The Corner

Big Court Test of Material Support to Terrorism Laws

In 2004, in the case of Boim v. Holy Land Foundation, a federal court in Chicago found Hamas supporters liable to the tune of $156 million in damages in connection with the death of an American who was killed in a Hamas terror attack. Last December, the U.S. Court of Appeals for the Seventh Circuit overturned the verdict, reasoning that the supporters had not been proved to have contributed directly (or even indirectly) to the murder.

Now, the Seventh Circuit has reversed itself and granted rehearing en banc (i.e., before all judges of the Seventh Circuit, not just the three judges on the first panel) to consider the question whether a donor who contributes to an organization the donor knows to be a terrorist organization may properly be prosecuted for providing material support to terrorism absent proof that the donor intended to advance the violent component of the organization’s activities. The answer to that question has to be a resounding YES. If it is not, every person is a law unto himself and our laws barring material support to terrorist organizations have effectively been repealed.

The idea behind the material support laws is that once an organization has been branded a terrorist organization through the process Congress has provided for that determination, a person may not contribute anything of value to it. That’s because contributions to such an organization make it a more able, attractive organization, and consequently benefit all its operations — including the execution of terror attacks. It doesn’t matter whether one who contributes to Hamas hopes to help it build a hospital or learn how to use peaceful political processes to press its grievances; first, you have no control over how Hamas spends the money once it has the money; second, even if it really does spend the money on a hospital or improve its political apparatus, that improves its standing in the community, which helps it mightily to raise funds, build bombs, and recruit terrorists for its violent operations.

Defendants are more than adequately protected from wrongful conviction by a requirement that the government prove beyond a reasonable doubt that a contributor knew the organization was a terrorist organization. No one is convicted due to a mistaken understanding. Once you know it’s a terrorist organization, you don’t get to rationalize that you personally know better than Congress how best to reform a terrorist group. We have democratically decided as a society, through our lawmakers, that the best way to deal with terrorist groups is to starve them until they either die or convincingly renounce terrorism (and get themselves removed from the list of designated terrorist organizations). Individuals, however well intentioned they may be, should not get to second-guess that democratic determination by contributing to a terror group’s “political” or “social welfare” component in the vain hope of mending its ways (usually rationalized by the claim that such contributions are protected by First Amendment free-expression).

If the latter is permissible, then the material support laws are a dead letter. Those laws, it bears emphasizing, are the main legal tool on which we rely to prevent terrorist attacks from taking place as opposed to prosecuting after people have been killed.

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