By Sam Adelsberg, Freya Pitts & Sirine Shebaya* –
4 Harv. Nat’l Sec. J. 282 (2013)
Nearly fifteen years after the “material support” statute was first enacted, the Supreme Court in Holder v. Humanitarian Law Project affirmed the constitutionality of this broad grant of authority to the government to prosecute individuals providing material support—including humanitarian aid—to foreign terrorist organizations. This decision has led many charitable organizations to raise concerns about the reach of the statute and the chilling effect it has on their activities in the parts of the world most desperately in need of aid.
For the most part, the government has exercised its broad grant of discretion under the “material support” statute to prosecute those alleged to have committed serious terrorism-related offenses. Nonetheless, within both the humanitarian aid community and Muslim charitable donor community, there is still a palpable fear of prosecution of individuals or organizations that exclusively provide humanitarian aid. It has led some organizations to reconsider providing humanitarian aid, particularly in war-torn areas where terrorist organizations are active—precisely where aid is often most needed. Reducing aid in these areas may, in turn, undermine the very counterterrorism policies the statute is meant to advance by discouraging aid in high-risk areas.
This Article recommends new substantive prosecutorial guidelines to formalize safe harbors for aid that meets specific criteria based on: (1) the types of aid provided, (2) the recipient organizations, and (3) the presence or absence of a specific intent by the donor. It then offers four procedural approaches to instituting these substantive guidelines that may be used as alternatives or in combination. First, and likely to be most effective, is a formal amendment to the statute. In addition, the government could publish an advisory memorandum or statement, amend Department of Justice internal guidelines, and engage in targeted community outreach. Each of these approaches has been used in the past to address similar kinds of challenges. Together these three recommendations offer the best available options, barring statutory amendment, for addressing the chilling effect of the material support statute on humanitarian aid.
*Samuel Adelsberg and Freya Pitts are J.D. Candidates at Yale Law School. Sirine Shebaya is a member of the Yale Law School class of 2012.