Order Code RL33035
CRS Report for Congress
Received through the CRS Web
Material Support of Terrorists
and Foreign Terrorist Organizations:
Sunset Amendments
August 11, 2005
Charles Doyle
Senior Specialist
American Law Division
________________________________________________________________________________________________________________________________________________________
Congressional Research Service ˜ The Library of Congress
Summary
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004
(IRTPA) temporarily amended two federal terrorist assistance prohibitions. Those
amendments expire on December 31, 2006, P.L. 108-458, 118 Stat. 3762-764 (2004).
Under the provisions of H.R. 3199, as passed by the House, and S. 1389, as passed by the
Senate, the amendments would become permanent.
In response to court decisions that found certain of their central terms
unconstitutionally vague, section 6603 amended the federal statutes that outlaw
assistance to terrorists and foreign terrorist organizations, 18 U.S.C. 2339A, 2339B.
Initial judicial reaction suggests they may still be considered vague. Section 6603
temporarily rejected a narrow construction of the knowledge requirements under section
2339B, an interpretation which might have dissipated any vagueness problems.
Section 6603 expanded the overseas application of section 2339B as well. It permits
federal prosecution of an act proscribed in section 2339B and committed entirely abroad
by a foreign national if the offender can be brought to this country for trial.
Section 2339A outlaws providing material support or resources with the intent that
they be used for the commission of certain predicate terrorism offenses. Section 6603
enlarged the list of predicate offenses to include any federal crime of terrorism (18 U.S.C.
2332b(g)(5)(B)) and added two crimes to the list, 18 U.S.C. 1361 (destruction of federal
property) and 18 U.S.C. 2156 (production of defective national defense material).
Finally, section 6603 added an immunity provision under which an individual or
entity who provides assistance in violation of section 2339B may not be prosecuted in
certain instances if the offense was committed with the prior approval of the Secretary of
State and the Attorney General.
This report appears in abridged form – without footnotes, appendix, and some
citations to authority – as CRS Report RS22222, Material Support of Terrorists and
Foreign Terrorist Organizations: Expiring Amendments in Brief.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Material Support: Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Material Support: Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Material Support: Overseas Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Federal Crimes of Terrorism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Prosecutorial Forbearance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Material Support of Terrorist and Foreign
Terrorist Organizations: Sunset
Amendments
Introduction
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004
temporarily amends two federal terrorist assistance prohibitions, P.L. 108-458, 118 Stat.
3762-764 (2004). The amendments expire on December 31, 2006. Under the provisions
of H.R. 3199, as passed by the House, and S. 1389, as passed by the Senate, the
amendments would be made permanent. In their present form the amendments, found in
section 6603 of the act, temporarily:
- amend the definitions of “material support or resources,” “training,” and “expert
advice or assistance” as those terms are used in 18 U.S.C. 2339A and 2339B, and
of “personnel” as used in section 2339B;
- add a more explicit knowledge requirement to section 2339B;
- expand the extraterritorial jurisdiction reach of section 2339B;
- enlarge the list of federal crimes of terrorism, 18 U.S.C. 2332b(g)(5);
- add the enlarged list of federal crimes of terrorism to the inventory of predicate
offenses for 18 U.S.C. 2339A (material support for the commission of certain
terrorist crimes) and consequently for 18 U.S.C. 2339B (material support for
designated terrorist organizations); and
- preclude prosecution for certain violations committed with the approval of the
Secretary of State and concurrence of the Attorney General (e.g., stings).
Material Support: Definitions
Sections 2339A and 2339B are proximity crimes. They proscribe certain
conduct because of its proximity to other crimes, in this case terrorist offenses.
Section 2339A outlaws providing, attempting to provide, or conspiring to provide,
material support or resources for the commission of any of several designated federal
crimes that a terrorist might commit;1 section 2339B outlaws providing, attempting
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1 18 U.S.C. 2339A(a) (“Whoever provides material support or resources or conceals or
disguises the nature, location, source, or ownership of material support or resources,
CRS-2
to provide, or conspiring to provide, material support or resources to a designated foreign
terrorist organization.2
Section 6603 of the Intelligence Reform and Prevention of Terrorism Act made
several amendments to section 2339A and 2339B in response to judicial decisions that
either found them unconstitutionally vague or suggested a demanding mens rea
(knowledge) requirement.3 Section 2339A contains a definition of “material support
or resources” that applies to both sections, 18 U.S.C. 2339A(b). Some courts had
been particularly troubled by the uncertain sweep of the terms “training,”
“personnel,” and “expert advice or assistance” used in the definition. The Ninth
Circuit, for instance, had found the terms unconstitutionally vague, Humanitarian
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knowing or intending that they are to be used in preparation for, or in carrying out, a violation of
section 32 [destruction of aircraft or aircraft facilities], 37 [violence at international airports], 81
[arson within special maritime and territorial jurisdiction], 175 [biological weapons offenses],
229 [chemical weapons offenses], 351 [congressional, cabinet, and Supreme Court assassination
and kidnaping], 831 [nuclear material offenses], 842(m) or (n) [plastic explosives offenses],
844(f) or (i) [burning or bombing federal property or property used in interstate or foreign
commerce], 930(c) [killing or attempted killing of another during an attack on a federal facility
with a dangerous weapon], 956 [conspiracy to murder, kidnap, or maim overseas], 1114 [killing
or attempted killing of federal officers and employees], 1116 [murder or manslaughter of foreign
officials, official guests, or internationally protected persons], 1203 [hostage taking], 1361
[destruction of federal property], 1362 [destruction of communication lines, stations, or systems],
1363 [destruction of property within special maritime and territorial jurisdiction of the United
States], 1366 [destruction of an energy facility], 1751 [presidential assassination or kidnaping],
1992 [wrecking trains], 1993 [terrorist attacks and other acts of violence against mass
transportation systems], 2155 [destruction of national defense material], 2156 [production of
defective national defense material], 2280 [violence against maritime navigation], 2281 [violence
against maritime fixed platforms], 2332 [violence against Americans overseas], 2332a [weapons
of mass destruction], 2332b [multinational terrorism], 2332f [bombing public places or facilities],
or 2340A [torture] of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284)
[sabotage of nuclear facilities or fuel], section 46502 [aircraft piracy] or 60123(b) [destruction of
gas pipeline facilities] of title 49, or any offense listed in section 2332b(g)(5)(B) (except for
sections 2339A and 2339B), or in preparation for, or in carrying out, the concealment of an
escape from the commission of any such violation, or attempts or conspires to do such an act,
shall be fined under this title, imprisoned not more than 15 years, or both, and, if the death of any
person results, shall be imprisoned for any term of years or for life. . .”) (language temporarily
added by section 6603 in italics).
2 18 U.S.C. 2339B(a)(1)(“Whoever knowingly provides material support or resources to a foreign
terrorist organization, or attempts or conspires to do so, shall be fined under this title or
imprisoned not more than 15 years, or both, and, if the death of any person results, shall be
imprisoned for any term of years or for life. . .”).
3 A Review of the Tools to Fight Terrorism Act: Hearing Before the Senate Comm. on
theJudiciary (Senate Hearing), 108th Cong., 2d Sess. (2004)(joint prepared statement of Assistant
Attorney General Daniel J. Bryant and Counterterrorism Section Chief Barry Sabin), available on
July 29, 2005 at [http://judiciary.senate.gov/print_testimony.cfm?id=1301&wit_id=3133].
CRS-3
Law Project v. Reno, 205 F.3d 1130, 1137-138 (9th Cir. 2000);4 “personnel” because the
term might be thought to envelope the efforts of a simple advocate;5 “training” because
the term might be thought to sweep in benign academic instruction;6 and “expert advice
or assistance” because, like “personnel” and “training,” it might be read to include First
Amendment protected pure speech and advocacy.7
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4 In Humanitarian Law Project, the District Court had granted a preliminary injunction which
following the appeal it made permanent, a decision which again a panel of the Ninth Circuit
affirmed, Humanitarian Law Project v. United States Department of Justice, 352 F.3d 382 (9th
Cir. 2003). This second appellate decision was vacated in favor of an en banc decision which
announced that “[w]ith respect to the appellants’ First Amendment challenge to sections 302 and
303 of the Antiterrorism and Effective Death Penalty Act of 1996, we affirm the district court’s
order dated October 2, 2001, for the reasons set out in Humanitarian Law Project v. Reno. In
light of Congress’ recent amendment to the challenged statute, the Intelligence Reform and
Terrorism Prevention Act of 2004, we affirm the judgment in part, as set forth above, vacate the
judgment and injunction regarding the terms ‘personnel’ and ‘training’ . . .” Humanitarian Law
Project v. United States Department of Justice, 393 F.3d 902, 902 (9th Cir. 2004)(internal citations
omitted).
5 “It is easy to see how someone could be unsure about what AEDPA prohibits with the use of the
term ‘personnel,’ as it blurs the line between protected expression and unprotected conduct.
Someone who advocates the cause of PKK could be seen as supplying them with personnel; it
even fits under the government’s rubric of freeing up resources, since having an independent
advocate frees up members to engage in terrorist activities instead of advocacy. But advocacy is
pure speech protected by the First Amendment. In order to keep the statute from trenching on
such advocacy, the government urges that we read into it a requirement that the activity
prohibited be performed ‘under the direction or control’ of the foreign terrorist organization.
While we may construe a statute in such a way as to avoid constitutional questions, we are not
authorized to rewrite the law so it will pass constitutional muster,” 205 F.3d at 1137-138 (internal
citations omitted).
6 “The term ‘training’ fares little better. Again, it is easy to imagine protected expression that falls
within the bounds of this term. For example, a plaintiff who wishes to instruct members of a
designated group on how to petition the United Nations to give aid to their group could plausibly
decide that such protected expression falls within the scope of the term ‘training.’ The
government insists that the term is best understood to forbid the imparting of skills to foreign
terrorist organizations through training. Yet, presumably, this definition would encompass
teaching international law to members of the designated organizations. The result would be
different if the term ‘training’ were qualified to include only military training or training in
terrorist activities,” 205 F.3d at 1138.
7 “[T]he Court concludes that the term ‘expert advice or assistance,’ like the terms ‘training’ and
‘personnel,’ is not sufficiently clear so as to allow persons of ordinary intelligence a reasonable
opportunity to know what is prohibited. Defendants have failed to adequately distinguish the
provision of ‘expert advice and assistance’ from the provision of ‘training’ and ‘personnel’ in a
way that allows the Court to reconcile its prior finding that the terms ‘training’ and ‘personnel’
are impermissibly vague, with a finding that the term ‘expert advice or assistance’ is not.
Furthermore, Defendants’ contradictory arguments on the scope of the prohibition underscore the
vagueness of the prohibition. The ‘expert advice or assistance’ Plaintiffs seek to offer includes
advocacy and associational activities protected by the First Amendment, which Defendants
concede are not prohibited under the USA PATRIOT Act. Despite this, the USA PATRIOT Act
places no limitation on the type of expert advice and assistance which is prohibited, and instead
bans the provision of all expert advice and assistance regardless of its nature. Thus, like the terms
‘personnel’ and ‘training,’ ‘expert advice or assistance’ could be construed to include
CRS-4
Section 6603 supplied a new definition for “training”– “the term ‘training’ means
instruction or teaching designed to impart a specific skill, as opposed to general
knowledge,” 18 U.S.C. 2339A(b)(2). As explained by Justice Department witnesses, “[the
amendment] would also add a specific definition of ‘training’ in response to the Ninth
Circuit’s decision that this term too was unconstitutionally vague. . . As an example, the
court opined that the term conceivably could include teaching members of foreign
terrorist organizations to use international human rights laws to resolve conflicts in a
peaceful manner. [The amendment] would alleviate such concerns by limiting the term
‘training’ to ‘instruction or teaching designed to impart a specific skill, as opposed to
general knowledge’. . .”8 Critics might argue that the attempted fix appears to turn on the
dubious premise that effective advocacy (e.g., peaceful conflict resolution through the use
of human rights laws) is not a skill.
The same might be said of section 6603’s new definition of “expert advice or
assistance” plucked from the Federal Rules of Evidence – “the term ‘expert advice or
assistance’ means advice or assistance derived from scientific, technical or other
specialized knowledge,” 18 U.S.C. 2339A(b)(3).9
In the case of both terms, however, section 6603 may rely on its section 2339B First
Amendment disclaimer clause to answer the concern that the uncertain term might lead to
prosecution of mere advocacy or other First Amendment protected activities – at least
with regard to prosecutions under 2339B: “Nothing in this section shall be construed or
applied so as to abridge the exercise of rights guaranteed under the First Amendment to
the Constitution of the United States,” 18 U.S.C. 2339B(i).10
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unequivocally pure speech and advocacy protected by the First Amendment or encompass First
Amendment protected activities,” Humanitarian Law Project v. Ashcroft, 309 F.Supp.2d 1185,
1200-201 (C.D.Cal. 2004); see also, United States v. Sattar, 272 F.Supp.2d 348, 358-61
(S.D.N.Y. 2003).
8 Senate Hearing, 108th Cong., 2d Sess. (2004)(joint prepared statement of Assistant Attorney
General Daniel J. Bryant and Counterterrorism Section Chief Barry Sabin), available on July 29,
2005 at [http://judiciary.senate.gov/print_ testimony.cfm?id =1301& wit_id=3133]
9 Rule 702 of the Federal Rules of Evidence states, “If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts
or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness
has applied the principles and methods reliably to the facts of the case,” (emphasis added).
10 The decision to limit the disclaimer clause to section 2339B may have been influenced
by the view that in some instances, the uncertainty of the terms used to describe “material
support or resources” may be less troubling in section 2339A because of its more demanding
knowledge requirement (“knowing or intending that [the support or resources] are to be used
in preparation for, or in carrying out, a violation” of one or more expressly designated
federal crimes) than in section 2339B which at least facially has no such knowledge
requirement, compare, United States v. Sattar, 272 F.Supp.2d 348, 356-61 (S.D.N.Y.
2003) (dismissing indictment counts under section 2339B on vagueness grounds), with,
United States v. Sattar, 314 F.Supp.2d 279 (S.D.N.Y. 2004)(declining to dismiss indictment
CRS-5
In any event, section 6603’s new explanation of the scope of the prohibition against
providing “personnel” in section 2339B seems far more specific and to correspond more
closely the courts’ concerns:
No person may be prosecuted under this section in connection with the term
"personnel" unless that person has knowingly provided, attempted to provide, or conspired
to provide a foreign terrorist organization with 1 or more individuals (who may be or
include himself) to work under that terrorist organization's direction or control or to
organize, manage, supervise, or otherwise direct the operation of that organization.
Individuals who act entirely independently of the foreign terrorist organization to advance
its goals or objectives shall not be considered to be working under the foreign terrorist
organization's direction and control. 18 U.S.C. 2339B(h).
Finally, section 6603 addressed an ambiguity inherent in the earlier definition. In its
earlier form, the definition of “material support or resources” in subsection 2339A
included a mixture of tangible things and other things that might more properly be
considered benefits or services (e.g., currency and training). Yet this defining mixture
ended with the catch-all phrase, “and other physical assets,” 18 U.S.C. 2339A)(b)(2000
ed.). Section 6603 responded with an amendment to section 2339A stating that “material
support or resources” covers services and other intangible property, and that the specific
types of property and services mentioned are simply examples.11
Critics might contend that by eliminating the ambiguity in favor of the more sweeping
construction (“property, tangible or intangible, or services including” versus “property . .
or other physical assets”) the amendment is more likely to create than dissipate
vagueness.
The first court to pass upon the constitutionality of section 6603’s clarifying
amendments gave them a mixed grade: section 6603 did cure the vagueness problems
associated with use of the term “personnel,” but the terms “training” and “expert advice
or assistance” remain unconstitutionally vague notwithstanding the amendments in
section 6603, the term “service” which section 6603 added to the definition of prohibited
support or resources is itself unconstitutionally vague, and the “boilerplate” First
Amendment clause does nothing to supply greater clarity, Humanitarian Law Project v.
Gonzales, F.Supp.2d , (C.D. Cal. July 25, 2005).
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counts under section 2339A on vagueness grounds); see also, United States v. Al-Arian, 308
F.Supp.2d 1322, 1334-335 (M.D.Fla. 2004)(noting in response to a vagueness challenge to
section 2339B that, “if this court interprets [the statute] as requiring a specific intent to further the
illegal activities [of the foreign terrorist organization], then no constitutional problems exist”).
11 “(1) the term “material support or resources” means any property, tangible or intangible, or
service, including currency or monetary instruments or financial securities, financial services,
lodging, training, expert advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or
more individuals who may be or include oneself) and, transportation, AND OTHER PHYSICAL
ASSETS, except medicine or religious materials,” 18 U.S.C. 2339A(b)(1).
CRS-6
The First Amendment clause, in the court’s view, is “inadequate to cure potential
vagueness issues because it does not clarify the prohibited conduct with sufficient
definiteness for ordinary people,” id. at____ n.20. By the same token, the court felt that
“for the average person with no background in law,” use of a definition from the Federal
Rules of Evidence would do little to clarify the mysteries of the term “expert advice or
assistance,” id. at__. And “[e]ven as amended [by section 6603], the term “training” is
not sufficiently clear so that persons of ordinary intelligence can reasonably understand
what conduct the statute prohibits,” particularly when the term “easily encompasses
protected speech and advocacy,” id. at___. Since the term “service” is defined to include
“training” and “expert advice or assistance,” they pull the term down with them, id. at__.
Material Support: Knowledge
Section 2339B outlaws “knowing” violations. Narrowly construed, this might serve as
a counterbalance for the suspect reach of the “material support” element. The temporary
amendment, however, added the caveat that, “[t]o violate this paragraph, a person must
have knowledge that the organization is a designated terrorist organization (as defined in
subsection (g)(6)), that the organization has engaged or engages in terrorist activity (as
defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the
organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the
Foreign Relations Authorization Act, Fiscal Years 1988 and 1989), 18 U.S.C.
2339B(a)(1),” 18 U.S.C. 2339B(a)(1).
Justice Department officials urged the adoption of the addition in order to avoid case
law indicating that conviction would require either proof of knowledge of the specific
facts that led to a particular entity being designated a terrorist organization or proof of
knowledge that the assistance provided would be used for terrorist purposes.12 The change
seems to foreclose those problems, but it does little for any vagueness problems.
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12 “Recently, in the same decision in which it held the terms “personnel” and “training” to be
unconstitutionally vague, the Ninth Circuit also held that an individual, to violate the material
support statute, either must have knowledge of an organization’s designation as a foreign terrorist
organization or have “knowledge of the unlawful activities that caused the organization to be so
designated.” Humanitarian Law Project, 352 F.3d at 400. Unfortunately, one could interpret the
latter part of this requirement to mean that a defendant must have knowledge of the facts
contained in the generally classified, internal State Department documents, which form the basis
for the Secretary of State’s decision to designate an organization as a foreign terrorist
organization. Additionally, the United States District Court for the Middle District of Florida
earlier this year adopted an even stricter scienter standard concluding that the government must
prove under the material support statutes that the defendant knew that his actions would further
the illegal activities of an designated foreign terrorist organization. See United States v. Al-Arian,
308 F.Supp.2d 1322 (M.D.Fla. 2004),” Senate Hearings, (joint prepared statement of Assistant
Attorney General Daniel J. Bryant and Counterterrorism Section Chief Barry Sabin).
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Material Support: Overseas Application
As a result of modifications by section 6603, section 2339B describes its overseas
application more explicitly and more expansively than was once the case. It permits
federal prosecution of an act proscribed in section 2339B and committed entirely abroad
by a foreign national with no greater connection to the United States required than that
we have been able to bring the offender to this country for trial, 18 U.S.C.
2339B(d)(1)(D)(“There is jurisdiction over an offense under subsection (a) if . . . (D)
after the conduct required for the offense occurs an offender is brought into or found in
the Untied States, even if the conduct required for the offense occurs outside the United
States”).
In its other modifications to jurisdiction, section 6603 arguably did no more than
articulate more specifically the pre-existing reach of section 2339B. Section 6603
removed the phrase “within the United States or subject to the jurisdiction of the United
States,” from section 2339B(a)(1) and provided a more explicit list of jurisdictional
circumstances in section 2339B(d)(1), i.e., the offense is committed in whole or in part
within the United States; the offender is a U.S. citizen, permanent resident alien, or
habitual U.S. resident; the offense occurs in or affects U.S. interstate or foreign
commerce; the offender is later found or brought to the U.S.; or the offender is an
accomplice or (aider or abetter) or conspirator with respect to a violation of the section by
another over whom the U.S. has subject matter jurisdiction.
Prior to the enactment of section 6603, section 2339B applied to anyone who acted
“within the United States or subject to the jurisdiction of the United States,” when they
provided material support to a foreign terrorist organization, 18 U.S.C. 2339B(a)(1)(2000
ed.). A person “subject to the jurisdiction of the United States” arguably referred to
American citizens, residents of this country, and entities organized under our laws.13
Moreover, if extraterritorial jurisdiction existed over the underlying offense, it was said to
exist over aiding and abetting the commission of the underlying offense or over
conspiracy to commit it.14
Federal Crimes of Terrorism
Section 2339A outlaws providing material support or resources with the intent that
they be used for the commission of certain designated violent crimes (predicate offenses).
Section 6603 enlarged the list of predicate offenses to include any “federal crime of
terrorism” cited in 18 U.S.C. 2332b(g)(5)(B). Section 2339A already covered assistance
rendered for the commission of the following:
18 U.S.C. 32 (destruction of aircraft)
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13 United States v. Brodie, 403 F.3d 123, 128 (3d Cir. 2005); 31 C.F.R. §500.329. Given the
courts’ concerns of the vagueness of section 2339B noted earlier, they may have proven reluctant
to apply the section broadly to the overseas conduct of foreign nationals even those who were
residents of the United States.
14 United States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002); United States v. Felix-Gutierrez, 940
F.2d 1200, 1204-205 (9th Cir. 1991).
CRS-8
18 U.S.C. 37 (violence at international airports)
18 U.S.C. 81 (arson within a federal enclave)
18 U.S.C. 175 (biological weapons offenses)
18 U.S.C. 229 (chemical weapons offenses)
18 U.S.C. 351 (murder, kidnaping, or assault upon Members of Congress, etc.)
18 U.S.C. 831(nuclear material offenses)
18 U.S.C. 842(m) or (n) (plastic explosives offenses)
18 U.S.C. 844(f) or (i)(bombing federal property or property in or affecting commerce)
18 U.S.C. 930(c) (homicide with dangerous weapon in a federal facility)
18 U.S.C. 956 (conspiracy to commit certain violent crimes overseas)
18 U.S.C. 1114 (murder of a federal officer or employees)
18 U.S.C. 1116 (murder of a foreign dignitary)
18 U.S.C. 1203 (hostage taking)
18 U.S.C. 1361 (destruction of federal property)
18 U.S.C. 1362 (destruction of communications property)
18 U.S.C. 1363 (destruction of property within a federal enclave)
18 U.S.C. 1366 (destruction of an energy facility),
18 U.S.C. 1751 (murder, kidnaping or assault of the President, etc.),
18 U.S.C. 1992 (train wrecking)
18 U.S.C. 1993 (violent attacks on mass transit)
18 U.S.C. 2155 (destruction of national defense material)
18 U.S.C. 2156 (production of defective national defense material)
18 U.S.C. 2280 (violence against maritime navigation)
18 U.S.C. 2281 (violence against maritime fixed platforms)
18 U.S.C. 2332 (violence against Americans overseas)
18 U.S.C. 2332a (weapons of mass destruction offenses)
18 U.S.C. 2332b (multinational terrorism)
18 U.S.C. 2332f (bombing public places or facilities)
18 U.S.C. 2340A (torture)
42 U.S.C. 2284 (atomic weapons offenses)
49 U.S.C. 46502 (air piracy)
49 U.S.C. 60123(b) (destruction of gas pipeline facilities)
With the addition of the federal crimes of terrorism not already among the enumerated,
section 2339A now also condemns assistance relating to:
18 U.S.C. 175b (unlawful possession biological materials)
18 U.S.C. 175c (smallpox virus offenses)
18 U.S.C. 1030(a)(1), (5)(A)(i)(certain computer fraud and abuse offenses)
18 U.S.C. 2332g (anti-aircraft offenses)
18 U.S.C. 2332h (radiological dispersal device offenses)
18 U.S.C. 2339 (harboring terrorists)
18 U.S.C. 2339C (financing of terrorism)
42 U.S.C. 2122 (atomic weapons offenses)
49 U.S.C. 46504 (2d sentence) (assault on a flight crew with a dangerous weapon)
49 U.S.C. 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life
by means of weapons, on an aircraft within U.S. jurisdiction)
49 U.S.C. 46506 (homicide or attempted homicide aboard an aircraft within U.S. jurisdiction).
In certain of the earlier versions of the intelligence reform legislation, and in
various free standing bills devoted to a similar purpose, proponents would have
brought any crime of “international or domestic terrorism” (18 U.S.C. 2331) rather
than “any federal crime of terrorism” (18 U.S.C. 2332b(g)(5)(B)) within the circle
of predicate offenses.15 Use of the phrase “international or domestic terrorism”16 has
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15 See e.g., Sec. 2043(a), H.R. 10, 150 Cong. Rec. H8742 (daily ed. Oct. 7, 2004), also in,
H.Rept. No. 108-724, pt. 5, at 37 (2004); Sec. 2(a), H.R. 2858 (Rep. Green (Wis.)); Sec.
CRS-9
generated considerable debate in the context of the USA PATRIOT Act,17 and it may be
for this reason that the more narrowly and precisely defined “federal crime of terrorism”
cross reference was ultimately selected.
Section 6603 also introduced two crimes – 18 U.S.C. 1361 (destruction of federal
property) and 18 U.S.C. 2156 (production of defective national defense material) – into
the family of federal crimes of terrorism. Both crimes were already predicate offenses in
section 2339A, so it was unnecessary to introduce them into section 2332b(g)(5)(B) in
order to bring them within section 2339A.
Of course there are other consequences that flow from including sections 1361 and
2156 within the definition of federal crimes of terrorism under section 2332b(g)(5)(B).
Prior to designation as federal crimes of terrorism, violations of section 2156 were
subject to the general five year statute of limitations, 18 U.S.C. 3282; now they are
subject to an eight year statute of limitations unless they involve the risk of death or
serious bodily injury in which case they may be prosecuted at any time, 18 U.S.C. 3286.
Violations of section 1361 which were already subject to an eight year statute of
limitations, 18 U.S.C. 3286, may now be prosecuted at any time if they involve the risk
of death or serious injury, id.
Prior to designation as a federal crime of terrorism conviction and imprisonment for
violation of either section carried a maximum term of supervised release of not more than
three years; the maximum term is now supervision for life or any term of years following
a conviction for violation of either section that involves the risk of death or serious injury,
18 U.S.C. 3583.
Prior to designation as a federal crime of terrorism, suspects charged with a violation
of either section were entitled to normal bail procedures; now they face the rebuttable
presumption of pre-trial detention, 18 U.S.C. 3142.
________________________________________________________________________
3(a), H.R. 4942 (Rep. Green (Wis.)); cf., Sec. 114(a), S. 2679 (Sen. Kyl).
16 18 U.S.C. 2331(“As used in this chapter – (1) the term ‘international terrorism’ means activities
that – (A) involve violent acts or acts dangerous to human life that are a violation of the criminal
laws of the United States or of any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or of any State; (B) appear to be intended – (i) to
intimidate or coerce a civilian population; (ii) to influence the policy of a government by
intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction,
assassination, or kidnaping; and (C) occur primarily outside the territorial jurisdiction of the
United States, or transcend national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or coerce, or the locale in which
their perpetrators operate or seek asylum . . .
“(5) the term ‘domestic terrorism’ means activities that – (A) involve acts dangerous to human
life that are a violation of the criminal laws of the United States or of any State; (B) appear to be
intended – (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a
government by intimidation or coercion; or (iii) to affect the conduct of a government by mass
destruction, assassination, or kidnaping; and (C) occur primarily within the territorial jurisdiction
of the United States.”)
17 See e.g., United States Department of Justice, Dispelling the Myths: Dispelling Some of the
Major Myths about the USA PATRIOT Act, available on Dec. 17, 2004 at,
[http://www.lifeandliberty.gov/subs/add_myths.htm].
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Prior to designation as a federal crime of terrorism, neither section appeared as a
racketeering (RICO) predicate offense, 18 U.S.C. 1961 (federal racketeering statutes
outlaw the patterned commission of a predicate offense or offenses to acquire or operate
an enterprise in or affecting interstate commerce, 18 U.S.C. 1961-1962). By designation
as a RICO predicate they also become money laundering predicate offenses under
sections 18 U.S.C. 1956, 1957 (18 U.S.C. 1956(c)(7)(A), 1957(f)(3)), a status which
section 1361 but not section 2156 already enjoyed, 18 U.S.C. 1956(c) (7)(D).
Prosecutorial Forbearance
Section 6603 also added an immunity provision under which an individual or entity
who provides “personnel,” “training,” or “expert advice or assistance” in violation of
section 2339B may not be prosecuted if the offense was committed with the prior
approval of the Secretary of State and the Attorney General as long as the support cannot
be used to carry out the various violent acts of terrorism described in 8 U.S.C.
1182(a)(3)(B)(iii) (hijacking, sabotage, hostage taking, assassination and the like), 18
U.S.C. 2339B(j).
The provision is presumably designed to encourage “stings” and other undercover
investigations. It is not clear why it is necessary. No prosecution of 18 U.S.C. 2339B, or
any other federal crime for that matter, is possible without the Attorney General’s
approval, ordinarily exercised through the various United States Attorneys, F.R.Crim.P.
7(c)(indictments must be signed by the attorney for the government). Of course, the State
Department is more likely to be involved in activities abroad.
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Appendix
18 U.S.C. 2332b(g)(5)(B)
* * *
(g) Definitions.– As used in this section . . .
(5) the term “Federal crime of terrorism” means an offense that . . .
(B) is a violation of–
(i) section 32 (relating to destruction of aircraft or aircraft facilities), 37 (relating to violence at
international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 or 175b
(relating to biological weapons), 175c (relating to variola virus), 229 (relating to chemical weapons),
subsection (a), (b), (c), or (d) of section 351 (relating to congressional, cabinet, and Supreme Court
assassination and kidnaping), 831 (relating to nuclear materials), 842(m) or (n) (relating to plastic
explosives), 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing
death), 844(i) (relating to arson and bombing of property used in interstate commerce), 930(c) (relating to
killing or attempted killing during an attack on a Federal facility with a dangerous weapon), 956(a)(1)
(relating to conspiracy to murder, kidnap, or maim persons abroad), 1030(a)(1) (relating to protection of
computers) , 1030(a)(5)(A)(i) resulting in damage as defined in 1030(a)(5)(B)(ii) through (v) (relating to
protection of computers), 1114 (relating to killing or attempted killing of officers and employees of the
United States), 1116 (relating to murder or manslaughter of foreign officials, official guests, or
internationally protected persons), 1203 (relating to hostage taking), (Sec. 6603) 1361 (relating to
government property or contracts), 1362 (relating to destruction of communication lines, stations, or
systems), 1363 (relating to injury to buildings or property within special maritime and territorial
jurisdiction of the United States), 1366(a)(relating to destruction of an energy facility), 1751(a), (b), (c), or
(d) (relating to Presidential and Presidential staff assassination and kidnaping), 1992 (relating to wrecking
trains), 1993 (relating to terrorist attacks and other acts of violence against mass transportation systems),
2155 (relating to destruction of national defense materials, premises, or utilities), (Sec. 6603) 2156 (relating
to national defense material, premises, or utilities), 2280 (relating to violence against maritime navigation),
2281 (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and other
violence against United States nationals occurring outside of the United States), 2332a (relating to use of
weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries),
2332f (relating to bombing of public places and facilities), 2332g (relating to missile systems designed to
destroy aircraft), 2332h (relating to radiological dispersal devices, 2339 (relating to harboring terrorists),
2339A (relating to providing material support to terrorists), 2339B (relating to providing material support
to terrorist organizations), 2339C (relating to financing of terrorism, or 2340A (relating to torture) of this
title;
(ii) sections 92 (relating to prohibitions governing atomic weapons) or 236 (relating to sabotage of
nuclear facilities or fuel) of the Atomic Energy Act of 1954 (42 U.S.C. 2122 or 2284); or
(iii) section 46502 (relating to aircraft piracy), the second sentence of section 46504 (relating to
assault on a flight crew with a dangerous weapon), section 46505(b)(3) or (c) (relating to explosive or
incendiary devices, or endangerment of human life by means of weapons, on aircraft), section 46506 if
homicide or attempted homicide is involved (relating to application of certain criminal laws to acts on
aircraft), or section 60123 (b) (relating to destruction of interstate gas or hazardous liquid pipeline facility)
of title 49.
18 U.S.C. 2339A. Providing material support to terrorists (underlined provisions expire and strike out
provision are revived after December 31, 2006)
(a) Offense.– Whoever provides material support or resources or conceals or disguises the nature,
location, source, or ownership of material support or resources, knowing or intending that they are to be
used in preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m) or
(n), 844(f) or (i), 930(c), 956, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 1993, 2155, 2156,
2280, 2281, 2332, 2332a, 2332b, 2332f, or 2340A of this title, section 236 of the Atomic Energy Act of
1954 (42 U.S.C. 2284), (Sec. 6603) or section 46502 or 60123(b) of title 49, (Sec. 6603) or any offense
listed in section 2332b(g)(5)(B) (except for sections 2339A and 2339B)[,] or in preparation for, or in
carrying out, the concealment of an escape from the commission of any such violation, or attempts or
conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and,
if the death of any person results, shall be imprisoned for any term of years or for life. A violation of this
section may be prosecuted in any Federal judicial district in which the underlying offense was committed,
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or in any other Federal judicial district as provided by law.
(b) Definition.– (Sec. 6603) As used in In this section, –
(Sec. 6603) (1) the term "material support or resources" means (Sec. 6603) any property, tangible or
intangible, or service, including currency or monetary instruments or financial securities, financial services,
lodging, training, expert advice or assistance, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives, personnel (Sec. 6603) (1 or
more individuals who may be or include oneself) and, transportation, (Sec. 6603) and other physical assets,
except medicine or religious materials.
(Sec. 6603) (2) the term "training" means instruction or teaching designed to impart a specific skill,
as opposed to general knowledge; and
(Sec. 6603) (3) th term "expert advice or assistance" means advice or assistance derived from
scientific, technical or other specialized knowledge.
18 U.S.C. 2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities.–
(1) Unlawful conduct.– Whoever, (Sec. 6603) within the United States or subject to the jurisdiction
of the United States, knowingly provides material support or resources to a foreign terrorist organization, or
attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both,
and, if the death of any person results, shall be imprisoned for any term of years or for life. (Sec. 6603) To
violate this paragraph, a person must have knowledge that the organization is a designated terrorist
organization (as defined in subsection (g)(6)), that the organization has engaged or engages in terrorist
activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the
organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign Relations
Authorization Act, Fiscal Years 1988 and 1989).
(2) Financial institutions.– Except as authorized by the Secretary, any financial institution that
becomes aware that it has possession of, or control over, any funds in which a foreign terrorist
organization, or its agent, has an interest, shall–
(A) retain possession of, or maintain control over, such funds; and
(B) report to the Secretary the existence of such funds in accordance with regulations issued by the
Secretary.
(b) Civil penalty.– Any financial institution that knowingly fails to comply with subsection (a)(2)
shall be subject to a civil penalty in an amount that is the greater of--
(A) $50,000 per violation; or
(B) twice the amount of which the financial institution was required under subsection (a)(2) to
retain possession or control.
(c) Injunction.– Whenever it appears to the Secretary or the Attorney General that any person is
engaged in, or is about to engage in, any act that constitutes, or would constitute, a violation of this section,
the Attorney General may initiate civil action in a district court of the United States to enjoin such
violation.
(d) Extraterritorial jurisdiction.– (Sec. 6603) There (1) In General.– There is jurisdiction over an
offense under subsection (a) if –
(Sec. 6603) (A) an offender is a national of the United States (as defined in section 101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22))) or an alien lawfully admitted for permanent
residence in the United States (as defined in section 101(a)((2) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(20))));
(Sec. 6603) (B) an offender is a stateless person whose habitual residence is in the United States;
(Sec. 6603) (C) after the conduct required for the offense occurs an offender is brought into or
found in the United States, even if the conduct required for the offense occurs outside the United States;
(Sec. 6603) (D) the offense occurs in whole or in part within the United States;
(Sec. 6603) (E) the offense occurs in or affects interstate or foreign commerce;
(Sec. 6603) (F) an offender aids or abets any person over whom jurisdiction exists under this
paragraph in committing an offense under subsection (a) or conspires with any person over whom
jurisdiction exists under this paragraph to commit an offense under subjection (a).
(Sec. 6603) (2) Extraterritorial jurisdiction.– There is extraterritorial Federal jurisdiction over an
offense under this section.
(e) Investigations.–
(1) In general.– The Attorney General shall conduct any investigation of a possible violation of this
section, or of any license, order, or regulation issued pursuant to this section.
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(2) Coordination with the Department of the Treasury.– The Attorney General shall work in
coordination with the Secretary in investigations relating to–
(A) the compliance or noncompliance by a financial institution with the requirements of subsection
(a)(2); and
(B) civil penalty proceedings authorized under subsection (b).
(3) Referral.– Any evidence of a criminal violation of this section arising in the course of an
investigation by the Secretary or any other Federal agency shall be referred immediately to the Attorney
General for further investigation. The Attorney General shall timely notify the Secretary of any action
taken on referrals from the Secretary, and may refer investigations to the Secretary for remedial licensing or
civil penalty action.
(f) Classified information in civil proceedings brought by the United States.–
(1) Discovery of classified information by defendants.–
(A) Request by United States.--In any civil proceeding under this section, upon request made ex
parte and in writing by the United States, a court, upon a sufficient showing, may authorize the United
States to–
(i) redact specified items of classified information from documents to be introduced into evidence
or made available to the defendant through discovery under the Federal Rules of Civil Procedure;
(ii) substitute a summary of the information for such classified documents; or
(iii) substitute a statement admitting relevant facts that the classified information would tend to
prove.
(B) Order granting request.– If the court enters an order granting a request under this paragraph, the
entire text of the documents to which the request relates shall be sealed and preserved in the records of the
court to be made available to the appellate court in the event of an appeal.
(C) Denial of request.– If the court enters an order denying a request of the United States under this
paragraph, the United States may take an immediate, interlocutory appeal in accordance with paragraph (5).
For purposes of such an appeal, the entire text of the documents to which the request relates, together with
any transcripts of arguments made ex parte to the court in connection therewith, shall be maintained under
seal and delivered to the appellate court.
(2) Introduction of classified information; precautions by court.–
(A) Exhibits.– To prevent unnecessary or inadvertent disclosure of classified information in a civil
proceeding brought by the United States under this section, the United States may petition the court ex
parte to admit, in lieu of classified writings, recordings, or photographs, one or more of the following:
(i) Copies of items from which classified information has been redacted.
(ii) Stipulations admitting relevant facts that specific classified information would tend to prove.
(iii) A declassified summary of the specific classified information.
(B) Determination by court.--The court shall grant a request under this paragraph if the court finds
that the redacted item, stipulation, or summary is sufficient to allow the defendant to prepare a defense.
(3) Taking of trial testimony.–
(A) Objection.– During the examination of a witness in any civil proceeding brought by the United
States under this subsection, the United States may object to any question or line of inquiry that may
require the witness to disclose classified information not previously found to be admissible.
(B) Action by court.– In determining whether a response is admissible, the court shall take
precautions to guard against the compromise of any classified information, including--
(i) permitting the United States to provide the court, ex parte, with a proffer of the witness's
response to the question or line of inquiry; and
(ii) requiring the defendant to provide the court with a proffer of the nature of the information that
the defendant seeks to elicit.
(C) Obligation of defendant.– In any civil proceeding under this section, it shall be the defendant's
obligation to establish the relevance and materiality of any classified information sought to be introduced.
(4) Appeal.– If the court enters an order denying a request of the United States under this
subsection, the United States may take an immediate interlocutory appeal in accordance with paragraph (5).
(5) Interlocutory appeal.–
(A) Subject of appeal.– An interlocutory appeal by the United States shall lie to a court of appeals
from a decision or order of a district court–
(i) authorizing the disclosure of classified information;
(ii) imposing sanctions for nondisclosure of classified information; or
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(iii) refusing a protective order sought by the United States to prevent the disclosure of classified
information.
(B) Expedited consideration.–
(i) In general.– An appeal taken pursuant to this paragraph, either before or during trial, shall be
expedited by the court of appeals.
(ii) Appeals prior to trial.– If an appeal is of an order made prior to trial, an appeal shall be taken not
later than 10 days after the decision or order appealed from, and the trial shall not commence until the
appeal is resolved.
(iii) Appeals during trial.– If an appeal is taken during trial, the trial court shall adjourn the trial
until the appeal is resolved, and the court of appeals–
(I) shall hear argument on such appeal not later than 4 days after the adjournment of the trial;
(II) may dispense with written briefs other than the supporting materials previously submitted to the
trial court;
(III) shall render its decision not later than 4 days after argument on appeal; and
(IV) may dispense with the issuance of a written opinion in rendering its decision.
(C) Effect of ruling.--An interlocutory appeal and decision shall not affect the right of the
defendant, in a subsequent appeal from a final judgment, to claim as error reversal by the trial court on
remand of a ruling appealed from during trial.
(6) Construction.--Nothing in this subsection shall prevent the United States from seeking protective
orders or asserting privileges ordinarily available to the United States to protect against the disclosure of
classified information, including the invocation of the military and State secrets privilege.
(g) Definitions.– As used in this section–
(1) the term "classified information" has the meaning given that term in section 1(a) of the
Classified Information Procedures Act (18 U.S.C. App.);
(2) the term "financial institution" has the same meaning as in section 5312(a)(2) of title 31, United
States Code;
(3) the term "funds" includes coin or currency of the United States or any other country, traveler's
checks, personal checks, bank checks, money orders, stocks, bonds, debentures, drafts, letters of credit, any
other negotiable instrument, and any electronic representation of any of the foregoing;
(Sec. 6603) (4) the term "material support or resources" has the same meaning as in section 2339A
(including the definitions of "training" and "expert advice or assistance" in that section);
(5) the term "Secretary" means the Secretary of the Treasury; and
(6) the term "terrorist organization" means an organization designated as a terrorist organization
under section 219 of the Immigration and Nationality Act.
(Sec. 6603) (h) Provision of Personnel. – No person may be prosecuted under this section in
connection with the term "personnel" unless that person has knowingly provided, attempted to provide, or
conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include
himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or
otherwise direct the operation of that organization. Individuals who act entirely independently of the
foreign terrorist organization to advance its goals or objectives shall not be considered to be working under
the foreign terrorist organization's direction and control.
(Sec. 6603) (i) Rule of Construction. – Nothing in this section shall be construed or applied so as to
abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United
States.
(Sec. 6603) (j) Exception. – No person may prosecuted under this section in connection with the
term[s] "personnel", "training", or "expert advice or assistance" if the provision of that material support or
resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of
the Attorney General. The Secretary of State may not approve the provision of any material support that
may be used to carry out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and
Nationality Act).