Among the provisions in the JUSTICE Act is an amendment to 18 U.S.C. § 2339B, commonly referred to as the “material support” statute. If the amendment suggested by Senator Feingold is approved, the “new” statute will read in part:
“Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, knowing or intending that the material support or resources will be used in carrying out terrorist activity…[shall violate the statute].” [amendment text italicized]
Under current law, federal prosecutors must show that an individual provided financial, logistical, or other resources to a terrorist organization, whether or not they intended the donation to support violence. In announcing this change, Senator Feingold explained that the revision would require “that a person must know or intend that support provided will be used for terrorist activity.” In reality, this amendment would eviscerate the statute—stripping the government of a valuable tool in the fight against the support structure of international terrorist organizations. The fact is that the italicized portion above is a tremendous departure from Congressional intent, long standing judicial precedent, and common sense.
Supporters of this type of amendment often argue that terrorist groups are also engaged in charitable, humanitarian, educational, and political activities, and that donors should be able to promote these lawful activities. Each time this argument has been put forth in a federal court, it has been quickly dismissed. As the Court of Appeals for the Ninth Circuit explained in Humanitarian Law Project v. Reno:
“all material support given to such organizations aids their unlawful goals. Money is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts.”
The argument that there are multiple “wings” in terrorist organizations has been repeatedly rejected. When it was enacted, the material support statute was intended to make these groups radioactive—in the words of Andrew McCarthy—“an entity that merits only our contempt, not our contributions.” Senator Feingold and any other members who would support the proposed amendment to Section 2339B must remember that any support given to a terrorist organization furthers their violent acts. Requiring federal prosecutors to show that a defendant specifically intended to support acts of terrorism would make it almost impossible to shut down networks of individuals who are complicit in these acts of violence.
See full text of bill here.