Legal Commentary

Or pay taxes that end up in Hamas' pocket? Or send a remittance check to a relative in the Gaza strip? SCOTUS's decision in Holder v. Humanitarian Law Project suggests as much. These implications suggest that the real story about the "material support" statute is not its effect on freedom of speech but its extraordinary grant of prosecutorial discretion: By criminalizing all activity that simply has the foreseeable effect of aiding a foreign terrorust organization, the statute absurdly makes the entire population of Gaza and the entire European Union into criminals under U.S. law.

Of course, the European Campaign to End the Siege on Gaza ("ECESG") does not, in theory, coordinate its flotillas to break the Gaza siege with any designated "foreign terrorist organization" ("FTO") like Hamas. But the "material support" statute requires no such coordination or control by the FTO unless the material support in question takes the form of providing "personnel" to an FTO: Section 2339B(h) provides that ?[n]o person may be prosecuted under [§2339B] in connection with the term ?personnel? unless that person has knowingly provided ... one or more individuals ... to work under that terrorist organization?s direction or control," which the statute defines to exclude "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives" (emphasis added). Chief Justice Roberts relied heavily on this language in declaring that "Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns" (slip opinion at page 30) by "avoid[ing] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups" (id. at page 31). By fairly obvious expressio unius reasoning, the "coordination with/ controlled by" limit is applicable only when the "material support" law is used to target the lending of personnel to an FTO for (among other things) speech-based activities -- picketing, counseling a client, etc. For contributions other than personnel -- say, medical equipment, remittance checks, construction materials, food, etc -- there is no "coordination with/ controlled" by requirement for liability under the statute. Providing a bowl of pasta to a private person that one knows to be a member of an FTO constitutes "material support" to an FTO even if one simply is trying to save that FTO foot soldier from starvation and even if one deplores the FTO's goals, just so long as the government can show that one knew or should have known that the noodles would eventually advance the FTO's goals.

Thus, it is not even a slight stretch of statutory language for some enterprising U.S. Attorney to indict the government of the European Union for providing humanitarian aid to private Gazans. After all, if one helps out Gazans, one provides an indirect benefit to Hamas by saving them the trouble of providing such aid, thereby allowing Hamas to save their resources for rockets to Israel. Such indirect "material support" for Hamas' goals is surely foreseeable: The EU knew or should have known that Hamas' political existence is made easier by Care Packages for Hamas' constituents. That such a prosecution would be crazy as a matter of policy is legally irrelevant, given the sweeping and plain language of the statute.

We are, in sum, dependent entirely on federal prosecutors' assurances that they will exercise common sense in their assessments of proximate cause. The elimination of the traditional requirement of specific intent to aid a crime from the offense of abetting is the real threat to civil liberty posed by the "material support" law. We law profs ought to be publicizing this egregious mutilation of traditional criminal law categories and not hyper-ventilate about some free-speech bogeyman borne of the "cultural magnetism" exercised by the First Amendment (in Fred Schauer's memorable phrase) on the American imagination, a magnetism that leads us Americans to press the First Amendment's boundaries outwards while ignoring the real threat to our liberties that have nothing much to do with speech.