The Evolving Nature of Material Support

It has been over 25 years since the "material support" statutes, 18 U.S.C. § 2339A and 18 U.S.C. § 2339B, have been on the books and have since been central to the US Department of Justice’s efforts to prosecute terrorists. Moreover, it has been over two decades since the FISA wall separating intelligence and law enforcement came down. What does "material support" encompass? How have "material support" prosecutions evolved during this time? And are these measures up to date with current threats?

To discuss these dynamics, the Program on Extremism at The George Washington University hosted a high-profile online discussion on Tuesday April 30th, at 10 am ET. After a short introduction by PoE Director Lorenzo Vidino, the event was moderated by PoE Senior Research Fellow and recently retired US Department of Justice prosecutor Jeff Breinholt. It featured the insights from:

• Zainab Ahmad, Partner at Gibson, Dunn & Crutcher and Former Terrorism Prosecutor, Eastern District of New York
• Michael Mullaney, Chief, Counterterrorism Section, National Security Division, DoJ (ret.)
• Steven Ward, Counterterrorism Section, National Security Division, DoJ (ret.)

On April 30th, the Program on Extremism (PoE) at The George Washington University hosted an online discussion addressing the evolving nature of material support prosecutions over the last quarter century. This event was conducted by PoE Senior Research Fellow, and recently retired US Department of Justice prosecutor, Jeff Breinholt, who moderated a discussion among Michael Mullaney, Zainab Ahmad, and Steven Ward. Michael Mullaney is the retired Chief of the Counterterrorism Section in the National Security Division at the US Department of Justice and Former Assistant US Attorney in Miami. Zainab Ahmad is a Partner at Gibson, Dunn & Crutcher and Former Terrorism Prosecutor in the Eastern District of New York. Steven Ward is retired from the Counterterrorism Section in the National Security Division at the US Department of Justice and is a recipient of the John Marshall Award for his contributions in convicting a major tax protester in San Francisco. The following is a summary of their remarks:

Jeff Breinholt

On April 19th, 1996, one year after the Oklahoma City bombing, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. This act directed the Secretary of State to designate a series of subnational groups considered as foreign terrorist organizations (FTOs) by the statute. It created 18 U.S.C. § 2339B, which criminalizes the provision of material support to a designated foreign terrorist organization.

On October 7th, 1997, Secretary of State, Madeleine Albright, designated a group of foreign terrorist organizations for the first time in US history. Disregarding domestic groups, the list began with 29 foreign terrorist organizations, and has increased to 63. Initial prosecutions of the AEDPA were mainly fundraisers for FTOs residing in the US. However, prosecutions were unable to progress in constitutional litigation because aggrieved defendants negotiated over definitions they claimed were lacking within the statute. Litigation of aggrieved defendants culminated in 2010, further establishing the FTO designation process and 18 U.S.C. § 2339B as constitutional.

The attacks on 9/11 aggravated the need for antiterrorism reform. On October 26th, 2001, the Patriot Act was established allowing prosecutors to have case decisions informed by classified US intelligence. The Patriot Act recognizes prosecutor decisions as important and the application of classified information as necessary in making a comprehensive decision. The counterterrorism sector transformed into an intel consumer shop with the recruitment of prosecutors into the headquarters of the US government.

With the growth of Jihadist cases around the country and the rise of ISIS, the US government had international obligations to prevent US nationals from traveling to Syria to fight. Although convictions for 18 U.S.C. § 2339B are not coextensive with terrorism enhancements, there is heavy prosecution of the statute. Terrorism enhancements are not for all people convicted of material support. However, 18 U.S.C. § 2339B is used in virtually every terrorist case encountered thus far.

Michael Mullaney

When 9/11 hit, US attorneys were unequipped with skills pertaining to emergency management. Although 15 out of 19 of the hijackers spent time in South Florida, and Miami is home to the 3rd largest US attorney's office in the country, only one assistant attorney had national security expertise at the time. There was a communication blockage, otherwise known as the “wall”, between intelligence and law enforcement agencies regarding the use of intel in the courts. Knocking this “wall” down brought together separate entities and made them one going forward.

The increase of communications between intelligence and law enforcement agencies made people from the intelligence community aware of the legal options for their investigations, whilst simultaneously making law enforcement realize that there is existing information they did not possess access to. The “wall” coming down meant that prosecutors have a greater responsibility under the Brady rule (named after Brady v. Maryland, which requires prosecutors to disclose material and exculpatory information in the government’s possession to the defense). These responsibilities do not just mean viewing intelligence information, but are requirements to utilize this information in cases. Furthermore, there were various challenges on both sides of prosecutors and the intelligence community in breaking down the “wall”.

Breaking down the “wall” enabled the process of learning how to deal with intelligence agencies as prosecutors, and dealing with prosecutors as intelligence agencies. This process involves convincing intelligence agencies that prosecutors can be trusted with security clearances and learn the ins and outs of intelligence. Prosecutors need to listen to intelligence agencies on what they feel is too sensitive to be used in courts, while negotiating what they feel is necessary for prosecution.

Even though the “wall” came down, from 2003 to about 2006/2007 the US was on a war footing seeking military action to take out its enemies. Gradually shifting to a prosecutorial footing, conflicts with governments abroad arose due to different perspectives of prosecution being inapplicable to lifestyles around the world. There are tons of political implications including the legality of the death penalty in the US and the European Union opposing it. But in today’s evolving threat environment, prosecutors need to understand what is evidence, get along with the agency they are working with, and acknowledge limitations involved in working between two entities.

The increasing number of material support cases display its importance in counterterrorism legislation. Granted access to intelligence sources cannot be understated. The aforementioned statutes allowed prosecutors to charge people who are planning to travel to join a designated FTO or plotting an inspired attack in the homeland. However, 18 U.S.C. § 2339B is only applicable to foreign organizations due to the potential violations of the First Amendment. Since 18 U.S.C. § 2339B is not used domestically, 18 U.S.C. § 2339A could if other predicate offenses were added to the statute such as civil disorder and hate crimes. Furthermore, improving 18 U.S.C. § 2339A to address domestic violence extremism since it is dependent on the enumerated offenses in 18 U.S.C. § 2339A.

Zainab Ahmad

Since 9/11, the US continues to spend an abundance of resources providing technical assistance to other countries in the effort of establishing a rule of law based on counterterrorism. However, the history of 9/11 is less about hunting for criminal defendants, and more about incapacitating individuals. The criminal justice system rose to the task of using extraterritorial prosecutions and material support as tools to incapacitate or hold individuals accountable of their potential to commit violent attacks.

Completed acts of violence already possessed extraterritorial jurisdiction since it was simple to bring into court. In 2007, 18 U.S.C. § 2339B was significant in prosecuting extraterritorial terrorism cases that did not include completed acts of violence against Americans or the destruction of American property. In the counterterrorism arsenal, the key part of material support is holding someone accountable, or incapacitating them, from the potential of committing significant acts of violence against the US, or its citizens and property. The statute prosecutes individuals on the pathway to carry out acts of violence when it cannot be proven if the intended victims were American or not.

The use of 18 U.S.C. § 2339B captures more violent acts, or intentions, than imaginable. The statute used to be focused on white-collar crimes, but the increasing number of prosecutions with terrorist enhancements enable the need to distinguish supporting a violent terrorist group from white-collar support. Since violent conspiracies meant to harm American citizens did not have extraterritorial jurisdictions, conspiracies combined into the material support statute for terrorism cases. Establishing violent conspiracies in prosecutable cases holds dangerous individuals accountable for a potential attack. For example, the Jihadist, English-language materials encouraging recruitment for US attacks by Al-Qaeda in the Arabian Peninsula (AQAP), is evidence for prosecution under 18 U.S.C. § 2339B.

The material support statute, in combination with the “wall” coming down, is essential for interagency communication. Operation High Rise in Grand Central Station was stopped by British intelligence due to locating an individual conspiring to conduct the attack. Operation High Rise, and other attacks, would have gone undetected without the access of intel. From an extraterritorial standpoint, material support helps the US bring cases to Article III courts which would not be brought up previously. Terrorist groups and cells have safe havens that the criminal justice system lacks the resources to combat. Therefore, making material support crucial and the only option to take someone who is plotting an attack off the grid.

Steven Ward

The elimination of information barriers between intelligence agencies and the legal communities, otherwise known as the falling of the “wall”, meant the intelligence community could no longer withhold excess information. With this newfound privilege in the law enforcement sector, stakeholders need to manage this “be careful what you wish for” mentality (Ward, 2024). Law enforcement and prosecutors now having access to all this intelligence information increases the discovery burden. Intelligence and law enforcement communities need to develop discovery plans to ensure anticipating prosecutors in the field will not implicate any information that cannot be safeguarded through protective orders.

The FBI material support investigative cadre presents information based on current threats. Operation Green Arrow pursued grassroots, fundraising cell among Somali diaspora for Al Shabaab. As defendants were reliant on telephone communications, numerous agencies had to moderate communications. The investigative cadre discovered its targets had direct access to those representing the face of Al Shabaab for the West. Although financial prosecutions seem impactful in this case, the counterterrorism aspect of material support ensured the defendants were properly prosecuted in their aid of an FTO.

Although material support cases are document intensive, the communications of the defendant from intelligence sources are crucial in imposing a fair judgment. Material support statutes and terrorism enhancements handle an important role. In one case, an individual charged with material support could not be located in the original days of the investigation. After being vigorously litigated, the prosecution found the sentencing enhancement in 18 U.S.C. § 2339B applied to the defendants plea of guilty because of conspiracy to commit material support. Without material support, numerous perpetrators would go undetected because they did not completely carry out a violent act. To prevent an attack, material support statutes are essential in prosecuting potential actors.