On The Front Lines
TRI Urges Appeals Court to Consider Chilling Impact of Material Support Laws on Humanitarian Work
NEW ORLEANS, La. -- A diverse group of U.S. organizations including The Rutherford Institute have filed a friend-of-the-court brief in the U.S. Court of Appeals for the Fifth Circuit arguing that individuals may not be convicted under a statute barring "material support" to "designated terrorist groups" if they have not knowingly supported any designated terrorist group. Under the lower court's ruling, a charity that carefully checks all government lists of "designated terrorists" and avoids supporting any of them may still be convicted if the government later shows that, unbeknownst to the donor, its grantee was connected to another designated group.
The brief limited its arguments to the charges involving support to non-designated groups, because if upheld, the lower court's decision would render thousands of foundations and charities in the United States vulnerable to criminal prosecution. It was filed by 20 foundations, charities, peace groups and constitutional rights organizations, including The Rutherford Institute, the 1750-member Council on Foundations, The Carter Center (founded by former President Jimmy Carter), the Rockefeller Brothers Fund, Christian Peacemaker Teams, and Grassroots International.
A copy of the brief in U.S. v el Mezain et al is available here.
"While cutting off support of terrorist activity is an important and legitimate part of the United States' counter-terrorism strategy, it must not do so at the risk of undermining constitutional freedoms--especially as they relate to humanitarian efforts intended to further only lawful, peaceful, and nonviolent activities," said John W. Whitehead, president of The Rutherford Institute.
The organizations filing the friend of the court brief argue that before a group can be convicted of material support of terrorism the law requires proof it had knowledge that an unlisted foreign charity is controlled by a listed terrorist group. As the brief points out, the trial judge "relied upon an erroneous and dangerously expansive interpretation of the material-support statute. That interpretation, if upheld on appeal, would jeopardize the legitimate work of countless foundations and charities throughout the U.S. It would mean that a charity or foundation could be prosecuted under the material-support statue even if it exercised rigorous due diligence that ensured that it did not support any entity on the government's list of designated organizations."
It goes on to argue that "the judge's jury charge violates fundamental due process principles requiring fair notice of what conduct is prohibited" as well as the plain meaning of the statute. The brief says the trial court's jury charge "turned an already expansive statute into a trap that can catch donors unawares, exposing them to criminal prosecution even where they have been effective in ensuring that none of their aid went to a designated organization. If upheld, it would interfere with and deter fully legitimate, nonviolent, humanitarian assistance in many parts of the world." The brief was filed by Prof. David Cole of Georgetown University Law Center and J. Craig Jett of Burleson, Pate & Gibson in Dallas.
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