December 14, 2004,
A serious national debate is underway about how much the Intelligence Reform Act, which passed in both houses of Congress last week, will actually improve the performance of the intelligence community. Lost amid the competing contentions, however, are some genuine improvements in the criminal laws that are essential to the domestic battle against terrorists.
Of these, none is more badly needed than the fix to shore up statutes that make it a crime to provide material support to terror organizations. By denying the necessary ingredients for attacks personnel, resources, and other assistance these laws enable the authorities to snuff out plots in their infancy: before they can grow into 9/11s. They have been the core of several of the Justice Department's successful post-9/11 prosecutions, and have played a critical part in keeping the nation safe from another domestic strike. Nonetheless, as related here nearly a year ago, a series of federal court decisions emanating from California undermined this essential enforcement tool.
The tribunals involved did this in two principal ways. First, homing in on statutory terms, they concluded that material support laws were plagued by serious constitutional problems. Specifically, they ruled that such terms as training, personnel, and expert advice or assistance varieties of support that the law barred giving to terror groups were too "vague" for persons of ordinary intelligence to grasp, and, thus, that making them the subject of a prohibition might somehow chill activity that was lawful under the First Amendment. Second, they held that material support laws might ensnare innocent dupes who had intended to contribute not to the violent activities of terror organizations but rather to, for example, charity or social welfare.
These rulings, and the plaintiff nongovernmental organizations that urged them, challenged the straightforward, un-nuanced theory of material support: viz., terrorism is a patent evil; an organization which engages in it as any part of its operations forfeits the right to any type of assistance; and willing contributors are to be condemned, no matter how overtly innocent their contributions may appear, because such contributions allow the organization to survive and continue to practice terrorism.
To maintain these fronts, of course, takes money and other assets. Most of these being fungible, a person who contributes to the "charity" cannot be assured that charity is where the contribution goes. Even if he could, the contribution would still free up for use in terrorism assets the organization would otherwise have to allocate to the maintenance of its "charity."
The California courts did not buy this common sense. Sure, the law prescribes an elaborate procedure by which the secretary of State, subject to congressional oversight, must make detailed findings before a terror group may be officially designated a "foreign terrorist organization." And yes, such organizations are also permitted to challenge the designation. But the courts nonetheless proved sympathetic to the contentions of "humanitarian" activists who abjuring any connection of the dots that would reveal the nexus between contributions and dead humans claimed the right to help terror groups (or, as they'd have it, "resistance" groups) with education, medical training, civilian infrastructure, and other high-minded assistance. Such terms as training, personnel, and expert advice or assistance, the courts reasoned, failed to put would be do-gooders on notice of exactly what kinds of help was prohibited.
Legislation in the new Intelligence Reform Act should put a stop to this frustration of a key counter-terror tool. It will make clear that contributing any kind of tangible or intangible property or service is verboten, and will clarify the definitions of the purportedly vague terms that have proved troublesome.
Moreover, to address the concern about avoiding prosecution of those who provide material support by accident or mistake, the amendments will instruct that only those who knowingly and intentionally contribute to terror groups are liable. This means the government will have to demonstrate either that the contributor knew about the secretary of State's designation of the organization as an FTO, or that the contributor was aware of the organization's terrorist activities even if unaware of the designation. Importantly though, once it is shown a contributor knew he was dealing with a terrorist organization, it will not be a defense to claim that he thought he was promoting the organization's socially beneficial components.
Essentially, the law turns FTOs into radioactive pariahs, which is the only effective way short of killing or capturing all their leaders and foot soldiers to make them abandon mass homicide as a method of pursuing their agendas.
On a separate track, the Justice Department continues to try get some of the earlier rulings reversed. But on a going-forward basis, whatever can be said about the intelligence parts of the Intelligence Reform Act, the new law will be a boon to law enforcement's mission to prevent terrorist attacks rather than simply prosecute them after people have been killed. That is an authentic humanitarian mission.
Andrew C. McCarthy, who led the 1995 terrorism prosecution against Sheik Omar Abdel Rahman and eleven others, is a senior fellow at the Foundation for the Defense of Democracies.