THE BLOG
10/23/2007 06:00 pm ET Updated May 25, 2011

Let's Reassess Material Support

A mistrial was declared Monday on most of the charges in the federal case against the Holy Land Foundation and five of its former leaders. HLF was the nation's largest Muslim charity before the government shut it down and accused it of providing "material support" to a foreign terrorist organization. The group had made donations to local "zakat" committees that provide humanitarian aid in the West Bank and Gaza Strip. (Zakat is a form of tithing and one of the obligatory five pillars of Islam.) Although the government claimed the committees were controlled by Hamas, the committees were not designated terrorist organizations and the U.S. government did not allege that HLF intended to support terrorism or that its funds were actually used for that purpose. (Full disclosure: the ACLU represents two of the HLF defense lawyers in our lawsuit challenging the National Security Agency's warrantless surveillance program.)

The mistrial represents a major setback for the government's terrorism financing prosecution. It also provides a good -- and necessary -- opportunity to reassess the criminal material support statute used in the case.

In a now familiar pattern, the Bush administration has taken a law intended to address a real counterterrorism issue -- the need to ensure that humanitarian aid and charitable gifts are not diverted to reprehensible ends -- and interpreted it so broadly as to threaten the very goals it seeks to achieve. In the process, fundamental constitutional principals of free speech and due process are at stake.

In addition to raising serious constitutional issues, the government's use of the material support law also alienates the very communities the United States needs as partners in counterterrorism, at home and abroad. A Pew Research Center Report [PDF] found earlier this year that Muslims in America are highly assimilated and very concerned about Islamic extremism. Yet the majority also believes that the government's counterterrorism policies target Muslims, a belief that may be strengthened by the fact that, in perception if not in reality, material support prosecutions over the last five years have disproportionately and unfairly targeted Muslim groups and individuals.

The increased use of the material support laws is troubling for several reasons:

Material support prosecutions criminalize guilt by association. Fundamental to this country's conception of criminal responsibility is the requirement that, in the words of the Supreme Court, "guilt is personal." In other words, we do not criminalize guilt by association. The material support statute and the government's application of it, however, do just that by not requiring that the purpose of any support be unlawful. For instance, in the HLF case, it didn't matter that HLF did not provide direct support to Hamas, or that the zakat committees were not themselves designated supporters of terrorism. Nor did it matter that the government didn't claim HLF's funds were used for terrorist acts. The government proposed it was enough that the defendants knew or should have known the committees had connections to Hamas, and that charitable donations made it possible for Hamas to fund terrorist activities.

The government's position has breathtaking ramifications not just for individual donors, but for a large swath of this country's leading humanitarian agencies that provide critical aid in war-torn regions including in countries that are critical to the United States' counterterrorism efforts. To reach and provide aid to civilian victim populations, they must often work alongside or deal with groups and individuals who engage in activity that could have unlawful as well as lawful aims. The government's construction of the material support statute leaves charities fearful of criminal prosecution because someone, at some stage of the aid delivery, might have ties to a designated terrorist group.

The material support law, as applied now, allows the possibility of criminally prosecuting morally innocent people who intend to support lawful activity through humanitarian aid, speech, or association.

The material support law does not make clear what's legal and what isn't. A basic principle of Fifth Amendment due process requires that prohibited conduct must be specifically described so that an ordinary person would understand what is and is not proscribed. If the conduct includes expression or association, then the combination of First Amendment and due process concerns requires greater scrutiny. The material support statute's prohibitions against "training," "expert advice or assistance" and "services," however, leaves each of these terms undefined and encompasses otherwise lawful activity. For example, a doctor doing humanitarian relief work in an area in which a designated terrorist organization operates could be criminally charged with material support in the form of "services" or "expert assistance." So could an engineer who provides water purification systems or sanitation equipment or shelter.

Material support laws criminalize freedom of speech, conduct and association without adequate opportunity to challenge the blacklisting of the groups at issue. Under the material support statute, the government can blacklist an organization and then prosecute someone for supporting it through conduct that is otherwise protected under the First Amendment, while prohibiting that person from challenging the government's blacklisting designation.

Achieving the goals of the material support statute does not require violating the Constitution. Here are two fixes:

* As the ACLU has argued in a friend of the court brief on behalf of humanitarian groups concerned about material support prosecution, Constitutional due process concerns would be allayed if the statute required that a group or individual must have specific intent to provide material support for terrorism.

* A person prosecuted for providing First Amendment-protected support to a blacklisted organization must be able to challenge, in her own criminal trial, the propriety of the blacklisting itself and the process through which it occurred.

It is only when our anti-terror goals are pursued in harmony with the values enshrined in our Constitution that we will achieve both national security and the continuation of our prized democracy.