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May 5, 2004

Aiding Terrorists - An Examination of the Material Support Statute

By

Good morning Mr. Chairman and Members of the Committee. Thank you for the opportunity to testify before you today on the challenge of maintaining the balance between security and constitutionally protected freedoms inherent in responding to the threat of terror, especially in the context of government investigations of terrorist organizations.


For the record, I am a Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation, a nonpartisan research and educational organization. I am also an Adjunct Professor of Law at George Mason University where I teach Criminal Procedure and an advanced seminar on White Collar and Corporate Crime. I am a graduate of the University of Chicago Law School and a former law clerk to Judge R. Lanier Anderson of the U.S. Court of Appeals for the Eleventh Circuit. For much of the first 13 years of my career I served as a prosecutor in the Department of Justice and elsewhere, prosecuting white-collar offenses, and as an investigative counsel in Congress. During the two years immediately prior to joining The Heritage Foundation, I was in private practice representing principally white-collar criminal defendants and I continue to retain a private practice in this area. I have been a Senior Fellow at The Heritage Foundation since April 2002. 


My perspective on this matter, then, is that of a lawyer and a prosecutor with a law enforcement background, not that of a technologist or an intelligence officer/analyst. I should hasten to add that much of my testimony today is based upon a series of papers I have written on various aspects of this topic and testimony I have given before other bodies in Congress, all of which are available at The Heritage Foundation website (www.heritage.org). More particularly, a significant portion of my testimony today will be published in an article in the Spring 2004 volume of the Duquesne Law Review, entitled "Civil Liberty and the Response to Terrorism" and I thank the Law Review for permission to republish it here. Other portions of my testimony are derived from the legal analysis contained in publicly available filings in the Humanitarian Law Project case that lies at the heart of today's hearing. For any who might have read my earlier work, I apologize for the familiarity that will attend this testimony. Repeating myself does have the virtue of maintaining consistency -- I can only hope that any familiarity with my earlier work on the subject does not breed contempt.

 

* * * * *


It is a commonplace for those called to testify before Congress to commend the Representatives or Senators before whom they appear for their wisdom in recognizing the importance of whatever topic is to be discussed - so much so that the platitude is often disregarded as mere puffery. Today, however, when I commend this Committee for its attention to the topic at hand - the difficulty of both protecting individual liberty and enabling our intelligence and law enforcement organizations to combat terror - it is no puffery, but rather a heartfelt view. I have said often since September 11 that the civil liberty/national security question is the single most significant domestic legal issue facing America today, bar none. And, as is reflected in my testimony today, in my judgment one of the most important components of a responsible governmental policy addressing this difficult question will be the sustained, thoughtful, non-partisan attention of America's elected leaders in Congress. Nothing is more likely, in my judgment, to allow America to find the appropriate balance than your engagement in this issue. 


What I would like to do today is assist your consideration of this question by sharing with you some thoughts on a general framework for considering law enforcement issues in the post-9/11 world. I'd then like to apply that framework to the particular question facing this Committee - the material support provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the USA Patriot Act.

 

A Framework for Analysis

 

Expansion of Executive Power and Oversight -- The over-arching theme that animates discussion of our anti-terrorism efforts is the expansion of executive authority. Supporters argue that in a post-9/11 world, the executive requires broader powers to combat the threat of terrorism. Critics, generically, equate the potential for abuse of Executive Branch authority with the existence of actual abuse. They argue, either implicitly or explicitly, that the growth in executive power is a threat, whether or not the power has, in fact, been misused in the days since the anti-terrorism campaign began. In essence, these critics come from a long tradition of limited government that fears any expansion of executive authority, notwithstanding the potential for benign and beneficial results, because they judge the potential for the abuse of power to outweigh the benefits gained.

This criticism of the Patriot Act (and related executive actions), however, sometimes misapprehends important distinctions: First, the criticism often blurs potential and actuality. To be sure, many aspects of the Patriot Act (and other governmental responses) do expand the power of the government to act. And Americans should be cautious about any expansion of government power, for assuredly such expansion admits of the potential for abuse. But by and large, the potential for abuse of new Executive powers has proven to be far less than critics of the Patriot Act have presumed it would be.[1] 

Second, much of the belief in the potential for abuse stems from a misunderstanding to the true nature of the new powers that government has deployed to combat those threats.  To a surprising degree, opposition to the executive response to terror is premised on a mistaken, and sometimes overly apocalyptic, depiction of the powers that have accrued to the government. Our discussion of the "material support" provisions of the law (which, as you know, originated earlier than the Patriot Act) sometimes risks veering in this direction.

More fundamentally, those who fear the expansion of executive power in the war on terrorism offer a mistaken solution - prohibition. While we could afford that solution in the face of traditional criminal conduct we cannot afford that answer in combating the threat of terror. In the context of current circumstances, vigilance and oversight, enforced through legal, organizational and technical means, are the answer to potential abuse - not prohibition. We must keep a watchful eye to control for the risk of excessive encroachment, but if we do the likelihood of erosion of civil liberties can be substantially reduced. As I will outline in my testimony, I believe that much of the ongoing discussion about the scope of "material support" provisions fits comfortably within this oversight paradigm. Where others see an apocalyptic threat to civil liberty, I see a useful ongoing discussion about the contours of law enforcement in the age of terrorism. 

Type I and Type II Errors -- And how are we, substantively, to judge those contours? In my view, we must recognize that September 11 changes the paradigm for analysis from that of traditional law enforcement/civil liberties questions. In part, this is because the full extent of the terrorist threat to America cannot be fully known. Yet, we do know that terrorism remains a real, imminent, potent threat to national and international security. 

The U.S. State Department has a list of over 100,000 names worldwide of suspected terrorists or people with contact with terrorists.[2]  Before their camps in Afghanistan were shut down, Al Qaeda trained at least 70,000 people and possibly tens of thousands more.[3] Al Qaeda linked Jemaah Islamiyah in Indonesia is estimated to have 3,000 members across Southeast Asia and is still growing larger.[4] Although the estimates of the number of al-Qaeda terrorists in the United States have varied since the initial attack on September 11, the figure provided by the government in recent, supposedly confidential briefings to policymakers is 5,000.[5] This 5,000-person estimate may include many who are engaged in fundraising for terrorist organizations or other material support activities - precisely the activities at issue in this hearing. It may also include "personnel" who were trained in some fashion to engage in jihad, whether or not they are actively engaged in a terrorist cell at this time. We cannot, of course, be precise. But these and other publicly available statistics support two conclusions: (1) no one can say with much certainty how many terrorists are living in the United States, and (2) some who are here may wish to act in the foreseeable future.

The danger to America posed by the acts of terrorists arises from the new and unique nature of potential acts of war. Virtually every terrorism expert in and out of government believes there is a significant risk of another attack. Unlike during the Cold War, the threat of such an attack is asymmetric. In the Cold War era, U.S. analysts assessed Soviet capabilities, thinking that their limitations bounded the nature of the threat the Soviets posed. Because of the terrorists' skillful use of low-tech capabilities (e.g. box cutters) their capacity for harm is essentially limitless. The United States therefore faces the far more difficult task of discerning their intentions. Where the Soviets created "things" that could be observed, the terrorists create only transactions that can be sifted from the noise of everyday activity only with great difficulty. It is a problem of unprecedented scope, and one whose solution is imperative if American lives are to be saved.

As should be clear from the outline of the scope of the problem, the suppression of terrorism will not be accomplished by military means alone. Rather, effective law enforcement and/or intelligence gathering activity are the key to avoiding new terrorist acts. Recent history supports this conclusion.[6] In fact, police have arrested more terrorists than military operations have captured or killed. Police in more than 100 countries have arrested more than 3000 Al Qaeda linked suspects,[7] while the military captured some 650 enemy combatants.[8]  Equally important, it is policing of a different form - preventative rather than reactive, since there is less value in punishing terrorists after the fact when, in some instances, they are willing to perish in the attack.

The foregoing understanding of the nature of the threat from terrorism helps to explain why the traditional law enforcement paradigm needs to be modified in the context of terrorism investigations. The traditional law enforcement model is highly protective of civil liberty in preference to physical security. All lawyers have heard one or another form of the maxim that "it is better that 10 guilty go free than that 1 innocent be mistakenly punished."[9] This embodies a fundamentally moral judgment that when it comes to enforcing criminal law American society, in effect, prefers to have many more Type II errors (false negatives) than it does Type I errors (false positives).[10] That preference arises from two interrelated grounds: one is the historical distrust of government that, as already noted, animates many critics of the Patriot Act. But the other is, at least implicitly, a comparative valuation of the social costs attending the two types of error. We value liberty sufficiently highly that we see a great cost in any Type I error. And, though we realize that Type II errors free the guilty to return to the general population, thereby imposing additional social costs on society, we have a common sense understanding that those costs, while significant, are not so substantial that they threaten large numbers of citizens or core structural aspects of the American polity.

The post-September 11 world changes this calculus in two ways. First, and most obviously, it changes is the cost of the Type II errors. Whatever the cost of freeing John Gotti or John Mohammed might be, they are substantially less then the potentially horrific costs of failing to stop the next al-Qaeda assault. Thus, the theoretical rights-protective construct under which our law enforcement system operates must, of necessity, be modified to meet the new reality. We simply cannot afford a rule that "better 10 terrorists go undetected than that the conduct of 1 innocent be mistakenly examined."[11]

Second, and less obviously, it changes the nature of the Type I errors that must be considered. In the traditional law enforcement paradigm the liberty interests at stake is personal liberty - that is, freedom from the unjustified application of governmental force. We have as a model, the concept of an arrest, the seizure of physical evidence, or the search of a tangible place. As we move into the information age, and deploy new technology to assist in tracking terrorists, that model is no longer wholly valid.

Rather, we now add related, but distinct conception of liberty to the equation - the liberty that comes from anonymity.[12]  Anonymity is a different, and possibly weaker, form of liberty: The American understanding of liberty interests necessarily acknowledges that the personal data of those who have not committed any criminal offense can be collected for legitimate governmental purposes. Typically, outside the criminal context, such collection is done in the aggregate and under a general promise that uniquely identifying individual information will not be disclosed. Think, for example, of the Census data collected in the aggregate and never disclosed, or of the IRS tax data collected on an individual basis, reported publicly in the aggregate, and only disclosed outside of the IRS with the approval of a federal judge based upon a showing of need.[13]

What these examples demonstrate is not so much that our conception of liberty is based upon absolute privacy expectations,[14]but rather that government impingement on our liberty will occur only with good cause. In the context of a criminal or terror investigation, we expect that the spotlight of scrutiny will not turn upon us individually without some very good reason.

Finally, it bears noting that not all solutions necessarily trade off Type I and Type II errors, and certainly not in equal measure. Some novel approaches to combating terrorism might, through technology, actually reduce the incidence of both types of error.[15] More commonly, we will alter both values but the comparative changes will be the important factor. Where many critics of the Patriot Act and other governmental initiatives go wrong is, it seems to me, in their absolutism - they refuse to admit of the possibility that we might need to accept an increase in the number of Type I errors. But that simply cannot be right - liberty is not an absolute value, it depends on security (both personal and national) for its exercise. As Thomas Powers has written: "In a liberal republic, liberty presupposes security; the point of security is liberty."[16]  The growth in danger from Type II errors necessitates altering our tolerance for Type I errors. More fundamentally, our goal should be to minimize both sorts of errors.

"Material Support" for Terrorist Organizations

As you may gather from the foregoing general principles, my analysis of the "material support" provisions of the Patriot Act is a mixed verdict. I begin from the premise that, in this context (unlike, I hasten to add, most other aspects of the Patriot Act) the Executive response to terror has directly raised the specter of a potential threat to core First Amendment advocacy - opposition, for example, to the Administration's policy regarding Iraq, or globalization of the economy. Unlike other aspects of the Patriot Act (for example, the much-derided but absolutely necessary delayed notification provisions of Section 213) where the costs of Type II errors are high, and the relative costs of Type I errors minimal, in the context of investigating organizations that are both potential terrorist groups and potential political organizations the possible costs of a Type I error are higher. The fundamental right to openly criticize the government is a broad public right, held by all in common. As such we should be especially careful before allowing new policies to trench upon that right.

The Patriot Act might be seen to impinge on First Amendment freedoms in its prohibition against providing material support to terrorist organizations. Some organizations have humanitarian aspects to their work and say that their humanitarian efforts are distinct from the allegedly terrorist acts of related organizations. They thus argue that it impinges on First Amendment freedoms of speech and association for supporters to be criminally prosecuted when all they are doing is providing material support to the humanitarian aspects of the organization. The Executive responds, not unreasonably, that money is fungible and that contributions to the humanitarian aspects of the organization are readily "passed through" to the terrorist arms of related organizations.[17] We thus face the difficult conundrum of distinguishing between conduct aimed to support legitimate political and humanitarian groups and conduct that is a mere subterfuge for supporting terrorist organizations.

It must, first, be acknowledged that much of the ambiguity in the statute pre-dates the Patriot Act itself. It was an earlier statute, the Anti-Terrorism and Effective Death Penalty Act of 1996, (AEDPA) that gave the Secretary of the Treasury the authority to designate terrorist organizations, and made it a crime to provide material support to organizations so designated.[18] The Patriot Act, in section 810 enhanced the criminal penalties and also, in section 805, expanded the scope of the statute - making clear that it applied to those who provided expert assistance to terrorist organizations and applied to acts outside the United States. Section 805 also expanded the list of terrorism crimes for which it is illegal to provide material support and clarified that material support includes all types of monetary instruments. But the core concept - that providing support to terrorist organizations is wrong - predates September 11.

It must also be understood that Congress was cognizant of the First Amendment concerns of trenching on protected political advocacy when it enacted AEDPA, yet chose to act anyway - largely because of the felt necessity: "Several terrorist groups have established footholds within ethnic or resident alien communities in the United States," and "[m]any of these organizations operate under the cloak of a humanitarian or charitable exercise . . . and thus operate largely without fear of recrimination." Thus, Congress determined that the prohibition on material support was the only option available: "There is no other mechanism, other than an outright prohibition on contributions, to effectively prevent such organizations from using funds raised in the United States to further their terrorist activities abroad." As a consequence, Congress saw a prohibition on material support for terrorist organizations as "absolutely necessary to achieve the government's compelling interest in protecting the nation's safety from the very real and growing terrorist threat."

Lest it be accused of excess, before passing AEDPA Congress also examined various constitutional issues raised by a ban on material support. The House of Representatives report acknowledged that "[t]he First Amendment protects one's right to associate with groups that are involved in both legal and illegal activities." That report emphasized that the contemplated ban on material support "does not attempt to restrict a person's right to join an organization. Rather, the restriction only affects one's contribution of financial or material resources to a foreign organization that has been designated as a threat to the national security of the United States." [19] In short, even before September 11, Congress attempted to carefully construct a balanced and nuanced approach that both recognized the liberty interests at stake AND understood the necessity of enhanced investigative authority.

Vagueness -- Some nonetheless, challenge the application of these provisions - they think Congress got the balance wrong. Their principal avenue of challenge is to say that these provisions are vague - a contention with which I disagree. Nonetheless, as the Committee is no doubt aware, at least one appellate Court has held that the terms "personnel" and "training" as used in the material support provisions of AEDPA are impermissibly vague.[20] A district court likewise has held that the phrase "expert advice" - added to the law by the Patriot Act -- is impermissibly vague.[21] 

Unlike the conclusions regarding the intent of the Patriot Act (to which I turn my attention in a moment), these decisions (which purport to find vagueness in words of common usage) are highly suspect. More significantly, because the construction given to the scienter requirement sufficiently limits potential abuse, the vagueness challenges to Section 2339 are unnecessary.[22]

Fair Notice and Language  -- As a basic principle of due process, criminal prohibitions must give a person of ordinary intelligence "fair warning" of criminality.[23]   The law does not need to define an offense with mathematical certainty, but must provide "relatively clear guidelines as to prohibited conduct."[24]This doctrine recognizes that some exercise of prosecutorial discretion in choosing cases is inevitable - all that the Constitution requires is that Congress, through the text of the statutes "establish[es] minimal guidelines to govern law enforcement."[25]   To prove that a statute is unconstitutionally vague on its face, a defendant must "at least demonstrate[] implication of 'a substantial amount of constitutionally protected conduct.'"[26]  Most importantly, if a class of offenses can be made constitutionally definite by a reasonable construction of the statute, the courts are under a "duty to give the statute that construction."[27]In my judgment, the Ninth Circuit panel failed to exercise that "duty," - one that could readily have been accomplished by consulting dictionary definitions of the words chosen by Congress.

The terms chosen by Congress - "personnel," "training," and "expert advice" - are sufficiently clear in their meaning to provide fair warning to a person of reasonable intelligence as to the potential that his or her conduct falls within the statutory prohibition. The term "personnel," for example, generally describes employees or others working affiliated with a particular organization and working under that organization's direction or control. The Oxford English Dictionary defines it as: "The body of persons engaged in any service or employment, esp. in a public institution, as an army, navy, hospital, etc.; the human as distinct from the material or material equipment (of an institution, undertaking, etc."[28] Thus, "personnel" has a discernible and specific meaning, familiar to members of the working world who act in organizations. 

The word "personnel" is also used in numerous other places in the criminal code.  For example, the code refers to:  "United States personnel" assigned to a foreign mission or entities (18 U.S.C.  7(9)(B)); "ground personnel" preparing an aircraft for flight (18 U.S.C. 31(5)(A));  "senior personnel" of Executive Branch and independent agencies (18 U.S.C.  207(c)); civilian law enforcement "personnel," and "personnel" of the Department of Defense (18 U.S.C. 831(d) & (e)(2)(B)(ii)); and  "personnel" of the Armed Forces (18 U.S.C. 2277(b)).  If the term "personnel" is vague in as employed in AEDPA, then it is equally vague in these other contexts - yet no one would seriously offer that argument.[29]

Similarly, the ban against providing "training" to designated foreign terrorist organizations is not unconstitutionally vague.  The verb "train" is commonly understood to mean: "To subject to discipline and instruction for the purpose of forming the character and developing the powers of, or of making proficient in some occupation."  More particularly, to train is "[t]o instruct and discipline in or for some particular art, profession, occupation or practice; to make proficient by such instruction and practice."[30]  It boggles the mind to suggest that Congress cannot proscribe teaching foreign terrorists how to become better terrorists - yet if the logic of the vagueness argument is followed, that would be the result.  The statutory ban rightly can be read to preclude the training of foreign terrorists on how to use weapons, build bombs, evade surveillance, or launder funds - and that's a good thing.

And, finally, "expert assistance" is not in any way vague.  It is a common concept in the law -- for example, Rule 702 of the Federal Rules of Evidence defines "expert" testimony to be based on "scientific, technical, or other specialized knowledge."  The Oxford English Dictionary offers a similar definition:  "One whose special knowledge or skill causes him to be regarded as an authority; a specialist."[31]   In turn, "advice" is an equally familiar term, meaning:  "Opinion given or offered as to action; counsel." [32]  I have no doubt whatsoever that I was called upon today to offer you my opinion because some member of the Committee staff thought I was an expert whose advice would be of value to you.  To deny that those words clearly include my conduct today is, with respect, to deny that words have meaning. 

Indeed, with respect to all of these terms, one might reasonably ask opponents of the provision what language they would suggest to clarify the alleged vagueness.  They can offer none, because, at bottom, their argument is the solipsistic one of Sartre. 

Standing and Overbreath -- Nevertheless, the Ninth Circuit held that two of these phrases - "training" and "personnel" were vague, and a district court has determined that "expert assistance" is vague, as well.  Looking closely at the reasoning of these two courts demonstrates how badly astray they have gone in their analysis.

The Ninth Circuit offered two examples of training that might raise First Amendment concerns: instructing a designated terrorist organization on how to petition the United Nations, and teaching conflict resolution to such an organization.[33]  In some instances, the district court was concerned that similar actions could be construed as the provision of "expert assistance."  But the possibility of such applications does not mean the statutes are vague and does not justify invalidating the provisions in their entirety on a facial challenge. 

Indeed, settled law is to the contrary.  An individual who asserts that a statute is vague must establish its vagueness as to his own conduct.  The hypothetical "expert political advocate" who might be caught in the alleged vagueness of the words "training" and "expert assistance" is not a ground for facially invalidating the statute.  Rather, the proper course is an as applied challenge to the law on vagueness grounds as cases and circumstances warrant.  For this reason, as the Supreme Court has said, where an individual had fair notice from the language of the statute that his own conduct is prohibited, he has no standing to assert that the statute was vague as it might hypothetically be applied to others.[34]

What is really at issue here is not, with all respect to the Ninth Circuit, vagueness.  The real question is one of alleged overbreadth.  In other words, in my view the language of the statute is clear.  But it is also clear that an ill-minded government could seek to apply these clear words to protected First Amendment conduct. Thus, the concern is a potentially over broad application of the law - beyond the core areas of concern that everyone concedes are constitutionally proscribable to areas of expressive conduct where the government should not tread. The Ninth Circuit, by ignoring the correct issue, missed the right analysis.

But even if it had asked the right question, the result -- voiding the statute -- would (as the district court recognized) be wrong.  As the Supreme Court said, just this past year, "there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law - particularly a law that reflects 'legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.'"[35]  The Court went on to explain:

[T]here are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.  To ensure that these costs do not swallow the social benefits of declaring a law 'overbroad,' we have insisted that a law's application to protected speech be 'substantial,' not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, . . . before applying the 'strong medicine' of overbreadth invalidation.[36]

Thus, "[t]he overbreadth claimant bears the burden of demonstrating, 'from the text of [the law] and from actual fact,' that substantial overbreadth exists."[37]

And this, at the core, demonstrates why the overbreadth challenge should fail.  As already discussed, the text of the law does not suffer from unreasonable scope.  And, as I noted at the outset, there are no "actual facts" of abuse that have been reported - no public advocates criminalized for their political speech.  And the social costs of declaring these laws overbroad is potentially catastrophic.  The United States has a "legitimate state interest" in controlling the "constitutionally unprotected conduct" of providing material support for terrorism - teaching a terrorist how to build a bomb is not protected free speech.  Courts that rule otherwise fail to recognize that the paradigm of pure law enforcement can no longer be applied.  The cost of the Type II errors is simply too great. And thus, as the Supreme Court said in a far more benign context in Hicks, the social costs of striking the entire law as overly broad counsel strongly against that result.

Nor is my view mere speculation.  Already, these laws (AEDPA, (as codified in 18 U.S.C. § 2339, and Section 805 of the Patriot Act) have been used in a number of cases to prosecute potential terrorist activities.  For example, John Walker Lindh was charged with providing "personnel" to al Qaeda based on acts of attending its terrorist training camp, swearing allegiance in jihad, and volunteering for military service in its forces.  These charges were then upheld against vagueness and overbreadth attacks (demonstrating, by the way that the decisions that have been handed down by the courts on the West Coast are by no means ineluctable).[38]   A half dozen other cases can also be identified.[39] To accept the reasoning of the courts on vagueness or overbreadth grounds is to despair of any real ability to address this conduct - and that is, regretfully, a result we simply cannot afford.

It is also, in my judgment, a result that is unnecessary.  Rather than distorting the doctrines of vagueness and overbreadth to protect hypothetical innocent First Amendment actors, a far more direct and appropriate method (already adopted by the Ninth Circuit) exists to limit the potential for abuse - construing the scienter requirements in a manner that protects innocent actors.  To that issue, I now turn.

Material Support and Scienter --  The Ninth Circuit has interpreted the intent requirements of Section 2399B.  In my view, in this aspect of interpretation the Ninth Circuit got it more or less right.

What must the government prove the supporter knew in order for the supporter to violate the criminal prohibition?  The statute says that "Whoever . .. knowingly provides material support to a foreign terrorist organization" is guilty of a crime.[40]  Does it suffice to show that the supporter purposefully did the act which constitutes the offense - i.e. that he provided material support by donating money to the organization, or must government also show that the supporter knew of the organization's designation as a terrorist organization or of the unlawful activities that caused it to be so designated.[41]

Here, the Government's position - that it need not prove knowledge of the designation -- goes too far and risks trenching on First Amendment freedoms of speech and association.[42]  The requirement that a crime involve culpable purposeful intent has a solid historical grounding. As Justice Robert Jackson wrote:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."[43]

Though the text of section 2339B requires that the supporters have acted "knowingly" - a seeming protection from the imposition of unwarranted liability - if interpreted as the government suggest, that requirement would be but a parchment barrier to what is, in effect, the imposition of absolute liability. The government's interpretation would presume that all supporters are charged with knowing all of the intricate regulatory arcana that govern the designation by the Secretary of terrorist organizations - a presumption that generally applies (and perhaps misapplies) in the context of a closely regulated industry.[44] As a consequence, under the Government's interpretation, the only requirement imposed by requiring proof that one has acted "knowingly" is that the government must demonstrate that the defendant has purposefully done the act constituting the offense - and in the context of a charitable donation that showing is trivial.  Nobody donates money (or provides advice) by mistake or accident.  As Justice Potter Stewart noted: "As a practical matter, therefore, they [would be] under a species of absolute liability for violation of the regulations despite the 'knowingly' requirement."[45]

What is particularly disturbing about the Government's argument is that it works in tandem with the statutory amendment authorizing significantly harsher penalties. Historically, when the courts first considered laws containing reduced intent requirements, the laws almost uniformly provided for very light penalties such as a fine or a short jail term, not imprisonment in a penitentiary.[46] As commentators noted, modest penalties are a logical complement to crimes that do not require specific intent.[47] Indeed, some courts questioned whether any imprisonment at all could be imposed in the absence of intent and culpability.[48] This historical view has, of course, been lost: laws with reduced mens rea requirements are often now felonies.[49] And even misdemeanor offenses can, through the stacking of sentences, result in substantial terms of incarceration.[50]

But this should not be the uniform case - especially where, as here, much innocent conduct, otherwise protected by the First Amendment, would be swept up in the broader definition.  We should not lose sight of a fundamental truth: "If we use prison to achieve social goals regardless of the moral innocence of those we incarcerate, then imprisonment loses its moral opprobrium and our criminal law becomes morally arbitrary."[51] Or as the drafters of the Model Penal Code said:

It has been argued, and the argument undoubtedly will be repeated, that strict liability is necessary for enforcement in a number of the areas where it obtains. But if practical enforcement precludes litigation of the culpability of alleged deviation from legal requirements, the enforcers cannot rightly demand the use of penal sanctions for the purpose. Crime does and should mean condemnation, and no court should have to pass that judgment unless it can declare that the defendant's act was culpable. This is too fundamental to be compromised.[52]

The broad statutory language, which does not make clear what intent must be proven has, fortunately, begun to be interpreted by the courts in a restrictive manner.[53]  And that's a good thing - it demonstrates that we can grant the government additional powers to combat terrorism while reasonably anticipating that the checking mechanisms in place will restrain to excessive a use of those powers.

And, lest one think that I, too, have fallen into the trap of exalting liberty over security, let me hasten to add two important points:

First, we should have every confidence that by and large Executive authorities are already screening cases for these very criteria.  There is little (indeed no) reason to suspect that the Executive branch is using Section 805 as a means of condemning wholly innocent behavior.  Thus, the imposition of scienter requirement, while perhaps allowing some guilty to escape at the margins, will have little effect in the run-of-the-mine cases.  In short, it substantially lowers the risks of Type II errors while not appreciably enhancing the probability of Type I errors.

Second, and equally important, the addition of a scienter requirement will not eliminate the ability of the government to rely on other standard doctrines of criminal law, such as willful blindness, with which faux claims of innocence may be rebutted.  Frankly, reviewing the Humanitarian Law Project case we've been discussing, I think the public record of the Tamil Tigers as a terrorist organization is so widely known that claims of innocence in affiliating with the group are unlikely to prove availing.  Defendants will not be able to avoid penalties by maintaining a willful blindness to the true nature of the organization.  Our collective American experience is that juries are quite good at sorting the sham claims of innocence from the legitimate ones.

Lessons Learned

Finally, I want to step back and ask what we can learn from the foregoing analysis and our experience with the court's construction of Section 2339B.  Frankly, it leaves me very optimistic. 

I disagree with portions of the Ninth Circuit's opinion - profoundly.  Other portions, I find commendable.  But what I find most commendable of all is that the judicial review function is working.  And review - both by the Courts, and by this Congress - is essential.  For oversight - in its varying forms -- enables us to limit the executive exercise of authority. Paradoxically, however, it also allows us to empower the executive; if we enhance transparency appropriately, we can also comfortably expand governmental authority, confident that our review of the use of that authority can prevent abuse. While accommodating the necessity of granting greater authority to the Executive branch, we must also demand that the executive accept greater review of its activities.

So, I see the cases you are reviewing, and the conduct of this hearing, as a success story.  It is part of an ongoing dialogue about civil liberty and security - a dialogue that is just beginning.  When the Cold War began it was more than 10 years before the legal and structural systems that would sustain us through the 50-year struggle were put in place.  We cannot, and should not, expect that at the start of this long struggle we will get it right the first time.

As Michael Chertoff the former Assistant Attorney General for the Criminal Division has written:

The balance [between liberty and the response to terror] was struck in the first flush of emergency.  If history shows anything, however, it shows that we must be prepared to review and if necessary recalibrate that balance.  We should get about doing so, in light of the experience of our forbearers and the experience of our own time.[54]

Others have echoed that call.[55]

Right now, the judicial debate will continue.  If the views of the Ninth Circuit prevail (contrary to my own views) then Congress will be well positioned to fix the problem with additional language.  If, by contrast, my views are ultimately persuasive, then the courts (through as applied challenges) and Congress will nonetheless remain ready to police the boundaries of executive authority and insure against abuse.

And that is exactly as it should be.  John Locke, the seventeenth-century philosopher who greatly influenced the Founding Fathers, was equally right when he wrote: "In all states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from the restraint and violence from others; which cannot be where there is no law; and is not, as we are told, a liberty for every man to do what he lists."[56]  Thus, the obligation of the government is a dual one: to protect civil safety and security against violence and to preserve civil liberty.

And so, I return to where I began - commending this Committee for its thoughtful consideration of the issues. So long as we keep a vigilant eye on police authority, so long as the federal courts remain open, and so long as the debate about governmental conduct is a vibrant part of the American dialogue, the risk of excessive encroachment on our fundamental liberties is remote.  The only real danger lies in silence and leaving policies unexamined.

Mr. Chairman, thank you for the opportunity to testify before the Committee.  I look forward to answering any questions you might have.



[1]The Inspector General for the Department of Justice has reported that there have been no instances in which the Patriot Act has been invoked to infringe on civil rights or civil liberties. See Report to Congress on Implementation of Section 1001 of the USA Patriot Act (Jan 27, 2004); see also "Report Finds No Abuses of Patriot Act," Wa. Post at A2 (Jan. 28, 2004). This is consistent with the conclusions of others. For example, at an earlier hearing conducted by this Committee on the Patriot Act Senator Joseph Biden (D-DE) said that "some measure of the criticism [of the Patriot Act] is both misinformed and overblown." His colleague, Senator Dianne Feinstein (D-CA) said: "I have never had a single abuse of the Patriot Act reported to me. My staff . . . asked [the ACLU] for instances of actual abuses.  They . . . said they had none." Even the lone Senator to vote against the Patriot Act, Senator Russ Feingold (D-WI) said that he "supported 90 percent of the Patriot Act" and that there is "too much confusion and misinformation" about the Act. See Senate Jud. Comm. Hrg. 108th Cong, 1st Sess. (Oct. 21, 2003). These views -- from Senators outside the Administration and an internal watchdog -- are at odds with the fears often expressed by the public.

[2]Lichtblau, Eric. "Administration Creates Center for Master Terror 'Watch List'." New York Times, Sept. 17, 2003.

[3]In an interview on NBC's "Meet the Press," Senator Bob Graham was quoted as saying, "…al-Qaeda has trained between 70,000 and 120,000 persons in the skills and arts of terrorism." July 13, 2003.

[4]Hunt, Terence. "Bush shows resolve by visiting Bali." Chicago Sun-Times, Oct. 22, 2003, p. 36.

[5]Bill Gertz, "5,000 in U.S. Suspected of Ties to al Qaeda." The Washington Times. July 11, 2002.

[6]See, e.g. Dana Dillon, War on Terrorism in Southeast Asia: Developing Law Enforcement, Backgrounder No. 1720 (Heritage Foundation Jan. 22, 2004).

[7]Slevin, Peter. "U.S. Pledges Not to Torture Terror Suspects." The Washington Post, June 27, 2003, p. A01

[8]Taylor, Francis. "Transcript: State Dept Official Says War Against Terrorism Continues." June 9, 2003, available at http://usembassy.state.gov/tokyo/wwwh20030611a6.html

[9]  E.g. Furman v. Georgia, 408 U.S. 238, 367 n. 158 (1972) (Marshall, J., concurring). The aphorism has its source in 4 Blackstone, Commentaries, ch. 27 at 358 (Wait & Co. 1907). 

[10]  "In a criminal case ... we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty .... [T]he reasonable doubt standard is] bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free." In re: Winship, 397 U.S. 357, 372 (1970) (Harlan, J., concurring).

[11]The closely related point, of course, is that we must guard against "mission creep." Since the justification for altering the traditional assessment of comparative risks is in part based upon the altered nature of the terrorist threat, we cannot alter that assessment and then apply it in the traditional contexts. See Paul Rosenzweig and Michael Scardaville, The Need to Protect Civil Liberties While Combating Terrorism: Legal Principles and the Total Information Awareness Program, Legal Memorandum No. 6, at 10-11 (The Heritage Foundation February 2003) (arguing for use of new technology only to combat terrorism); William Stuntz, "Local Policing After the Terror," 111 Yale L. J. 2137, 2183-84 (2002) (arguing for use of information sharing only to combat most serious offenses).

[12]See Phillip Kurland, "The private I," The University of Chicago Magazine, Autumn 1976, p. 8 (characterizing three facets of privacy, broadly characterized as anonymity, secrecy, and autonomy), quoted in Whalen v. Roe, 429 U.S. 589, 599 n.24 (1977).

[13]E.g. 26 U.S.C. § 7213 (prohibiting disclosure of tax information except as authorized for criminal or civil investigations).

[14]But cf. Lawrence v. Texas, -- U.S. --. 123 S.Ct. 2472 (2003) (recognizing that certain intrusions into individual privacy are beyond governmental power).

[15]See K. A. Taipale, "Data Mining and Domestic Security: Connecting the Dots to Make Sense of Data," 5 Colum. Sci. & Tech. L. Rev. 2, 31 ( December 2003) (discussing use of ensemble classifiers to reduce error rates) (available at http://www.stlr.org/cite.cgi?volume=5&article=2).

[16]Thomas Powers, "Can We Be Secure and Free?" The Public Interest (Spring 2003)

[17]  Nor is the concern limited to the Executive Branch. The Senate Finance Committee has begun an investigation of certain charities, believing them to be fronts for Al-Qaeda fundraising. See Dan Eggen and John Mintz, "Muslim Groups' IRS Files Sought," Wa. Post, at A1 (Jan. 14, 2004).

[18]  See Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-31, 110 Stat 1214, § 302, 303 (codified at 8 USC § 1189 and 18 USC § 2339).

[19]See H.R. Rep. No. 104-383, at 43-45 (1995); see id. at 45 ("The ban does not restrict an organization's or an individual's ability to freely express a particular ideology or political philosophy. Those inside the United States will continue to be free to advocate, think, and profess the attitudes and philosophies of the foreign organizations. They are simply not allowed to send material support or resources to those groups, or their subsidiary groups, overseas.").

[20]Humanitarian Law Project v. Department of Justice, 352 F.3d 382, 403-05 (9th Cir. 2003). 

[21]See Humanitarian Law Project v. Ashcroft, -- F.Supp.2d -, 2004 WL 547534 (C.D. Cal. Jan. 22, 2004); see also Eric Lichtblau, "Citing Free Speech, Judge Voids Part of Antiterror Act," NY Times at A1 (Jan. 27, 2004)). 

[22]As I noted at the outset, portions of the legal analysis I discuss here were first advanced in filings by the Department of Justice in the Humanitarian Law Project case.

[23]Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).

[24]Posters N' Things, Ltd. v. United States, 511 U.S. 513, 525 (1994). 

[25]Kolender v. Lawson, 461 U.S. 352, 358 (1983).

[26]Schwartzmiller v. Gardner, 752 F.2d 1341, 1348 (9th Cir. 1984).

[27]United States v. Harriss, 347 U.S. 612, 618 (1954). 

[28]See Oxford English Dictionary (1999 ed.) (CD-ROM Ver. 2.0) (emphasis in original) [hereinafter OED (1999 ed.)]; see also Webster's Third New International Dictionary (defining "personnel" as "a body of persons employed in some active service (as the army or navy, a factory, office, airplane)").

[29]  To the extent greater clarity is necessary, it is added by the use of the word "provide" which precedes personnel in the statute and the word "to" that follows it.  To "provide personnel to" an organization is to act as an employee of the organization under its direction and control - not, as some would posit, to act independently of that organization. 

[30]See OED (1999 ed.).

[31]See OED (1999 ed.); see also (defining expert as "possessing special skill or knowledge").

[32]See OED (1999 ed.); see also Random House Dictionary 29 (2d ed. 1987) (" an opinion or recommendation offered as a guide to action, conduct, etc.").

[33]352 F.3d at 404. 

[34]See Parker v. Levy, 417 U.S. 733, 755 (1974). 

[35]Virginia v. Hicks, 123 S. Ct. 2191, 2197 (2003).

[36]Id. (citations omitted; emphasis in original)

[37]  Id. at 2198.

[38]  See United States v. Lindh, 212 F. Supp.2d 541, 572-74 (E.D.Va. 2002).

[39]  Other cases involving these provisions include United States v. Battle, (D. Oregon October 2, 2002) (defendants are charged with providing "personnel" by conspiring to travel to Taliban-controlled Afghanistan after September 11, 2001, to join al Qaeda forces fighting jihad, and to take up arms against the United States and its allied military forces serving in Afghanistan); United States v. Goba, (W.D.N.Y October 21, 2002) ( defendants are charged with providing "personnel" by traveling to Afghanistan to engage in jihad training); United States v. Stewart, (S.D.N.Y., Sept. 2002) (defendants supplied "personnel" by providing themselves to the Islamic Group by facilitating communication to it by its imprisoned leader); United States v. Ujamma, (W.D. Wash. August 28, 2002) (defendants are charged with violating the "personnel" provision by conspiring to recruit persons interested in violent jihad and jihad training, and to sponsor partially trained persons for operations coordinated by al Qaeda).

[40]   18 USC § 2339B.

[41]   Humanitarian Law Project v. Department of Justice, 352 F.3d 382  (9th Cir. 2003).

[42]   For a general discussion of the problem of overly broad criminal laws and the increased criminalization of otherwise innocent conduct, see Paul Rosenzweig, The Over-Criminalization of Social and Economic Conduct, Legal Memorandum No. 7 (The Heritage Foundation April 2003).

[43]  Morrisette, 342 U.S. at 250-51.

[44]  E.g. United States v. International Minerals & Chemical Corp., 402 U.S. 558, 565 (1971) ("[W]here . . . dangerous or deleterious materials are involved, the probability of regulation is so great that anyone who is aware that he is

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