Factsheet: Material Support

Material support refers to types of humanitarian and First Amendment activity that have been criminalized by the U.S. government. Both pre-and post-9/11, statutory restrictions were placed on providing support, including humanitarian aid, expert advice, and political advocacy, to any foreign entity that the Executive branch decides to designate as a “terrorist” group. Both the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, better known as the Patriot Act, contain provisions which make it a crime to provide "material support" to designated “terrorist” organizations.

The Center for Constitutional Rights (CCR) contends that these material support provisions violate the First Amendment as they criminalize activities like distribution of literature, engaging in political advocacy, participating in peace conferences, training in human rights advocacy, and donating cash and humanitarian assistance, even when this type of support is intended only to promote lawful and non-violent activities.

CCR’s principal complaint is that the material support statute imposes guilt by association by punishing moral innocents not for their own culpable acts, but for the culpable acts of the groups they have supported. The statute does not require that organizations must show intent to further terrorist or other illegal activity to be charged. CCR also believes that the statute is unconstitutionally vague and that the Secretary of State's power to designate groups is too broad, giving the Executive too much discretionary power to label groups as "terrorist" and turn their supporters into outlaws.

Material Support in Legal Cases

The material support statute has played a major role in some of the government's more dubious terrorism prosecutions in the wake of 9/11. John Walker Lindh was charged with providing "material support" when the government lacked sufficient evidence to pursue treason charges against him.

Other high-profile post-9/11 material support cases include:

• The prosecutions of the Lackawanna Six, accused of training at terror camps in Afghanistan;
• Sami Omar Al Huassayn, an Idaho student accused of running a web site where radical Islamists posted materials (he was acquitted by a jury);
• Ahmed Abu Ali, a Virginian held in Saudi Arabia at the behest of the United States for more than a year and extradited to face vague charges of material support only after a court order;
• and radical criminal defense attorney Lynne Stewart.

In all these cases, the defense claimed the evidence was too thin to support more substantive terrorism charges, and that the "material support" allegations were overly vague.

CCR Cases Challenging Material Support

CCR’s Humanitarian Law Project cases consist of three cases, one filed pre-9/11 and the other two after, that challenge the government’s material support statutes, including the AEDPA and the Patriot Act.

The lead plaintiff in these cases is the Humanitarian Law Project (HLP), a Los Angeles-based non-profit with consultative status to the United Nations that advocates for the peaceful resolution of armed conflicts and for worldwide compliance with humanitarian law and human rights law. HLP wanted to assist the Kurdistan Workers' Party (PKK) with conflict resolution and human rights monitoring in Turkey.

Also represented in the cases are several Tamil-American organizations and two individuals seeking to provide medical assistance to tsunami victims and expertise to improve healthcare in war-ravaged northeast Sri Lanka, which would require working with the Liberation Tigers of Tamil Eelam (LTTE), an advocate for self-determination of the Tamils in Sri Lanka.

Both the PKK and the LTTE have been designated as “terrorist” organizations by the State Department.

In light of the government’s current fervor to use the label of terrorism as a brand for groups and organizations that are not toeing the line on U.S. foreign policy, these challenges to the criminalization of what have long been understood to be constitutionally protected activities are vitally important.