Tuesday, December 02, 2008

Material Support: From Mumbai to Hamas by Michael Kraft

Well-planned deadly terrorist attacks such as the one in Mumbai last week against targets scouted out in advance are not conducted on the spur of the moment at a cost of mere pennies. The large amounts of ammunition and the advance planning by the terrorists who attacked 10 targets within a short time period is a reminder that terrorist attacks often need funding and other material support for their deadly activities.

Too often, though, as seen in the recent trial of the Holy Land Foundation for providing support to Hamas, lawyers try to downplay or even attack laws designed to curb the backing provided by those supporters who may not actually pull the trigger but provide the funds, weapons or other essentials for conducting a major attack.

It may seem a long way from Mumbai where terrorists killed at least 173 persons including six Americans and 13 other foreigners, to the Dallas, Texas trial where on Nov. 24, the Holy Land Foundation and five former leaders were found guilty of channeling $12.4 million to Hamas-affiliated committees and groups since 1995. That January, an executive order made it illegal to provide material support to a dozen foreign terrorist organizations including Hamas. But although there is no known link between Mumbia and Hamas, there is a common threat—material support they receive from supporters.

President Clinton’s January, 1995 executive order designed to curb money flows to 12 groups (10 Arab and two Jewish) that threatened the use of violence against the Middle East process was followed up by more detailed legislation that Congress eventually enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. (Public Law No. 104-132, 110 Stat.)

A material support provision, 18 U.S.C. 2339B, makes it a criminal offense for American citizens or residents to knowingly provide funds or other forms of material support that the Secretary of State, in consultation with the Attorney General and Secretary of Treasury, designated as a foreign terrorist organization. The legislation covers such forms of support as funding, weapons, and training as well as the provision of financial services and has been used in dozens of cases.

The 44 designated groups include the Lashkar-e Tayyiba (LeT) (Army of the Righteous). Some Indian and other intelligence specialists believe the group was behind the complex attacks on two major hotels, the railway station and popular café where Indians and foreigners were mowed down, as well as the Jewish center, where a young rabbi and his wife were among those murdered. In all six Jews were killed. "While all the information is not in yet, it does appear at this point that the attackers had connections to Lashkar-e-Taiba," a U.S. counterterrorism official was quoted as saying today by Reuters.

While much of the support from LET appears to come from within Pakistan, it also reportedly raises funds from Pakistanis living in the United Kingdom and Europe even though it is also classified as a terrorist group by the U.K., the European Union and Australia.

Hamas receives funding from Iran and also has raised funds in the United States and other countries through so-called “charities.” It was after a lengthy second trial that the Holy Land Foundation was found guilty of 108 counts, including money laundering as well as providing material support for a designated terrorist group, Hamas. The trial was well covered by my colleagues in previous postings on this blog including one just filed by Matt Levitt.

The issue of material support is important and deserves to be addressed further in view of the context of the Mumbai attack in which terrorists also received a considerable amount of support for the weapons and advanced planning, including infiltration and scouting of the hotels and the Chabad Jewish Center which visitors have said is normally hard to find on narrow side street. According to one report attributed to the surviving terrorist, the site was scouted out a year in advance.

Supporters of the Holy Land Foundation and Hamas often contend that the funding goes for schools and clinics and other charitable activities, even though at least 500 persons have been killed in suicide and other attacks by Hamas which opposes Israeli’s right to exist and has thwarted the Palestinian Authority’s officially stated efforts to reach a peaceful settlement with Israel.

A recent Congressional Quarterly article quoted Hina Shamsi, an attorney for the American Civil Liberties Union’s National Security Project, as saying that federal law doesn’t require the purpose of the material support be illegal, thus it criminalizes guilt by association and in some cases the government’s application of the law violates the free-speech and due-process rights of the Shamsi was quoted as saying that the law could be improved by including a requirement that it was the specific intent of the accused to provide support for terrorism.

Congress, however, made its intent clear in the “FINDINGS and PURPOSE” Sec. 301 (7) of the Antiterrorism and Effective Penalty Act of 1996. This section stated that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct.” In effect, Congress was stating that money is fungible and even if the money is intended for legitimate charitable purposes, it frees up funds that could be used to support terrorist activities. Some terrorist organizations such as HAMAS, and Hezbollah and others in Egypt use funds for both weapons schools and medical clinics that attract supporters and potential terrorist operatives.

Actually, when Justice and State Department officials (I was one of them) drafted the original 1996 administration bill they included a licensing provision allowing donors to contribute to specific charitable activities such as medical supplies and other humanitarian assistance provided that the organizations provided documentation that the contribution actually was being used for those purposes.

This attempt to accommodate humanitarian concerns ultimately was dropped however during discussions between State and Justice Department officials and the Senate Judiciary Committee staff. A key staffer who worked for Republican Senator Spencer Abraham of Michigan, a state with a large Arab-American population rejected the provision. She said that the recipient “charity” organizations would not stand for opening their books to inspection. Thus the proposed exceptions for humanitarian assistance went by the wayside because of opposition from a Senate staffer who apparently was sympathetic to those who wanted to contribute to Hamas.

In short, those who are inclined to go along with the arguments that it is ok to provide funding or other support for terrorist groups, even if they do not actually throw the grenades or pull the trigger need look no further than Mumbai for a reminder of the deadly consequences.

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