Material Support of Terrorists and Foreign Terrorist Organizations: Sunset Amendments in Brief
CRS Report for Congress
Material Support of Terrorists and Foreign
Terrorist Organizations: Sunset Amendments
in Brief
Charles Doyle
Senior Specialist
American Law Division
Summary
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004
amends two federal terrorist assistance prohibitions. Those amendments were to expire
on December 31, 2006, P.L. 108-458, 118 Stat. 3762-764 (2004). P.L. 109-160 extended
their expiration date until February 3, 2006, 119 Stat. 2957 (2005); P.L. 109-170
extended it yet again until March 10, 2006, 120 Stat. 3 (2006). Section 104 of the USA
PATRIOT Improvement and Reauthorization Act and Terrorism Prevention
Reauthorization Act (H.R. 3199), made the amendments permanent, P.L. 109-177, 120
Stat. 195 (2006). In their present form the amendments, found in section 6603 of the
act: (1) amend the definitions of “material support or resources,” “training,” and “expert
advice or assistance” as those terms are used in 18 U.S.C. 2339A and 2339B, and of
“personnel” as used in section 2339B; (2) add a more explicit knowledge requirement
to section 2339B; (3) expand the extraterritorial jurisdiction reach of section 2339B; (4)
enlarge the list of federal crimes of terrorism, 18 U.S.C. 2332b(g)(5); (5) add the
enlarged list to the inventory of predicate offenses for 18 U.S.C. 2339A (material
support for the commission of certain terrorist crimes) and consequently for 18 U.S.C.
2339B (material support for designated terrorist organizations); and (6) preclude
prosecution for certain violations committed with the approval of the Secretary of State
and concurrence of the Attorney General (e.g., stings).
This is an abbreviated version of CRS Report RL33035, Material Support of
Terrorists and Foreign Terrorist Organizations: Sunset Amendments, without the
footnotes, appendix, and some of the citations to authority found in the longer, parent
report.
Material Support — Definitions: Sections 2339A and 2339B are proximity crimes. They
proscribe certain conduct because of its proximity to other crimes, in this case terrorist
offenses. Section 2339A outlaws providing material support or resources for the
commission of any of several designated federal crimes that a terrorist might commit or
attempting or conspiring to such support or assistance; section 2339B outlaws providing
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material support or resources to a designated foreign terrorist organization or attempting
or conspiring to do so.
Section 6603 of the Intelligence Reform and Prevention of Terrorism Act made
several amendments to section 2339A and 2339B in response to judicial decisions that
either found them unconstitutionally vague or suggested a demanding mens rea
(knowledge) requirement. Section 2339A contains a definition of “material support or
resources” that applies to both sections, 18 U.S.C. 2339A(b). Some courts had been
particularly troubled by the uncertain sweep of the terms “training,” “personnel,” and
“expert advice or assistance” used in the definition. The Ninth Circuit, for instance, had
found the terms unconstitutionally vague, Humanitarian Law Project v. Reno, 205 F.3d
1130, 1137-138 (9th Cir. 2000); “personnel” because the term might be thought to
envelope the efforts of a simple advocate; “training” because the term might be thought
to sweep in benign academic instruction; and “expert advice or assistance” because like
“personnel” and “training” might be read to include First Amendment protected pure
speech and advocacy.
Section 6603 supplied a new definition for “training” — “the term ‘training’ means
instruction or teaching designed to impart a specific skill, as opposed to general
knowledge,” 18 U.S.C. 2339A(b)(2). As explained by Justice Department witnesses,
“[the amendment] would also add a specific definition of ‘training’ in response to the
Ninth Circuit’s decision that this term too was unconstitutionally vague. . . As an
example, the court opined that the term conceivably could include teaching members of
foreign terrorist organizations to use international human rights laws to resolve conflicts
in a peaceful manner. [The amendment] would alleviate such concerns by limiting the
term ‘training’ to ‘instruction or teaching designed to impart a specific skill, as opposed
to general knowledge’. . .” Critics might argue that the attempted fix appears to turn on
the dubious premise that effective advocacy (e.g., peaceful conflict resolution through the
use of human rights laws) is not a skill.
The same might be said of section 6603’s new definition of “expert advice or
assistance” plucked from the Federal Rules of Evidence — “the term ‘expert advice or
assistance’ means advice or assistance derived from scientific, technical or other
specialized knowledge,” 18 U.S.C. 2339A(b)(3).
Section 6603 may rely on its First Amendment disclaimer to answer the objection
that the uncertainty of the two terms could chill or lead to prosecution of mere advocacy
or other First Amendment protected activities — at least with regard to prosecutions
under 2339B: “Nothing in this section shall be construed or applied so as to abridge the
exercise of rights guaranteed under the First Amendment to the Constitution of the United
States,” 18 U.S.C. 2339B(i).
In any event, section 6603’s new explanation of the scope of the prohibition against
providing “personnel” in section 2339B seems far more specific and to correspond more
closely the courts’ concerns:
No person may be prosecuted under this section in connection with the term
“personnel” unless that person has knowingly provided, attempted to provide, or
conspired to provide a foreign terrorist organization with 1 or more individuals (who
may be or include himself) to work under that terrorist organization’s direction or
control or to organize, manage, supervise, or otherwise direct the operation of that
organization. Individuals who act entirely independently of the foreign terrorist
organization to advance its goals or objectives shall not be considered to be working
under the foreign terrorist organization’s direction and control. 18 U.S.C. 2339B(h).
Finally, section 6603 addressed an ambiguity inherent in the earlier definition. In its
earlier form, the definition of “material support or resources” in subsection 2339A
included a mixture of tangible things and other things that might more properly be
considered benefits or services (e.g., currency and training). Yet this defining mixture
ended with the catch-all phrase, “and other physical assets,” 18 U.S.C. 2339A)(b)(2000
ed.). Section 6603 responded with an amendment to section 2339A stating that “material
support or resources” covers services and other intangible property, and that the specific
types of property and services mentioned are simply examples.
Critics might contend that by eliminating the ambiguity in favor of the more
sweeping construction (“property, tangible or intangible, or services including” versus
“property ... or other physical assets”) the amendment is more likely to create than
dissipate vagueness.
The first court to pass upon the constitutionality of section 6603’s clarifying
amendments gave them a mixed grade: section 6603 did cure the vagueness problems
associated with use of the term “personnel,” but the terms “training” and “expert advice
or assistance” remain unconstitutionally vague notwithstanding the amendments in
section 6603, the term “service” which section 6603 added to the definition of prohibited
support or resources is itself unconstitutionally vague, and the “boilerplate” First
Amendment clause does nothing to supply greater clarity, Humanitarian Law Project v.
Gonzales, __ F.Supp.2d __ , __ (C.D. Cal. July 25, 2005).
The First Amendment clause, in the court’s view, is “inadequate to cure potential
vagueness issues because it does not clarify the prohibited conduct with sufficient
definiteness for ordinary people,” id. at __ n.20. By the same token, the court felt that
“for the average person with no background in law,” use of a definition from the Federal
Rules of Evidence would do little to clarify the mysteries of the term “expert advice or
assistance,” id. at __. And “[e]ven as amended [by section 6603], the term “training” is
not sufficiently clear so that persons of ordinary intelligence can reasonably understand
what conduct the statute prohibits,” particularly when the term “easily encompasses
protected speech and advocacy,” id. at __. Since the term “service” is defined to include
“training” and “expert advice or assistance,” they pull the term down with them, id. at __
.
Material Support — Knowledge: Section 2339B outlaws “knowing” violations. Narrowly
construed, this might serve as a counter balance for the suspect reach of the “material
support” element. The temporary amendment, however, added the caveat that, “[t]o
violate this paragraph, a person must have knowledge that the organization is a designated
terrorist organization (as defined in subsection (g)(6)), that the organization has engaged
or engages in terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and
Nationality Act), or that the organization has engaged or engages in terrorism (as defined
in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and
Justice Department officials urged the adoption of the addition in order to avoid case
law indicating that conviction would require either proof of knowledge of the specific
facts that led to a particular entity being designated a terrorist organization or proof of
knowledge that the assistance provided would be used for terrorist purposes. The change
seems to foreclose those problems, but it does little for any vagueness problems.
Material Support — Overseas Application: As a result of modifications by section 6603,
section 2339B now describes its overseas application more explicitly and more
expansively than was once the case. It permits federal prosecution of an act proscribed
in section 2339B and committed entirely abroad by a foreign national with no greater
connection to the United States required than that we have been able to bring the offender
to this country for trial, 18 U.S.C. 2339B(d)(1)(D)(“There is jurisdiction over an offense
under subsection (a) if . . . (D) after the conduct required for the offense occurs an
offender is brought into or found in the Untied States, even if the conduct required for the
offense occurs outside the United States”).
In its other modifications to jurisdiction, section 6603 arguably does no more than
articulate more specifically the pre-existing reach of section 2339B. Prior to the
enactment of section 6603, section 2339B applied to anyone who acted “within the United
States or subject to the jurisdiction of the United States,” when they provided material
support to a foreign terrorist organization, 18 U.S.C. 2339B(a)(1)(2000 ed.). A person
“subject to the jurisdiction of the United States” arguably referred to American citizens,
residents of this country, and entities organized under our laws. Moreover, if
extraterritorial jurisdiction existed over the underlying offense, it was said to exist over
aiding and abetting the commission of the underlying offense or over conspiracy to
commit it.
Section 6603 removed the phrase “within the United States or subject to the
jurisdiction of the United States,” from section 2339B(a)(1) and provided a more explicit
list of jurisdictional circumstances in section 2339B(d)(1), i.e., the offense is committed
in whole or in part within the United States; the offender is a U.S. citizen, permanent
resident alien, or habitual U.S. resident; the offense occurs in or affects U.S. interstate or
foreign commerce; the offender is later found or brought to the U.S.; or the offender is an
accomplice or (aider or abetter) or conspirator with respect to a violation of the section
by another over whom the U.S. has subject matter jurisdiction.
Federal Crimes of Terrorism: Section 2339A outlaws providing material support or
resources with the intent that they be used for the commission of certain designated
violent crimes (predicate offenses). Section 6603 enlarged the list of predicate offenses
to include any “federal crime of terrorism” cited in 18 U.S.C. 2332b(g)(5)(B). Section
18 U.S.C. 844(f) or (i) (bombing federal property or property in or affecting
commerce)
With the addition of the federal crimes of terrorism not already among the enumerated,
section 2339A now also condemns assistance relating to:
49 U.S.C. 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of
human life by means of weapons, on an aircraft within U.S. jurisdiction)
jurisdiction).
In certain of the earlier versions of the intelligence reform legislation, and in various
free standing bills devoted to a similar purpose, proponents would have brought any crime
of “international or domestic terrorism” (18 U.S.C. 2331) rather than “any federal crime
of terrorism” (18 U.S.C. 2332b(g)(5)(B)) within the circle of predicate offenses. Use of
the phrase “international or domestic terrorism” has generated considerable debate in the
context of the USA PATRIOT Act, and it may be for this reason that the more narrowly
and precisely defined “federal crime of terrorism” cross reference was ultimately selected.
Section 6603 also introduced two crimes — 18 U.S.C. 1361 (destruction of federal
property) and 18 U.S.C. 2156 (production of defective national defense material) — into
the family of federal crimes of terrorism. Both crimes were already predicate offenses
in section 2339A, so it was unnecessary to introduce them into section 2332b(g)(5)(B) in
order to bring them within section 2339A.
Of course there are other consequences that flow from including sections 1361 and
Prior to designation as federal crimes of terrorism, violations of section 2156 were subject
to the general five year statute of limitations, 18 U.S.C. 3282; now they are subject to an
eight year statute of limitations unless they involve the risk of death or serious bodily
injury in which case they may be prosecuted at any time, 18 U.S.C. 3286. Violations of
section 1361 which were already subject to an eight year statute of limitations, 18 U.S.C.
3286, may now be prosecuted at any time if they involve the risk of death or serious
injury, id. Prior to designation as a federal crime of terrorism conviction and
imprisonment for violation of either section carried a maximum term of supervised
release of not more than three years; the maximum term is now supervision for life or any
term of years following a conviction for violation of either section that involves the risk
of death or serious injury, 18 U.S.C. 3583. Prior to designation as a federal crime of
terrorism, suspects charged with a violation of either section were entitled to normal bail
procedures; now they face the rebuttable presumption of pre-trial detention, 18 U.S.C.
3142. Prior to designation as a federal crime of terrorism, neither section appeared as a
racketeering (RICO) predicate offense, 18 U.S.C. 1961 (federal racketeering statutes
outlaw the patterned commission of a predicate offense or offenses to acquire or operate
an enterprise in or affecting interstate commerce, 18 U.S.C. 1961-1962). By designation
as a RICO predicate they also become money laundering predicate offenses under
sections 18 U.S.C. 1956, 1957 (18 U.S.C. 1956(c)(7)(A), 1957(f)(3)), a status which
section 1361 but not section 2156 already enjoyed, 18 U.S.C. 1956(c) (7)(D).
Prosecutorial Forbearance: Section 6603 also added an immunity provision under which
an individual or entity who provides “personnel,” “training,” or “expert advice or
assistance” in violation of section 2339B may not be prosecuted if the offense was
committed with the prior approval of the Secretary of State and the Attorney General as
long as the support cannot be used to carry out the various violent acts of terrorism
described in 8 U.S.C. 1182(a)(3)(B)(iii) (hijacking, sabotage, hostage taking, assassination
and the like), 18 U.S.C. 2339B(j).
The provision is presumably designed to encourage “stings” and other undercover
investigations. It is not clear why it is necessary. No prosecution of 18 U.S.C. 2339B,
or any other federal crime for that matter, is possible without the Attorney General’s
approval, ordinarily exercised through the various United States Attorneys, F.R.Crim.P.
7(c)(indictments must be signed by the attorney for the government). Of course, the State
Department is more likely to be involved in activities abroad.