AMENDING AMERICAN NATIONAL SECURITY LAW TO EMPOWER CONSTRUCTIVE

MATERIAL SUPPORT:
A Critical Examination of Material Support Under 18 U.S.C. 2339A
& 2339B

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 New York Times
columnist Roger Cohen has termed Obamas Doctrine of
Restraint.1

The Presidents perceived need to redefine

1 Roger Cohen, Obamas Doctrine of Restraint: The New York Times (October 12,
2015), available at http://www.nytimes.com/2015/10/13/opinion/obamasdoctrine-of-restraint.html http://www.nytimes.com/2015/10/13/opinion/obamasdoctrine-of-restraint.html?_r=0

Americas foreign policy heft in an interconnected world of more

equal powers, along with the President having become
temperamentally inclined to prudence and diplomacy over force,
has catalyzed a paradigmatic shift away from the strategic
disposition that had directed United States anti-terrorism policy
since 9/11.2
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.

Despite this maturation of outlook, 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 wake of the
wars in Iraq and Afghanistan and the Arab Spring because of the
erosion of the state structures that maintained often oppressive
2 Id. at 5.
2

order in those regions during the latter half of the 20th

Century.

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
Presidents new policy approach and shed their black and white
appreciation of the national security threats posed by terrorism.
Chief among the laws outmoded by the new reality, are 18
U.S.C. 2339A and 18 U.S.C. 2339B,3 which make a federal offense
of providing the 18 U.S.C. 2339A(b) definitions of material
support to any organization engaged in terrorism, terrorist
activity, or any organization designated as a foreign terrorist
organization (FTO) by the Secretary of State under the authority
of 8 U.S.C. 1189(a)(1).4

While the Material Support Statutes

are a means of eroding the flow of resources that has fueled the
FTOs, terrorism, and terrorist activity, it is in effect an
overbroad law that has erected a barrier to constructive
engagement with groups and individuals that could serve as a
mechanism for supplanting violent terrorist ideologies with more
democratic ideals and practices that are compatible with ordered,
lawful society.

Moreover, the application of the Material

318 U.S.C. 2339A and 18 U.S.C. 2339B will be jointly referenced as the

Material Support Statutes for the sake of clarity and concision when being
discussed jointly.
4 18 U.S.C. 2339A (2009); 18 U.S.C. 2339B (2015); 8 U.S.C. 1189 (2004); 8
U.S.C. 1189(a)(1).

Support Statutes serve to narrow and disempower protections of

both the First and Fifth Amendments.
This paper will exegetically engage the Material Support
Statutes, as well as legal attacks on the constitutionality and
wisdom of the statutes through the caselaw and relevant
scholarship, while emphasizing how these issues should serve as
an impetus for change in the law and what that change ought to
be.

Fundamentally, this paper will argue that reconfiguration of

the law of material support is essential to supporting the

foreign policy approach of the President 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 terrorism; additionally, this
paper will engage the excessive threat to Constitutional rights
in the United States posed by the vague and constitutionally
corrosive definitions of material support under 18 U.S.C.
2339A.5

THE LEGISLATIVE HISTORY OF THE MATERIAL SUPPORT STATUTES AND THE

CURRENT STATE OF THE LAW:

Evolution of the Material Support Statutes

5 18 U.S.C. 2339B; 18 U.S.C. 2339A.
4

The metamorphosis of the Material 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.6

At its inception, 18 U.S.C. 2339A was

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

within the Violent Crime Control and Law Enforcement Act of 1994
(VCCLEA) without any scrutiny in the supporting House Committee
report on the bill.7

The VCCLEA 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.8
The Material Support Statutes began to grow teeth with the
passage of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), which grafted 18 U.S.C. 2339B onto its parent
statute.9

The concern articulated by the House Committee report

6 Charles Doyle, Terrorist Material Support: An Overview of 18 U.S.C. 2339A

and 2339B (2010) at 1.
7 Violent Crime Control and Law Enforcement Act of 1994; Terrorist Material
Support: An Overview of 18 U.S.C. 2339A and 2339B at 1; 1994 U.S.C.C.A.N. 1801
(1994).
8 Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B at 1;
The Violent Crime Control and Law Enforcement Act of 1994, Pub.L 103-322
(1994).
9 The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L 104-132
(1996).

on AEDPA was that [a]llowing an individual to supply funds,

goods, or services to an organization, or to any of its
subgroups, that draw significant funding from the main
organizations treasury, helps defray the costs to the terrorist
organization of running the ostensibly legitimate activities;
wherefore, providing any material support as defined in 2339A(b)
(1) to a designated FTO, regardless of whether that material
support applied directly to crimes of terrorism or terrorist
activity was necessary to undermine the financing of terrorism.10
The Material Support Statutes were further empowered under
the governments vivified anti-terrorism mandate in the wake of
9/11 with the 2001 passage of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (USA PATRIOT Act).11

The USA PATRIOT Act

amended both 2339A and 2339B by extending the maximum term of

imprisonment from 10 to 15 years, thus elevating the severity of
a 2339A violation to match the consequences of a 2339B
violation.12

The USA PATRIOT Act also added a new life

imprisonment penalty when the acts of the materially supported

FTO, terrorism, or terrorist activities resulted in death.13

10 Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B.

11 Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism, Pub.L 107-56 (2001); Terrorist Material
Support: An Overview of 18 U.S.C. 2339A and 2339B at 1.
12 USA PATRIOT ACT.
13 USA PATRIOT ACT.

A final amendment of the Material Support Statutes occurred

with the Intelligence Reform and Terrorism Prevention Act of
2004 (IRTPA), which enacted a redefinition of material support
under 2339A(b)(1).14

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 18 U.S.C. 2, to mean instruction
or teaching designed to impart a specific skill, as opposed to
general knowledge.15
The final modifications under the IRTPA were the addition of
expert advice or assistance, defined as advice or assistance
derived from scientific, technical or other specialized
knowledge as a form of material support, and the explicit
definition of personnel as 1 or more individuals who may be or
include oneself.16

Material support continued to exclude from

its scope the provisioning of medicine or religious

materials.17

The IRTPA also extended the maximum prison term

under 2339B to 20 years.18

These changes marked a departure

from the structure of specifically enumerated forms of material

14 Intelligence Reform and Terrorism Prevention Act of 2004, Pub.L 108-458

(2004); Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B

at 1.
15 IRTPA; Terrorist Material Support: An Overview of 18 U.S.C. 2339A and
2339B at 1; 18 U.S.C. 2; 18 U.S.C. 2339A(b)(2).
16 IRTPA; 18 U.S.C. 2339A(b)(3); 18 U.S.C. 2339A(b)(1).
17 18 U.S.C. 2339A(b)(1).
18 IRTPA; 18 U.S.C. 2339B(a)(1).

support and heralded a new era of prevalence and potency for the
Material Support Statutes in the national security jurisprudence
of the United States.

Current State of the Law

As of this writing 2339A and 2339B taken comprehensively
proscribe attempting to, conspiring to, or actually aiding and
abetting the preparation or carrying out of material support for
an FTO or a violation of a federal crime of terrorism through
knowingly providing material support as defined in 2339A(b)(1),
(b)(2), and (b)(3); or, concealing such material support.19
Under both statutes attempt is defined under 2339A(a) and
requires both intent to violate the statute, and some
substantial step towards its completion, meaning that absent an
intervening variable, the attempt would likely succeed.20
Furthermore, the fact of impossibility of completion due to the
representative of the FTO or the orchestrator of the terrorism or
terrorist activity being an undercover agent, or some showing of
inability by the FTO or the orchestrator of the terrorism or
terrorist activity to accomplish objectives illegal under the
Material Support Statutes will not ameliorate the liability.21

19 18 U.S.C. 2339A(a); 18 U.S.C. 2339 (b)(1)-(3).

20 18 U.S.C. 2339A(a); Terrorist Material Support: An Overview of 18 U.S.C.

2339A and 2339B at 6; United States v. Morris, 549 F.3d 548 (7th Cir. 2008).
21 Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B at 6.

Moreover, 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 coconspirators in furtherance of the overall scheme.22 Both
attempt and conspiracy convictions mandate the same consequences
as a completed offense, that being a maximum of 15 years
incarceration under 2339A, or 20 years under 2339B, or life
imprisonment if the offense caused death; however, conspiracy
charges under the Material Support Statutes do not preclude
charges for the substantive offense from being additionally
leveed.23

Continuingly, [a]ny financial institution that

knowingly fails to comply with 18 U.S.C. 2339 subsection (a)(2)

shall be subject to a civil penalty in an amount that is the
greater of $50,000; or, twice the amount of which the financial
institution was required under subsection (a)(2) to retain
possession or control after discovering its FTO, terrorism, or
terrorist activity funding purpose.24
In addition to the grounds for liability under 2339A and
2339B attempt and conspiracy theories, 18 U.S.C. 2 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 Material Support
22 Id. at 6; 18 U.S.C. 2339A(a).
23 18 U.S.C. 2339B(a)(1); 18 U.S.C. 2339A(a); United States v. Chandia, 514
F.3d 365 (4th Cir. 2008).
24 18 U.S.C. 2339B(b) [Italics mine]; 2339B(A); 2339B(B).

Statutes, is liable to the same extent as the direct perpetrator

of the offense.25

Liability 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 seek by his action to make
it succeed.26

The 9th Circuit clarified in United States v.

Rivera-Relle that the defendant could not be double charged with

attempt and completion, though both bear the same independent
penalty.27

Material Support as it Stands Today

Material support or resources is defined by 2339A(b) as
including any any property, tangible or intangible, or service,
this umbrella includes: Currency 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, personnel and transportation,
except medicine or religious materials.28

The foci of contests

25 18 U.S.C. 2; Terrorist Material Support: An Overview of 18 U.S.C. 2339A

and 2339B at 6.
26 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949).
27 United States v. Rivera-Relle, 333 F.3d 914, 921 n.11 (9th Cir. 2003).
28 18 U.S.C. 2339A(b)(1).

10

involving this definition have been on the terms training,29

expert advice or assistance,30 and personnel31.

THE MATERIAL SUPPORT STATUTES IN ACTION:

The Material Support Statutes have proven highly litigious.
Challenges 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 Holder v.
Humanitarian Law Project that rejected all three theories as
applied to representative Humanitarian organization seeking to
provide constructive material support to the Kurdistan Workers
Party (PKK).32

This paper will now examine how the framework of

the Material Support Statutes was vulnerable to these claims, how

the jurisprudence developed in the lead up to Holder, and why the
decision, which overruled twelve years of precedence, is
antithetical to the national security policy of the United
States, legally tenuous, and ripe for legislative response.

Humanitarian Law Project

29 Training as defined by 18 U.S.C. 2339A(b)(2): Instruction or teaching
designed to impart a specific skill, as opposed to general knowledge.
30 Expert advice or assistance as defined by 18 U.S.C. 2339(b)(3): Advice
or assistance derived from scientific, technical or other specialized
knowledge.
31 Personnel as defined by 18 U.S.C. 2339A(b)(1): 1 or more individuals who
may be or include oneself.
32 Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010).

11

The Humanitarian Law Project (HLP) 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.33

The HLP has garnered

consultative status at the United Nations with a mandate to seek

compliance with armed conflict laws.34

From the years 1998-

2010, the HLP was embroiled in a series of lawsuits against

various levels of U.S. government and Attorneys General Janet
Reno, John Ashcroft, and ultimately Eric Holder that culminated
in the Supreme Court of the United States (SCOTUS) opinion in
Holder v. Humanitarian Law Project and came to define the
jurisprudence of material support.35

Humanitarian Law Project v. Reno (2000)

Prior to the inception of the modifications to the Material
Support Statutes under the USA PATRIOT ACT, the AEDPA, and the
IRTPA, the HLP brought suit in the Central District of California
in two cases, which upon being combined on appeal were affirmed
by the 9th Circuit in Humanitarian Law Project v. Reno, which
upheld an as applied injunction against government enforcement of
2339A against the HLP because the terms training and
personnel were unconstitutionally vague.36
33
34
35
36

Though the case

Humanitarian Law Project Website: http://hlp.home.igc.org

Id.
Id.
Humanitarian Law Project v. Reno, 205 F.3d 1130(9th Cir. 2000).

12

held that the classification of the HLPs proposed constructive

material support of the PKK and the Liberation Tigers of Tamil
Eelam (LTTE) was illegal under 2339A and constitutionally
problematic on grounds of vagueness, the HLPs First Amendment
pleas were resoundingly rejected.37
The HLPs proffered theory that the 2339A imposed a guilt
by association law contrary to associational protections under
the First Amendment as applied in NAACP v. Claiborne Hardware was
rejected because that case held that punishing by reason of
association alone was unconstitutional, but 2339A did not
proscribe membership, or sharing the views of an FTO, rather
2339A proscribed affording material support to such
organizations that were engaged in terrorism or terrorist
activities and was held constitutional under an intermediate
scrutiny analysis.38

Strict scrutiny was not applied because

the material support restriction here . . . is not aimed at

interfering with the expressive component of [sic] the HLPs
conduct but at stopping aid to terrorist groups.39
Furthermore, the 9th Circuit held that the 2339As lacking
of an intent requirement, mandating a showing of specific intent
37 Id.
38 United States v. OBrien, 391 U.S. 367 (1968); see for Intermediate
Scrutiny Test: whether regulation is within the power of the government,
whether it promotes an important or substantial government interest, whether
that interest is unrelated to suppressing free expression, and whether the
incidental restriction on first amendment freedoms is no greater than
necessary?
39 Humanitarian Law Project v. Reno at 1133; citing, NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982); Id. at 1135 [Italics mine].

13

to further . . . illegal aims required under AntiDiscrimination Commission v. Reno did not apply because while
[a]dvocacy is always protected under the First Amendment . . .
making donations is protected only in certain contexts.40
Attempting to employ the jurisprudence of campaign contributions
to achieve the heightened level of exacting scrutiny by
analogizing the case at bar to Buckley v. Valeo, which applied
exacting scrutiny to restrictions on monetary campaign
contributions on a First Amendment theory, also failed as a
challenge to 2339A because the equation of monetary support
equaling political speech was distinguishably appropriate under
Buckley because that case involved contributions to
organizations whose overwhelming function was political
expression.41
Finally, the Court responded to the HLPs argument that the
statute violates their First and Fifth Amendment rights by giving
the Secretary of State unfettered discretion to limit their
right to associate with certain foreign organizations, and by
insulating her decisions from judicial review.42

This challenge

was overcome by the Courts rationale that precedent had barred

similar insulated regulations of speech on grounds of
unconstitutionality only when the regulation was of speech or
40 Id. at 1133; citing, American-Arab-Anti-Discrimination Commission v. Reno,
70 F.3d 1045 (9th Cir. 1985).
41 Id. at 1134; distinguishing, Buckley v. Valeo 424 U.S. 1 (1976).
42 Id. at 1136.

14

association per se[,] and that 2339As 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.43

Moreover,

the 9th Circuit asserted that the Secretary of States authority

under 8 U.S.C. 1189 is clearly supported under the executives
foreign policy authority.44
The inaugural string of HLP cases demonstrated that the
expressive conduct of materially supporting an FTO did not
constitute the sort of political speech protected by exacting
scrutiny under Buckley because the PKK and LTTE were not
organizations whose overwhelming function was political
expression.45

Continuingly, intermediate scrutiny applied to

the HLPs complaints because 2339A does not seek to regulate the
expressive component of HLPs material support for the PKK and
LTTE, but the enrichment of such FTOs and the furtherance of
terrorist activities.46

Finally, it was held that specific

intent to further terrorist activities was not required to

overcome First Amendment protections under the Material Support
Statutes.47

43
44
45
46
47

Id.
Id.
Id.
Id.
Id.

at
at
at
at
at

1137.
1137; 8 U.S.C. 1189.
1134.
1137.
1133.

15

Conversely, the Court held the terms training and

personnel unconstitutionally vague under the Fifth 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 FTO, an individual might free up
personnel to engage in terrorism, thus unconstitutionally
rendering protected political speech illegal.48

Additionally,

the vagueness of training, was held by the Court to open the

door for the unconstitutional prohibition of protected
expression should a plaintiff who wishes to instruct members of
a designated group on how to petition the United Nations to give
aid to their group be found to violate the statute.49
The IRTPA responded by defining these terms.

The new

definition of personnel being 1 or more individuals who may be

or include oneself, which does not ameliorate the constitutional
concerns of the Court because the language still could recognize
a violation when by being engaged in a purely expressive act of
speech an individual allows another person to transition from
similar advocacy and engage in terrorism or terrorist activities
directly.50

Even more of a blatant affront to the 9th Circuit is

the IRTPAs definition of training, which proscribed precisely

the sort of political advocacy that the 9th Circuit hypothesized
48 Id. at 1137.
49 Id. at 1138.
50 IRTPA; 18 U.S.C. 2339A(b)(2).
16

ad arguendo would be a plainly protected form of speech because

training was defined as the impartation of a specific skill,
as opposed to general knowledge.51

It is a blatant

contradiction of the opinion of the 9th Circuit that the IRTPA

proscribes precisely the sort of training that the court
imagined to obviously be protected.52
Prior to the statutory definitions under the IRTPA being
legislated, the HLP appealed the case to SCOTUS against the new
Attorney General in the case of Humanitarian Law Project v.
Ashcroft to no avail as the Court declined certiorari.53

Humanitarian Law Project v. Ashcroft (2004)

In 2001 the USA PATRIOT Act set the stage for the next round of
dispute between the HLP and the Office of the Attorney General
when it amended 2339A(b)(1) to include expert advice or
assistance, under the umbrella of material support, thus
threatening the ability of the HLP to as the Court described it,
support the PKKs peaceful and non-violent activities.54
Furthermore, the Court described the threatened agenda of the HLP
to include counduct[ing] fact-finding investigations on the
Kurds in Turkey and ... publish[ing] reports and articles
51
52
53
54

Humanitarian Law Project

Humanitarian Law Project
Humanitarian Law Project
Humanitarian Law Project
2004); The USA PATRIOT Act;

v.
v.
v.
v.
18

Reno, 205 F.3d. 1130; 18 U.S.C. 2339A(b)(2).

Reno 205 F.3d. 1130.
Ashcroft, 121 S.Ct. 1226 (2001).
Ashcroft, 309 F.Supp.2d 1185, 1189 (C.D.Cal
U.S.C. 2339A(b)(1).

17

presenting their findings, which are supportive of the PKK and

the struggle for Kurdish liberation[,] and that these reports
had illuminated the summary execution of more than 18,000 Kurds,
the widespread use of arbitrary detentions and torture... and the
wholesale destruction of some 2,400 Kurdish villages.55
Furthermore, the HLP has petitioned members of Congress to
support Kurdish human rights[,] argued for the release of four
Kurds who were elected to the Turkish Parliament in 1991, but
sentenced to 15 years in prison for their PKK membership, and
trained Kurds in humanitarian and international human rights law
in seeking a peaceful resolution of the conflict in Turkey.56

57

Similarly to their vagueness argument against the terms

personnel and training in Humanitarian Law Project v. Reno,
the HLP brought successful suit against Attorney General John
Ashcroft with an allegation of unconstitutional vagueness;
however, First and Fifth Amendment challenges to the authority of
55 Humanitarian Law Project v. Ashcroft 309 F.Supp.2d 1185, 1189.
56 Id. at 1189
57 The Court in Humanitarian Law Project v. Ashcroft, at 1190, found
specifically that the HLP sought to support the PKK in five ways:
(1) Engage in political advocacy on behalf of the PKK and the Kurds
before the U.N. Commission on Human Rights and the United States
Congress;
(2) Provide the PKK and the Kurds with training and written publications
on how to engage in political advocacy on their own behalf and on how to
use international law to seek redress for human rights violations;
(3) Write and distributed publications supportive of the PKK and the
cause of Turkish liberation;
(4) Advocate for the freedom of Turkish political prisoners, including
Leyla Zana, Hatip Dicle, Orhan Dogan, and Selim Sadak; and
(5) Assist PKK members at peace conferences and other meetings designed
to support a peaceful resolution of the Turkish conflict.

18

the Secretary of State under 8 U.S.C. 1189, as well as to the

constitutionality of what the HLP argued was criminalizing
associational speech without proof of intent once again failed
by the same reasoning as it did Humanitarian Law Project v.
Reno.58

The Court in Humanitarian Law Project v. Ashcroft found

that a statute must be sufficiently clear so as not to cause

persons of common intelligence . . . necessarily [to] guess at
its meaning and [to] differ as to its application, and that the
USA PATRIOT Act did not sufficiently identify the prohibited
conduct.59

The Court found the case at bar to be directly

analogous to Humanitarian Law Project v. Reno and found

specifically that expert fails to identify the types of
activities which may or may not be undertaken, that advice is
virtually synonymous with training and similarly vague, and
that assistance could encompass nearly any human resources
support.60

These findings motivated the Court to enjoin the

government from enforcing 2339A(b)(1)s proscription of expert

advice or assistance through 2339B against the HLP for the
activities enumerated by the Court.61
The only argument in Ashcroft that was not put forth on the
facts in Reno was that the vagueness of expert advice or
58 Id.; 8 U.S.C. 1189; Humanitarian Law Project v. Reno, 205 F.3d 1130
59 Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d at 1198-99; citing,
United States v. Wunsch, 84 F.3d 1110, 1119 (9th Cir. 1996); quoting, Connally
v. General Constr. Co., 269 U.S. 385, 391 (1926).
60 Id. at 1199.
61 Id. at 1201.

19

assistance was sufficiently overbroad as to demonstrate that a

law punishes a substantial amount of protected free speech
judged in relation to the statutes plainly legitimate sweep,
which would invalidate all enforcement of that law pending
legislative response to the overbroad language.62

The Court held

that their more limited injunction was sufficient and that a

nationwide injunction would be excessive given that there 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.63
In what was essentially a reengagement of the central issues
in Humanitarian Law Project v. Reno, the Court in Humanitarian
Law Project v. Ashcroft found the naked language of 2339A(b) to
be vague and in violation of the Fifth Amendment, while rejecting
arguments surrounding the authority of the Secretary of State
under 8 U.S.C. 1189, as well as rejecting an HLP plea for First
Amendment relief on a theory of violated associational rights.64
What is uniquely important about Humanitarian Law Project
v. Ashcroft is that the Court specifically enumerated the ways
that the HLP wished to support the PKK and emphasized
62 Id. at 1201; citing, Virginia v. Hicks, 123 S.Ct. 2191 (2003).
63 Id. at 1201; quoting, Virginia v. Hicks at 2197.
64 Id.
20

legitimating points such as serious United Nations engagement

with the HLP about the PKK and Kurdish crisis, the brutality and
magnitude of the violence being targeted by HLP relief efforts,
as well as the HLPs peaceable engagement of the United States
Congress on behalf of Kurds and the PKK.65

This dicta and

reasoning all speaks to a fundamental concern of the Court that

proscribing such engagement would be at best unwise, and at worst
suspect under the Constitution.66

Moreover, with the passage of

the IRTPA, Congress effectively disregarded these concerns as to

expert advice or assistance just as that act disregarded the
9th Circuits concerns surrounding personnel and training.67

Holder v. Humanitarian Law Project (2010)

When the 2007 9th Circuit decision in Humanitarian Law Project v.
Mukasey held the post-USA PATRIOT Act and post-IRTPA definitions
of service, and training, as well as the language other
specialized knowledge used to partially define expert advice or
assistance, unconstitutionally vague, the Supreme Court granted
certiorari to address what had become a cyclical battle between
government defended legislative definitions of material support
and HLP suits resulting in limited injunctions.68

The case of

Holder v. Humanitarian Law Project eviscerated the capacity of

65
66
67
68

Id. at 1190-92.
Id.
Id.; Humanitarian Law Project v. Reno, 205 F.3d 1130; IRTPA.
Humanitarian Law Project v. Mukasey, 552 F.3d 916 (9th Cir. 2007).

21

the HLP, or any political advocate or humanitarian organization,

to engage FTOs 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 9th Circuit
and the District Courts.69
The 9th Circuit in Humanitarian Law Project v. Mukasey
reiterated the reasoning of previous HLP cases finding statutory
responses to vagueness continuingly unsatisfactory.70

SCOTUS,

seemingly exhausted by the 9th Circuit and the HLPs haranguing

of the Material Support Statutes, which had become important
anti-terror prosecution tools, reversed the 9th Circuit and
rendered impotent the vagueness arguments that had protected the
constructive efforts of the HLP for over a decade.71
Specifically, Chief Justice Roberts opinion in Holder held
consistent with past opinions in the HLP line of cases on the
points that the HLPs First Amendment rights were not
unconstitutionally infringed upon, and that the authority of the
Secretary of State under 8 U.S.C. 1189 and the Material Support
Statutes did not constitute a violation of the right to free
association.72

Interestingly, the Court held that the previously

employed OBrien standard of intermediate scrutiny was not

appropriate and therefore employed a heightened form;
69
70
71
72

Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010).

Humanitarian Law Project v. Mukasey.
Holder v. Humanitarian Law Project.
Id.

22

nonetheless, the court did not employ strict scrutiny, and did
not take 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 Nations.73
This point of concession is what most fuelled the dissent and
will serve as a pertinent building block for challenges to the
constitutionality and wisdom of material support jurisprudence.
The key holding however, which departed from the HLP line
of cases, was that the Material Support Statutes are not
unconstitutionally vague as applied to HLP.74

The Court relied

on a logic that training, expert advice or assistance,

service, and personnel are quite different from the sorts
of terms, like annoying and indecent, that the Court has
struck down for requiring wholly subjective judgments without
statutory definitions, narrowing context, or settled legal
meanings.75

The Court supported this by observing Congress has

increased the clarity of 2339Bs terms by adding narrowing

definitions.76
Chief Justice Roberts stated the 9th Circuit had improperly
merged plaintiffs vagueness challenge with their First
Amendment claims, holding that portions of the material-support
statute were unconstitutionally vague because they applied to
73
74
75
76

Id.
Id.
Id.
Id.

at
at
at
at

2724.
2709.
2709; quoting, United States v. Williams, 128 S.Ct. 1830 (2008).
2709.

23

protected speech regardless of whether those applications were

clear.77

In fact the 9th Circuit had concluded vagueness because

the statute could have reasonably been construed as barring

speech and advocacy that would be protected under the First
Amendment and that therefore the statute was not sufficiently
clear because it was reasonably understood to illegalize
behaviors that it did not have the constitutional authority to
proscribe.78

It is interesting that the only citation put forth

on this point by Chief Justice Roberts is to the 9th Circuits

considerations in Humanitarian Law Project v. Mukasey itself.
The opinion of the majority on this matter is essentially
personal argument, not firm application of stare decisis.
Additionally, in constructing the Courts model of analysis
for vagueness, Chief Justice Roberts put forth the general rule
as expressed in Hoffman Estates v. Flipside, before weakening the
vigorous tone of respect for free speech and associational rights
commanded by that case by pointing to United States 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
democratize terrorist organizations, a decision that

77 Id. at 2719.
78 Id. at 2719; Humanitarian Law Project v. Mukasey, 552 F.3d 916.
24

inappropriately affected the tone of the Courts analysis in this

case.79
Having integrated the Williams standard and dismantled the 9th
Circuits reasoning on vagueness, the Court then made mincemeat
of the plaintiffs arguments by citing heavily to the definition
sections of 2339B(a)(1), (g)(4); as well as, 2339A(b)(1), (b)
(2), and (b)(3) to show that the proscriptions were not against
Individuals who act entirely independently of the foreign
terrorist organization[,] and that context confirms . . .
ordinary meaning[,] which any reasonable person could
comprehend.80

Stripped of the argument that the statutes

purported to proscribe protected behavior, the Court directly

endorsed the language of the subsections defining material
support and under a heightened level of scrutiny found no free
speech or associational violations.81

In doing so the court made

law of the bar to engaging with an FTO unless that engagement was
a mere impartation of general knowledge.82

Under Holder v.

Humanitarian Law Project the HLP is free only to operate as a

non-instructive associate with the PKK and nothing more unless
79 Holder v. Humanitarian Law Project at 2718-19; United States v. Williams,
128 S.Ct. 1830; Hoffman Estates v. Flipside, Hoffman Estates, Inc., 102 S.Ct.
1186 (1982).
Hoffman Estates Rule at 1186: If a law interferes with the right of free
speech or of association, a more stringent vagueness test should apply.
Williams Rule at 1830: perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity.

80 Holder v. Humanitarian Law Project, at 2721.

81 Id.
82 Id.
25

the support is completely independent.83

This is a regime that

in practice renders the application of the term support rather

tenuous because no real support can occur without
coordination.84
Notwithstanding the shattering effect of the majority
opinion in Holder v. Humanitarian Law Project, there was a silver
lining:

In dissent Justice Breyer, joined by Justices Ginsburg

and Sotomayor, abandoned the tactical approach of arguing

vagueness, and facially charged the Material Support Statutes
with failing to demonstrate a compelling governmental interest in
prohibiting coordinated teaching and advocacy in furtherance of
an FTOs lawful political objectives.
Justice Breyer, though in agreement with the majority on the
issue of vagueness, opined that he cannot agree with the Courts
conclusion that the Constitution permits the Government to
prosecute the plaintiffs criminally for engaging in coordinated
teaching and advocacy furthering the designated organizations
lawful political objectives.85
Firstly, the dissent would apply strict scrutiny.86

Stating that

when a statute applies criminal penalties and at least arguably

does so on the basis of content-based distinctions . . . we would
83 Id.
84 Id.
85 Holder v. Humanitarian Law Project, 130 S.Ct. 2705, 2731 (Breyer, J.,
dissenting).
86 Id. at 2734.

26

scrutinize the statute and justifications strictly to

determine whether the prohibition is justified by a compelling
need that cannot be less restrictively accommodated.87

Citing

heavily to support its disposition, the dissent proffers ad

arguendo that even if strict scrutiny is inappropriate, the Court
should measure the validity of the means adopted by Congress
against both the goal it has sought to achieve and the specific
prohibitions of the First Amendment.88

The argument of the

dissent is weighty because of the intersection between the First

Amendments purpose of assur[ing] unfettered interchange of
ideas for the bringing about of political and social changes
desired by the people, and the fact that the HLP is exclusively
comprised of American citizens who as a portion of their proposed
material support wish to address Congress on behalf of the PKK.89
The dissent takes further issue with the legal oddity of a
categorical bar to coordination with an FTO when, under
Brandenburg v. Ohio, the First Amendment protects advocacy even
of unlawful action so long as that advocacy is not directed to
inciting or producing imminent lawless action and . . . likely
to incite or produce such action[,] because [t]he plaintiffs do
87 Id. at 2734; citing, Houston v. Hill, 482 U.S. 451, 459 (1987); Ashcroft

v. American Civil Liberties Union, 535 U.S. 564, 573 (2002); Simon &
Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 118
(1991); Consolidated Edison Co. of N.Y. v. Public Serv. Commn of N.Y., 447
U.S. 530, 540 (1980); First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786
(1978).
88 Id. at 2734; quoting, United States v. Robel, 389 U.S. 258, 264 (1967).
89 Id. at 2732; quoting, Roth v. United States, 354 U.S. 476, 484 (1957).

27

not propose to solicit a crime[,] and the supposed linkage

between HLP support, and the bolstering of terrorist activities
is a weak, if not utterly groundless indictment.90
The weakness of the supposed link between HLPs proposed support
and terrorism based solely on a state of coordination is evident
on the issue of legitimating FTOs.

The majority argues that

HLPs proposed support would legitimize the PKK; however, the

majority would permit membership in the FTO, peaceful interaction
with the PKK, and independent advocacy, all of which could
legitimize the PKK, which renders the argument unconvincing as
a categorical bar to coordination.91

Furthermore, the majoritys

opinion that HLPs support could lead to the PKK 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 HLP wishes to train the PKK to pursue,
which would seek recognition under the Geneva Conventions, not
money.92
Most challenging to the majority is that the material support
proposed by the HLP is not fungible, and therefore not the sort
of support against which the Material Support Statutes were

90 Id. at 2733; quoting, Brandenburg v. Ohio, 395 U.S. 444, 447 (1969); also
see, Scales v. United States, 367 U.S. 203, 229 (1961) (association with a
group criminal group does not necessarily forsake their First Amendment
associational rights).
91 Id. at 2736.
92 Id. at 2739.

28

originally purposed.93

The legal recourse that HLP wishes to

train the PKK in is not the sort that garners monetary

settlements.94

Advocacy in the U.S. Congress to more

constructively engage the PKK will not afford the PKK resources
that could be appropriated to perpetrating terrorism unless the
United States Congress elected to furnish precisely the sort of
material support that the statutes rightly prohibit, such as
money and weapons.95
Finally, the dissent observes that despite the majoritys
purported reliance on Congress informed judgment, there is no
evidence that Congress has made such a judgment regarding the
specific activities at issue in these cases.96

There are simply

not Congressional findings that the proposed material support

that HLP wishes to offer the PKK would aid or abet, or in any way
contribute to terrorism.

No such finding was required of the

Secretary of State in the classification of the PKK as an FTO,

nor did the Court make an evidenced finding.

The Courts

disposition in Holder is a construct of the majoritys

speculation.97
The dissent concluded its argument by pointing to the Material
Support Statutes themselves:
93
94
95
96
97

2339B(i) states that [n]othing in

Id.
Id.
Id.
Id. at 2739.
Id.

29

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.98

Definitively stated, the

dissent, which delivered its vehement opinion aloud to the Court,

instructed there is a serious doubt indeed, a grave doubt
about the constitutionality of the statute insofar as it is
read to criminalize the activities before us.99

CHALLENGES TO THE MATERIAL SUPPORT STATUTES AND A PLEA FOR

LEGISLATIVE ACTION:
The law should not impede humanitarian organizations and
individuals offering constructive, non-fungible material support
to FTOs when that material support promotes non-violence,
humanitarian objectives, democracy training, investigation and
reporting with the purpose of advocacy, legal advocacy on behalf
of FTOs such as petitioning the U.N. or filing amicus briefs
because such an impediment works an insidious effect on First
Amendment rights and contradicts astute developments in the
foreign policy approach of the United States under Barack Obama.
The Material Support Statutes do not allow any serious
engagement with FTOs, even the seemingly humane exceptions under
2339A(b)(1) are generally illusory because the provisioning of
raw medicine to people, often bled white by scarcity and
98 Id. at 2742; 18 U.S.C. 2339B(i).
99 Id. at 2742.
30

suffocated by war, has little consequence without the training

and equipment for serious action that American doctors and NGOs
could provide.100
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 FTO 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.101

Furthermore, the Chief Justices concerns

over legitimation in Holder would also be relevant.102

Compounding the impenetrable nature of the Material Support
Statutes is the terrorism crisis ripeness for being positively
affected by constructive material support.

Terrorist

organizations 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 organizations in the United

100 18 U.S.C. 2339A(b)(1).
101 18 U.S.C. 2339A(b)(1), (b)(3).
102 Holder v. Humanitarian Law Project, 130 S.Ct. 2705.
31

States to empower such individuals and their organizations with

peaceful, democratic skills sufficient to mount effective
recourse is to forsake an opportunity to cultivate a sense of
more enlightened fulfillment in these individuals and push them
away from violence and nurture human empathy.

Quite 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 Material Support Statutes to allow for
material support of FTOs can significantly undermine terrorism
when there appears to be popular legitimacy to the goals,
although not the methods, of the designated FTO, which creates a
very difficult setting for those seeking to erode terrorism.103
The authors given example of this principle is that while
opposition to the methodology of the IRA was prevalent, support
for the political objectives of the organization also was;
therefore, it is in the interests of counterterrorist agendas to
provide such FTOs with alternative non-violent avenues to pursue
their goals, because the political circumstances will often
nourish the FTO with support and membership if governmental
opposition to it simply closes doors.104

It is much easier to

affect an FTO than an entire supportive population.

The history

of the IRA feeds another observation because that organization

103 1 p.287
104 1 p.287
32

and its ideological progenitors thrived for over a century

largely because of the vicious repression of Fenian politics,
working a formula of cause and effect very similar to that
currently exasperating tension between the PKK and Turkey.

This

problem could be greatly ameliorated if the international legal

community were to be effectively engaged by certain FTOs like the
PKK because it would incentivize both FTOs and states to engage
in more civil means of politicking.105

Amending the Statute

The decision in Holder v. Humanitarian Law Project granted
broad authority to federal prosecutors that a Republican Congress
will not revoke.106

The Material Support Statutes are in many

ways a legitimate tool.

Yet they are also an insidious set of

rules that impede humanitarian aid and preclude a means of

pacifying and democratizing FTOs that would cost the government
nothing.

The concern of former Assistant Attorney General Viet

Dinh echoed by Robert M. Chesney of Wake Forest University School

of Law that we can all agree that there are certain core
activities that constitute material support for terrorists, which
should be prohibited, and others which would not be prohibited,
[t]he trick . . . is to ensure that Congress does not throw out
the baby with the bath water if and when it undertakes to revise
105 1
106 Holder v. Humanitarian Law Project, 130 S.Ct. 2705.
33

the statute, is wise.107

For these reasons an arthroscopic

approach to amending the Material Support Statutes would likely

prove the most expedient and effective approach to addressing the
concerns of this paper.
For these reasons the proposal of this paper is to
significantly vivify 2339B(j).108

This section grants the

Secretary of State the authority to approve individuals or

organizations seeking to provide material support that is defined
as personnel, training, or expert advice or assistance.109
The approval requires the concurrence of the Attorney General.110
Additionally, the Secretary of State may not approve the
provision of any material support that may be used to carry out
terrorist activity (as defined in section 212(a)(3)(B)(iii) of
the Immigration and Nationality Act) (INA).111
Firstly, Congress should remove the concurrence requirement
of the Attorney General because the requirement is dissuasive to
humanitarian organizations and an unneeded bureaucratic
barrier.112

Secondly, Congress should make the decisions of the

Secretary of State appealable and empower an administrative board

or court to review decisions under a set of rules that prohibit
107Robert M. Chesney, The Sleeper Scenario: Terrorism-Support Laws and the
Demands of Prevention, Harvard Journal on Legislation Vol. 42 (December 2005),
available at http://works.bepress.com/robert_chesney/5
108 18 U.S.C. 2339B(j).
109 18 U.S.C. 2339B(j).
110 18 U.S.C. 2339B(j).
111 Immigration and Nationality Act, 8 U.S.C. 1182 212(a)(3)(B)(iii) (2015).
112 18 U.S.C. 2339B(j).

34

the denial of petitioners seeking to provide personnel,

training, or expert advice or assistance when such material
support constitutes protected expression or speech under the
First Amendment unless the Secretary of State can meet a standard
of strict scrutiny.113

These two simple steps will allow the

swift and direct application of the Material 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 NGOs who might otherwise serve a highly valuable role in
defeating the scourge of terrorism.

CONCLUSION:
Broadening of the Material 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 FTOs,
terrorism, and terrorist activities and First Amendment rights.
The proposed amendment will further empower constructive material
support that could work 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

113 18 U.S.C. 2339A(b)(1), (b)(2), (b)(3).

35

leadership internationally and provide a powerful new tool for

dealing with the national security threats of terrorism while
also unburdening the Material Support Statutes of impedimentary
and highly litigious infringements on the rights of American
citizens and allowing for their smooth operation when
appropriate.

36