Order Code RS22222
August 16, 2005

CRS Report for Congress
Received through the CRS Web

Material Support of Terrorists and Foreign
Terrorist Organizations: Expiring
Amendments in Brief

Charles Doyle
Senior Specialist
American Law Division
Summary
Section 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004
amends 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
the proposed H.R. 3199, as passed by the House, and S. 1389, as passed by the Senate,
the amendments would become permanent. In their present form the amendments,
found in section 6603 of the act, temporarily: (1) 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; (2)
add a more explicit knowledge requirement to section 2339B; (3) expand the
extraterritorial jurisdiction reach of section 2339B; (4) enlarge the list of federal
crimes of terrorism, 18 U.S.C. 2332b(g)(5); (5) add the enlarged list 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 (6) preclude prosecution for certain violations
committed with the approval of the Secretary of State and concurrence of the Attorney
General (e.g., stings).

This is an abbreviated version of CRS Report RL33035, Material Support of
Terrorists and Foreign Terrorist Organizations: Sunset Amendments, without the
footnotes, appendix, and some of the citations to authority found in the longer, parent
report.

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 material support or resources for the
commission of any of several designated federal crimes that a terrorist might commit or
attempting or conspiring to such support or assistance; section 2339B outlaws providing
material support or resources to a designated foreign terrorist organization or attempting
or conspiring to do so.

________________________________________________________________________________________________________________________________________________________
Congressional Research Service ˜ The Library of Congress

---

CRS-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. 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 Law Project v. Reno, 205 F.3d
1130, 1137-138 (9th Cir. 2000); “personnel” because the term might be thought to
envelope the efforts of a simple advocate; “training” because the term might be thought
to sweep in benign academic instruction; and “expert advice or assistance” because like
“personnel” and “training” might be read to include First Amendment protected pure
speech and advocacy.

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’. . .” 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).

Section 6603 may rely on its First Amendment disclaimer to answer the objection that
the uncertainty of the two terms could chill or 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).

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
(whomay 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

---

CRS-3

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.

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).

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 counter balance 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

---

CRS-4

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. The change
seems to foreclose those problems, but it does little for any vagueness problems.

Material Support – Overseas Application: As a result of modifications by section 6603,
section 2339B now 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 does no more than
articulate more specifically the pre-existing reach of section 2339B. 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. 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.

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.

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)
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)

---

CRS-5

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.
Use of the phrase “international or domestic terrorism” has generated considerable debate
in the context of the USA PATRIOT Act, 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

---

CRS-6

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. 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.

---