§2339A. Providing material support to terrorists
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), or section 46502 or 60123(b) of
title 49, 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. . . .
(b) Definition. – In this section, the term “material support or resources” means
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, transportation, and other physical assets, except medicine or
religious materials.
18 U.S.C.A. §2339A (West. 2000 & Supp. 2004). The USA PATRIOT Act of 2001 amended
both this section and 18 U.S.C.A. §2339B (West 2000 & Supp. 2004) to increase the maximum
term of imprisonment from 10 years to 15 years. Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub.
L. No. 107-56, §810(c),(d), 115 Stat. 272, 380. After this article was prepared, legislation was
adopted that amends some aspects of §2339A and other statutes that punish material support
of terrorism. Some of the issues raised by the recent amendments are discussed in the Epilogue
at the end of this article.
§2339B. Providing material support or resources to designated foreign terrorist
organizations
(a) Prohibited activities. –
(1) Unlawful conduct. – Whoever, 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. . . .
(g) Definitions. – As used in this section . . .
(4) the term “material support or resources” has the same meaning as in
section 2339A; . . .
(6) the term “terrorist organization” means an organization designated as
a terrorist organization under section 219 of the Immigration and Nationality
Act.
5
The Material Support Terrorism Offenses: Perspectives
Derived from the (Early) Model Penal Code
Norman Abrams*
INTRODUCTION
Two innovative federal crimes, 18 U.S.C. §2339A 1 and §2339B, 2 have
been frequently charged in prosecutions since September 11, 2001, becoming
JOURNAL OF N ATIONAL S ECURITY L AW & P OLICY [Vol. 1:5
- In 2003, a Justice Department official testified that the government had brought
“support” charges against 61 individuals. Hearing Before the Subcomm. on Oversight and
Investigations, House Comm. on Financial Services, 108th Cong. 1 (2003) (prepared statement
of Alice Fisher, Deputy Ass’t Attorney General); see also Robert M. Chesney, The Sleeper
Scenario: Terrorism-Support Laws and the Demands of Prevention, 42 HARV. J. L EGIS.
(forthcoming 2005). - The statutory phrase is “material support or resources.” I use the phrase “material
support” as a shorthand for the full statutory phrase. - The earliest reference to conspiracy as a prosecutor’s darling is probably in Judge
Learned Hand’s concurrence in Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925) (“that
darling of the modern prosecutor’s nursery”). - Most of the huge output of scholarly treatment of issues arising out of the current war
on terrorism has focused on procedural and constitutional issues, such as the long-time
incarceration of individuals as enemy combatants and the prospect of prosecution in military
tribunals. Several articles deal with the material support offenses, but these focus either on
constitutional issues arising out of the scope of application of §2339B, see, e.g., Robert M.
Chesney, Civil Liberties and the Terrorism Prevention Paradigm: The Guilt by Association
Critique, 101 M ICH. L. REV. 1408, 1452 n.122 (2003) (review essay), or procedural-
constitutional issues arising from the process for designating a foreign terrorist organization.
See, e.g., Randolph N. Jonakait, A Double Due Process Denial: The Crime of Providing
Material Support or Resources to Designated Foreign Terrorist Organizations, 48 N.Y.L. S CH.
L. REV. 125 (2004).
key elements in the government’s anti-terrorism efforts. 3 Section 2339A
makes it a federal crime knowingly to provide material support or resources4
in preparation for or in carrying out specified crimes of terrorism. Section
2339B prohibits knowingly providing material support to a foreign terrorist
organization. These statutes bear some resemblance to criminal liability for
complicity, but they are being used like a new kind of conspiracy charge, the
familiar “prosecutor’s darling.”5 Unlike conspiracy, they are framed with a
mens rea of knowledge rather than of purpose, and because they are
substantive offenses, they can be combined with traditional conspiracy
charges. These provisions can be used to impose punishment for conduct
remote from the commission of criminal harms, often conduct involving
minimal and outwardly non-criminal acts.
While some judicial decisions have found constitutional infirmities in
specific terms of these new crimes, Congress undoubtedly can constitutionally
legislate such offenses. The courts should understand how these crimes are
innovative, and they should take these insights into account in construing the
statutes. They also should pay attention to the long-term implications of the
extensive use of these two new substantive offenses both for the federal
criminal law and, potentially, for the criminal law of the several states as
well. 6
These two new offenses may be the most significant doctrinal
developments in the federal criminal law since the enactment of RICO and the
other organizational crime statutes, the money laundering statutes, and the
criminal forfeiture laws. They show how each new federal criminal “war” –
from Prohibition through the wars on organized crime, on illegal drugs, and
now on terror – has spawned new laws or legal doctrines designed to expand
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