Congress Must Not Authorize More Chilling of the First Amendment with Material Support Laws

We’ve made it clear that, while we’re not opposing it, USA Freedom just doesn’t go far enough for us to continue supporting it. We’ve noted some of our concerns—including the increase in the maximum sentence for material support for terrorism to 20 years. This provision, introduced at the behest of the intelligence community, deserves more attention.

In 2005, we called for the repeal of Section 805 of the Patriot Act, which broadened the crime of material support to any foreign organization the Secretary of State has designated as a “terrorist organization.” Here’s what we said about Section 805 of the Patriot Act then:

Section 805 makes it a crime to offer “expert advice and assistance” to any foreign organization that the Secretary of State has designated as “terrorist.” But . . . many of these “terrorist” organizations also advocate for, and provide humanitarian assistance to, their constituents. 

Under Section 805, we pointed out, even organizations that “engage in legitimate political advocacy or humanitarian work” can be designated terrorists:

PATRIOT makes it illegal to offer expert advice and assistance even for these legal, non-terrorist activities. A humanitarian social worker training Hamas members how to care for civilian children orphaned in the conflict between Israelis and Palestinians could be sent to prison. So could a lawyer teaching IRA members about international law. Section 805 even extends to people engaged in activities to discourage terrorism, such as those offering training in effective peace negotiations or how to petition the United Nations regarding human rights abuses.

Unfortunately, our fears about the chilling effects of Section 805 on political speech, humanitarian aid, and peaceful conflict resolution assistance turned out to be true.

In Holder v. Humanitarian Law Project, the Supreme Court upheld the material support statute. Plaintiffs in the case included the Humanitarian Law Project, which sought to “assist the [Kurdistan Workers’ Party] in methods for peacefully resolving its disputes with the Turkish government, and in carrying out human rights monitoring in Kurdish parts of Turkey. Other plaintiffs included a Tamil-American physician and several Tamil-American organizations in the United States that sought to support the lawful activities of the [Liberation Tigers of Tamil Eelam] in Sri Lanka.” None of the plaintiffs in the case were “terrorists”; they all were engaged in peaceful advocacy and humanitarian assistance. However, because the organizations they assisted had been designated as foreign terrorist organizations by the Secretary of State, the Supreme Court determined that even the plaintiffs’ peaceful contributions could fall within the statute.

That decision, signing off on the government’s broad interpretation of material support, allows the government to apply the statute to activities that would otherwise be protected under the First Amendment—and that could actually help prevent terrorism, instead of supporting it. And the way the government has used the material support statute since 2001 demonstrates exactly why the statute should be changed, not reinforced.

The material support laws have made it difficult for many Muslim-Americans to know where exactly they can make donations. This is a particularly big burden for Muslims, since zakat (essentially charitable giving) is one of the “five pillars” of Islam.

The laws have also been used to harass political activists—many of whom are associated with particularly unpopular causes. In 2010, the FBI raided the homes of eight antiwar and pro-Palestinian activists in Chicago and Minneapolis, “looking at activities connected to the material support of terrorism.” The raids were accompanied by grand jury subpoenas, at which activists refused to testify. No charges have ever been filed, but the investigation is still technically open.  

As Council on American-Islamic Relations points out:

[T]hose who value impartiality in the criminal justice system cannot in good conscience support legislation that increases maximum sentences that have been overly and wrongly applied by the FBI and DOJ in investigating, prosecuting, and incarcerating members of [the]Muslim community and other free speech activities. Increasing maximum sentences also has no place in federal surveillance reform; rather, the system should work towards reducing the maximum sentences and eliminating mandatory minimum sentences, which have a discriminatory impact. link added

While we understand the desire to punish true acts of terrorism, increasing penalties for material support will not accomplish that. What this really does is increase the heft of one of the many weapons the government has to chill First Amendment protected activities—including the free exercise of speech and religion. It must not be included in any reform legislation