“Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B.”

It’s a legal overview of two federal laws that allow the U.S. government to prosecute people and organizations for providing support to terrorism.

The important thing to understand right away is that you do not necessarily have to participate in terrorism, commit violence, or even agree with a terrorist organization’s ideology to potentially violate these laws. Providing certain kinds of assistance can itself be a federal crime.

I’ll break down what the laws actually prohibit, what counts as support, what the differences are between the two statutes, and where the legal boundaries are.

1. There are two separate laws

Although they are closely related, they target two different kinds of assistance.

The distinction is important.

Section 2339A: The government must establish that you knew or intended your assistance to be used in connection with a qualifying crime.

For example: Someone knowingly supplies explosives to a group because they intend the group to use them in a terrorist bombing.

Section 2339B: The government does not have to prove that you intended to help the organization carry out a terrorist attack. It must establish that you knowingly provided material support to an organization covered by the law and knew the relevant facts about its terrorist designation or activities.

For example: Someone knowingly sends money to a designated foreign terrorist organization, even if they claim the money was intended for the organization’s nonviolent activities.

That second provision is particularly significant because it doesn’t require prosecutors to prove that the particular donation was intended to finance violence.

2. What actually counts as material support?

This is probably the most important section of the report.

The law defines material support extremely broadly. It includes virtually any tangible or intangible property or service.

Examples include:

• Money and financial donations.

• Banking and financial services.

• Housing or lodging.

• Transportation.

• Weapons and explosives.

• Communications equipment.

• Safe houses.

• False identification documents.

• Specialized technical or professional assistance.

• Training and instruction.

• Providing personnel or individuals to work for an organization.

There are two notable statutory exceptions:

• Medicine.

• Religious materials.

In other words, the law doesn’t just target people supplying weapons or financing attacks.

Someone providing technical expertise, transportation, housing, or other services could potentially fall under these statutes.

An important distinction: The law’s broad definition doesn’t mean that every interaction with someone associated with a terrorist organization is illegal. The other requirements of the applicable statute still have to be met.

3. Does the person have to support terrorism ideologically?

No.

This is one of the more consequential aspects of § 2339B.

The government doesn’t have to establish that someone:

• Agrees with the organization’s ideology.

• Wants the organization to commit terrorist attacks.

• Personally supports terrorism.

• Intends their particular contribution to facilitate violence.

Instead, the government must establish that the person knowingly provided material support and knew the relevant facts about the organization’s terrorist status or activities.

This is why someone might theoretically face prosecution for providing assistance they believe is humanitarian or otherwise nonviolent.

The Supreme Court addressed this issue in Holder v. Humanitarian Law Project (2010).

The case involved Americans who wanted to provide training and assistance to designated foreign terrorist organizations on peaceful activities, including using international law to resolve disputes.

The Supreme Court upheld the application of § 2339B to the coordinated assistance at issue.

The Court distinguished between independently expressing support for an organization and providing services to that organization.

That distinction is critical.

4. What about freedom of speech?

The report spends considerable time addressing the First Amendment.

The government cannot simply criminalize someone’s political opinions, religious beliefs, or independent advocacy because those opinions happen to favor a terrorist organization.

For example, there is an important legal distinction between:

• Expressing support for a political movement.

• Publishing an article defending an organization’s political positions.

• Criticizing the U.S. government’s foreign policy.

• Advocating for a designated organization’s removal from a terrorist list.

And:

• Providing the organization with money.

• Coordinating services with its leadership.

• Training its members.

• Providing personnel or specialized assistance.

The first group generally involves constitutionally protected expression. The second can constitute prohibited material support.

The Supreme Court’s ruling in Humanitarian Law Project established that coordinated services to a designated organization aren’t automatically protected just because the services are intended to advance peaceful objectives.

Essentially: You can express your opinions about an organization, but you cannot necessarily provide that organization with assistance just because you believe your assistance serves a peaceful purpose.

5. What if someone is only attempting to provide support?

They don’t necessarily have to succeed.

Both statutes cover:

• Actually providing material support.

• Attempting to provide material support.

• Conspiring with others to provide material support.

This is significant because the government doesn’t necessarily have to wait until money changes hands or assistance is delivered.

For example, someone who enters into an agreement to provide assistance to a terrorist organization could potentially be prosecuted even if the assistance is never delivered.

An attempt also requires more than simply thinking about committing a crime. Generally, prosecutors must establish criminal intent and a substantial step toward completing the offense.

6. What are the penalties?

Other consequences can include substantial fines and, in certain circumstances, civil lawsuits brought by victims of international terrorism.

The penalties shown are maximums, not automatic sentences.

7. Does this apply outside the United States?

Yes, potentially.

The report explains that § 2339B contains provisions allowing prosecution for certain conduct occurring outside the United States.

For example, U.S. citizens can potentially be prosecuted for providing material support to foreign terrorist organizations even when the assistance is provided overseas.

Section 2339A also has potential extraterritorial application, depending on the underlying offense involved.

This means these laws aren’t necessarily limited to activities taking place on American soil.

8. Who decides which organizations are terrorist organizations?

For purposes of the formal Foreign Terrorist Organization designation discussed in § 2339B, the Secretary of State makes the designation under the Immigration and Nationality Act.

The designation process is important because it gives the organization a specific legal status under U.S. law.

However, there’s another interesting wrinkle: § 2339B also refers to organizations that the defendant knows engage or have engaged in terrorism or terrorist activity. The statute isn’t limited to simply knowing that an organization appears on the formal designation list.

My overall takeaway

There are five major things I’d take away from this report:

1. Material support is incredibly broad. It isn’t limited to giving money or weapons. It can include transportation, housing, technical expertise, training, and other services.

2. You don’t have to participate in violence. Someone can potentially violate these laws by providing assistance without personally committing or participating in a terrorist attack.

3. Intent matters, but differently under each law. Under § 2339A, the government must establish knowledge or intent that the assistance will be used in connection with a qualifying crime. Under § 2339B, the government doesn’t have to establish that you intended to further the organization’s terrorist activities.

4. Humanitarian intentions aren’t automatically a defense. Even assistance intended to accomplish peaceful objectives can be prohibited when coordinated with a designated foreign terrorist organization.

5. Political and religious expression are not automatically illegal. Expressing support for a group, discussing its ideology, criticizing American foreign policy, or advocating for a political cause is fundamentally different from providing material support.

One particularly important distinction

I want to emphasize something because I think it’s easy to misunderstand these laws.

Consider three hypothetical situations:

The third example is particularly important. The law doesn’t generally allow individuals to bypass the material-support prohibition by deciding that their contribution will only benefit the organization’s supposedly legitimate activities.

There are separate humanitarian exceptions and authorization mechanisms in certain circumstances, but they aren’t a blanket exemption for private donations.