Experts question ‘material support’ law

BOISE – The law under which Sami Omar Al-Hussayen is being charged with aiding terrorists raises serious constitutional questions, experts say.

The “material support” to terrorists law, passed in 1996 after the Oklahoma City bombing and amended in 2001 by the USA Patriot Act, requires proof only that the support was provided with either the knowledge or the intention that it would help foreign terrorists.

Traditionally, said law professor William Banks of Syracuse University, “You have to intend the evils which you’re being charged with. If all you have to show is that you knew what you were doing, regardless of the outcome, that’s a much easier row to hoe.”

Al-Hussayen, a 34-year-old University of Idaho graduate student in computer science, is charged with providing material support to terrorists by operating and maintaining Web sites for Islamic groups, particularly the Islamic Assembly of North America, and by funneling donations to the group. Prosecutors say some of the materials posted on those sites were designed to help international terrorists raise funds and drum up recruits, by glorifying martyrdom and violent jihad.

Closing arguments in the case are scheduled for Tuesday, and then a four-man, eight-woman jury will begin deliberating.

Assistant U.S. Attorney Terry Derden said, “He’s not charged, if you will, with actually strapping the bombs to himself. He’s charged with providing support to those who would do so.”

Said Derden, “The material support statute is an effort by Congress to prevent people from bringing their conflicts and disputes here – from using the United States as a base.”

The material support law hasn’t been tested by the U.S. Supreme Court. But two of its provisions have been ruled unconstitutional by lower courts. One, added by the Patriot Act to define “expert advice and assistance” as material support, was ruled unconstitutionally broad and in conflict with First Amendment protections by a federal judge in Los Angeles in January.

The 9th Circuit Court of Appeals, in an earlier ruling in November 2003, found the same flaw in an original section of the material support law, defining the provision of “training or personnel” as material support.

Both of those provisions are cited in Al-Hussayen’s indictment, along with others including providing communications equipment, currency, monetary instruments and financial services.

“This is a highly problematic law,” said Nancy Chang, an attorney with the Center for Constitutional Rights in New York who worked on both the Los Angeles and 9th Circuit cases. “It gives the government wide latitude to investigate and prosecute individuals who are not engaged in terrorism as the term is commonly understood. The law … sweeps in speech protected by the First Amendment as well as political association that is protected by the First Amendment.”

William C. Bradford, a professor at the Indiana University School of Law in Indianapolis, said the government’s approach to the Al-Hussayen case indicates “an absolute or strict liability theory of guilt by association. I think it’s dangerous,” he said.

“The problem is, they can’t prove that Sami either knew or intended that any particular person act upon any information posted on that site,” Bradford said. “They haven’t even proved that Sami knew the content that was posted on that site.”

Bradford has been following the case closely and had expected to be called as a defense witness to discuss legal points. But the defense rested last week after calling only one witness.

Prosecutors have argued that Al-Hussayen’s actions to post items to the Web sites, along with intercepted telephone conversations and e-mails discussing them, show he had to know what was in the materials. But defense attorneys have argued that he was merely acting as a Web master, volunteering his considerable computer skills to help a legitimate religious organization in its outreach efforts. Al-Hussayen is a devout Muslim.

Bradford said, “This particular provision has been so badly and broadly written that it has the effect of criminalizing conduct which is not inherently criminal. … It also will have the effect of making it impossible, or at least very unlikely, that anyone in this country will be able to promote free expression with regard to Islam.”

Gary Perlstein, a terrorism expert and professor at Portland State University, said the Al-Hussayen case appears to rely on circumstantial evidence. He compared it with the Mayfield case in Oregon, in which an attorney was arrested after a partial fingerprint found at the site of a deadly Madrid, Spain, train bombing was initially thought to match his.

“Because he was a converted Muslim, and because his wife had made some suspicious phone calls, and because he had defended one of the Portland 7 in a child-custody case, they thought they had their man,” Perlstein said. “And it turned out the fingerprint was wrong.”

Perlstein said only the U.S. Supreme Court will be able to say definitively if the material support law is constitutional.

A 2000 ruling by the 9th Circuit Court of Appeals appeared to support the “knowledge or intent” standard, Banks said. That ruling said that if someone has donated to a known terrorist group, even if they didn’t intend the money to go toward terrorist acts, “there’s not a requirement that the government demonstrate a specific intent to aid illegal activities.”

“It’s a different case,” Banks said, “but … the analogy to the 2000 case would be that regardless of his expressive interests, because he can’t control how others might use his material, it may still constitute material support.”

However, Banks said, “It has fairly ominous implications for civil liberties, because then it’s … allowed the government to sanction what you’ve done, even though you have no intention to harm anyone.”

Depending on the outcome of Al-Hussayen’s case, it could set a precedent for future material-support cases, Banks said.

“I look at it as one brick in a wall that the government is seeking to build to use traditional criminal law mechanisms to crack down on what it views as support to terrorism activities,” Banks said.

“Eventually, there’ll have to be some clarification of the meaning of the provision by courts of appeal and … the Supreme Court.”