveled to Afghanistan where he attended an al Qaeda training camp outside Kabul. In the summer of 2000, he then traveled to the al Faruq training camp, where he received further training and met Osama Bin Laden. Warsame subsequently worked at an al Qaeda guesthouse and clinic.
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