Material support was first outlawed by the Clinton-era Antiterrorism and Effective Death Penalty Act of 1996, but has been amended, clarified and expanded several times since, including in the USA Patriot Act.

In Terrorism and the Constitution, David Cole and his co-author, DDF Vice President Jim Dempsey, explain what happened:

… after lying virtually dormant for its first six years of existence, the material support law has since 9/11 become the Justice Department's most popular charge in antiterrorism cases. The allure is easy to see: convictions under the law require no proof that the defendant engaged in terrorism, aided or abetted terrorism, or conspired to commit terrorism. But what makes the law attractive to prosecutors - its sweeping ambit - is precisely what makes it so dangerous to civil liberties.

In a devastating blow for free speech and association, a recent Supreme Court decision (Holder v. Humanitarian Law Project, June 21, 2010), the Court upheld material support provisions that prohibit otherwise protected free speech. The Court said that congress could prohibit conflict resolution, humanitarian aid and other groups from providing training or expert advice to terrorist groups, even when that assistance is aimed at preventing violence.

Read below for examples of how material support provisions hamper civil liberties.

Holder v. Humanitarian Law Project

Obviously it is a criminal act to provide weapons, money or other material support to Al Qaeda or other terrorist organizations. But what if you want to teach a terrorist group how to lay down their arms and resolve conflict peacefully? Isn't that political speech protected by the First Amendment?

On February 23, the Supreme Court heard oral arguments in Holder v. Humanitarian Law Project (HLP), an important case challenging the Constitutionality of the material support provisions in the USA Patriot Act. The case has been well-covered by NPR and other outlets, but to briefly summarize: HLP is a thirty year old human rights organization that has, since 1991 advocated for peace and human rights for Turkey's Kurdish minority. One of the groups HLP regularly worked with was the Kurdistan Workers Party (PKK), providing training and assisting them in human rights advocacy. But when the PKK was designated by the U.S. as a terrorist group, that peace-building work became illegal because it was deemed "material support of terrorism."

David Cole, a longtime ally of DDF, represented HLP before the Supreme Court. He argued that the material support provisions of the Patriot Act violate the First Amendment because they outlaw speech and censor advice and training on entirely peaceful and legal activities. "It is core political speech on issues of public concern; it is advocating only lawful, peaceable activities. This court has never upheld the criminal prohibition of lawful speech on issues of public concern." Cole also made a distinction "between aid that is intended to further lawful activity and aid that is intended to further illegal activity."

But on June 21, 201, the Supreme Court upheld those material support provisions in a 6-3 ruling.

Kay Guinane and Suraj K. Sazawal at the Charity and Security Network noted how nonsensical the ruling is: "Imagine a school where the principal's rules prevent a teacher from telling a bully to stop picking on another child". That is essentially what the Supreme Court told U.S. peacebuilding groups in its June 21, 2010 decision in Holder v. Humanitarian Law Project (HLP)".

David Cole, who argued the case for HLP, said of the ruling, "The Supreme Court has ruled that human rights advocates, providing training and assistance in the nonviolent resolution of disputes, can be prosecuted as terrorists. In the name of fighting terrorism, the Court has said that the First Amendment permits Congress to make human rights advocacy and peacemaking a crime. That is wrong".

The Supreme Court's decision puts many peacebuilding programs which should be protected by the First Amendment, into jeopardy. President Jimmy Carter, founder of the Carter Center, commented on the ruling:

We are disappointed that the Supreme Court has upheld a law that inhibits the work of human rights and conflict resolution groups. The 'material support law' - which is aimed at putting an end to terrorism - actually threatens our work and the work of many other peacemaking organizations that must interact directly with groups that have engaged in violence. The vague language of the law leaves us wondering if we will be prosecuted for our work to promote peace and freedom.

Analysts have noted that President Carter's work for fair elections in Lebanon would fall under material support, since he worked with Hezbollah, a designated terrorist group.

There is a silver lining to this terrible ruling: it has shined a light on how problematic material support provisions are. DDF will be working with our partners in the Charity and Security Network to press Congress to conduct investigations and hold hearings to look into the assumptions behind the current law and press for legislation to allow humanitarian aid workers and peace-builders do their work without the threat of criminal charges.

Gaza and Material Support

The fact that Hamas (a designated terrorist group) controls Gaza presents problems for U.S. charities who want to provide aid to the residents of Gaza. The hoops they must jump through to prove they are not providing material support to Hamas are daunting and counterproductive. So it was not surprising when, after the Gaza Freedom Flotilla was raided by the Israel Defense Forces killing 9 people, Representative Brad Sherman (D-CA) called for the arrest of any Americans involved in the flotilla. "The Antiterrorism and Effective Death Penalty Act of 1996 makes it absolutely illegal for any American to give food, money, school supplies, paper clips, concrete or weapons to Hamas or any of its officials," Sherman said. "And so I will be asking the Attorney General to prosecute any American involved in what was clearly an effort to give items of value to a terrorist organization." The aid was intended for the people of Gaza, not Hamas, but Sherman's diatribe does illustrate the broad reach of the material support provisions.

Fahad Hashmi is a U.S. citizen charged with providing material support to al Qaeda. His case really illustrates how dangerous the material support laws can be:

Material support laws are the black box of domestic terrorism prosecutions, a shape-shifting space into which all sorts of constitutionally protected activities can be thrown and classified as suspect, if not criminal. Their vagueness is key. They criminalize guilt by association and often use political and religious beliefs to demonstrate intent and state of mind.
- Jeanne Theoharis (www.progressive.org)

In 2004, while living in London, Hashmi let an acquaintance stay with him for two weeks. The acquaintance, Junaid Babar, stored luggage containing raincoats, ponchos and socks in Hashmi's apartment and borrowed Hashmi's cell phone on occasion. Babar later delivered the raincoats and socks to al Qaeda, and the government says that he was calling terrorists on Hashmi's phone.

These are the basics of the case against Hashmi. The government says it has more evidence, but it's classified so Hashmi can't see it. In addition to secret evidence, the government will be allowed to introduce Hashmi's political and religious speech and activities in court as evidence of his intent

The terms of Hashmi's confinement, under Special Administrative Orders (SAMs) raise additional concerns. He's been held in solitary confinement for almost three years while awaiting trial, held in a small cell for 23 hours per day and kept under constant video surveillance. He is allowed to see no one but his lawyers. SAMs were originally designed to keep jailed leaders of organized crime syndicates from being able to give instructions to their networks, but have been used increasingly in these alleged terrorism cases. Since Hashmi has not been convicted of anything, nor charged with any violent offense, the harsh terms of his confinement don't seem to make sense.

Muslim and anti-war activists in New York have staged weekly vigils to demand that the SAMs be dropped. His trial is scheduled for the end of April

UPDATE: On the eve of his trial, Fahad Hashmi who was held in solitary confinement for three years awaiting trial pled guilty to one count of material support. His decision came after the judge in the case agreed to allow an anonymous jury trial. Hashmi's lawyers called this "a clear attempt to influence the jury by creating a sense of fear for their safety and to paint Mr. Hashmi as already guilty."