The "Material Support" Test for Terrorism

By Jonathan Winer

In his speech on Iraq last night, President Bush describing Iran as providing "material support for attacks on U.S. troops," and identified Syria and Iran as providing terrorists with staging areas. The phrase "material support" is an interesting one, as the "material support" language comes straight from legislation pertaining to terrorism that makes it a federal crime to provide "material support" to terrorists.

The Antiterrorism and Effective Death Penalty Act defines “material support” for terrorists as providing “currency or monetary instruments of financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications, equipment, facilities, weapons, lethal substances, explosives, personnel transportation, and other physical assets, except medicine or religious materials."

Title 18 of the U.S. Code has long provided criminal penalties for persons who provide material or financial support for terrorism and for foreign terrorist organizations (FTOs). The PATRIOT Act enhanced the criminal penalties and expanded jurisdiction over the crime of providing support for terrorism. The provisions of Title 18, as amended by the PATRIOT Act, include “persons” (including, again, both individuals and organizations) known or suspected to be engaged in terrorism. Further, the relevant provisions of Title 18, as amended by the PATRIOT Act, impose fines and terms of imprisonment of up to 15 years for any entity that provides material support or resources knowing or intending that they be used in terrorist acts or by FTOs. Title 18 also provides a specific civil cause of action against those who violate the criminal prohibitions against providing support for terrorism.

So is providing "material support for attacks on U.S. troops" the same as providing "material support for terrorists?" If it is, then the U.S. government has in essence declared all those in Iran directing the activity to be in violation of U.S. criminal law.

Taken in context, it appears President Bush is making precisely this assessment, publicly throwing a big shot across the bow to Iran and one only a touch smaller to Syria.

With what consequences? There are a lot of options here for the U.S., from undertaking more regulatory action of the kind taken this week against Bank Sepah, and leveraging that multilaterally, and continuing all the way to federal criminal indictments against foreign officials who provided the "material support" to terrorists, backed by the threat of extraordinary renditions. And that's just on the criminal justice side. There are also always other options.

Saber rattling or something more?

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