Immaterial and Unsupportable

On May 19, in one of the first anti-terrorism cases brought against U.S. citizens since September 11, Mukhtar al-Bakri, a 23-year-old Yemeni American from Lackawanna, N.Y., pleaded guilty to the charge of providing "material support" to al-Qaeda. Prior to 9-11, al-Bakri and five other young Yemeni Americans had traveled to an al-Qaeda camp in Afghanistan, where they received six weeks of training before deciding to return home. According to the defendants, they left the camp because they did not feel comfortable with al-Qaeda's militancy; one even faked an ankle injury to leave early. A post-9-11 Department of Justice investigation led authorities to the young men, who were quickly dubbed a sleeper cell and brought to trial. After a great deal of prosecutorial pressure, and against the advice of at least one of their lawyers, each of the defendants eventually pleaded guilty. Defense attorney Patrick J. Brown told The Washington Post, "We had to worry about the defendants being whisked out of the courtroom and declared enemy combatants if the case started going well for us." Al-Bakri's plea, the last of them, put the finishing touches on a case that the Justice Department touted as "a model in pursuing and prosecuting terrorism suspects, and in preventing terrorist acts here and abroad."

The case of the Lackawanna Six was indeed an important one, but not so much for the reasons the Justice Department asserts as because of the concerns about justice that it raises. The defense lawyers still maintain that their clients are innocent victims of overeager U.S. attorneys. During the initial bond hearings, even the magistrate, H. Kenneth Schroeder Jr., asked, "Is the government asking me to speculate some sort of potential act of violence or danger?" A post-plea bargain article in The Washington Post noted that "prosecutors never offered evidence that the Lackawanna defendants intended to commit an act of terrorism," and investigations by Mother Jones and Salon found no weapons cache, no orders and no plots. The government's main argument for calling the Lackawanna Six an "active cell" is that the young men did not voluntarily come forward after 9-11 to tell authorities about their trip.

Nonetheless, scared to risk a trial in today's climate, the Lackawannans plea-bargained. Under the law that makes it a crime to provide "material support for terrorist groups," it's not certain whether any more evidence would even have been necessary to convict them. What constitutes material support is so vaguely and broadly defined in this law that it risks criminalizing basic freedoms. For that matter, what count as terrorist groups are only those the Department of State, in a notoriously politicized process, designates as such.

Some of these concerns arose when the law was first written in 1996 as part of the Anti-terrorism and Effective Death Penalty Act. A few commentators did wonder what the new law added to the prosecutorial arsenal, as the government itself could not identify a single situation in which the statute would have helped stop terrorism. But the hysteria following the 1995 Oklahoma City bombing, and the memory of the World Trade Center bombing in 1993, meant that there was little rational debate.

Still, prior to 9-11, the government only prosecuted three cases, relegating the law to relative obscurity. Since the attacks, however, this number has jumped to around 30. (A precise figure is difficult to come by because the Justice Department claims it does not "keep lists.") And Justice Department testimony suggests the material-support law will become a mainstay of its domestic anti-terrorism efforts.

At first blush, that might seem to make perfect sense: Nobody should support terrorists, after all. The specific wording of the statute says that anyone who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so" will be fined, get up to 15 years in prison or, in certain circumstances, even face a life sentence. These days this all sounds like a reasonable and necessary part of preventing terrorism.

But as the law has come into use, so, too, have its problems come into focus. For instance, in the Lackawanna Six case, the defendants didn't provide anything beyond their own bodies. The government argued that this amounted to providing "personnel," one of the forms of material support mentioned in the law. At least one circuit court judge contends that this stretches the meaning of the statute beyond what Congress intended or the Constitution allows. But far from being troubled, Attorney General John Ashcroft has proposed amending the law to specify that a person's mere presence could constitute criminal material support.

More importantly, even though the prosecution could not provide any evidence that the Lackawannans intended to support a specific terrorist act, it didn't really need to. What counts as support is not aiding a terrorist act but a group. It has, in fact, always been illegal to support terrorist acts, but as such, it has also been necessary to prove that the defendant intended the support. By focusing on aiding a group rather than an act, the material-support law eliminates the requirement to prove criminal intent. All it really adds to existing law, then, is the possibility of prosecuting individuals who do not intend to support terrorism.

Focusing on groups rather than acts also eliminates the distinction between aiding legal and illegal activities. In the case of al-Qaeda this is a purely theoretical distinction: The organization has no meaningful legal activities that are anything but a front for terrorism. But al-Qaeda is not the norm for groups designated as terrorist. Most are hybrid organizations that engage in humanitarian as well as violent activities and have political ends beyond the mere spectacle of violence. Even Hamas, widely perceived as purely terrorist, allocates only about 5 percent of its budget for military purposes, according to the Israeli government's own estimates. The rest goes to administrative, humanitarian and social services. But the law now covers essentially all material donations, from money to weapons to medicine and blankets. So giving coloring books to Hamas for Palestinian children is the legal equivalent of giving AK-47s to al-Qaeda.

Defenders of the material-support law say that it is necessary to choke off the flow of resources to terrorist groups. Because money is fungible, even giving coloring books frees up extra cash for weapons. But experts disagree on how true this is as an empirical claim; and at the very least, critics say, the government should have to show in any given situation that that is really going on. Moreover, if it's the flow of money that the government is concerned about, there's little reason to define "material support" so broadly that it includes what the Lackawannans did.

By making no such distinctions, the material-support law undermines freedom of association and threatens to rehabilitate "guilt by association," the principle underpinning the old statutes that made membership in the Communist Party a crime. The Supreme Court eventually struck those down as unconstitutional -- because they failed to distinguish between support for the organization's legal and illegal aims. As some commentators have noted, the material-support law, although technically preserving the right to be a member of a group, criminalizes practically all forms of actual involvement in the group and thus reduces freedom of association to a mere formality.

It's conceivable that a less vaguely written law might avoid that extreme. But Ashcroft's efforts are, if anything, aimed in the opposite direction.

Vagueness is only half the problem. Equally troubling is the fact that the law is applied based on a somewhat arbitrary State Department blacklist that is compiled in secrecy and virtually impossible to challenge. Many groups on the list are secessionist or political organizations with little relation to al-Qaeda and with no direct plans against the United States. In the 1980s, Nelson Mandela's African National Congress was officially considered "terrorist," and many groups currently on the list are there as sops to U.S. allies. For instance, the East Turkestan Islamic Movement, a secessionist group in western China, was added to the list last September, in what many saw as a political favor to China. Similarly, the State Department in May added the Basque separatist group Batasuna as a rather blatant quid pro quo for Spanish support of the Iraq War. To please U.S. ally Turkey, the list includes the secessionist Kurdistan Workers' Party. Two Colombian rebel groups, meanwhile, are listed as a favor to that government. Ironically enough, al-Qaeda wasn't added to the list until October 1999; before then the law could not have been applied to al-Qaeda members. Charles Knight, international security expert at the Project on Defense Alternatives, thinks the term "terrorism" confuses "various forms of political violence commonly practiced in civil wars" with "international attacks by al-Qaeda in its war on America and 'the Zionists.'" Knight thinks we "would be better off if we dropped the term 'terrorism' altogether and turned to using more specific descriptions of the various types of political violence."

The best that can be said about the material-support law is that it still hasn't been widely used. But as the Bush administration's definition of terrorism expands, and as Ashcroft tries to broaden the law's purview, more people and more groups are likely to be subject to the injustices of this vague and arbitrary statute.