Pre-Designation Argument Is Smokey

By Bill West

The ongoing trial in US District court in Dallas against former officials of the Holy Land Foundation (HLF) has once again surfaced defense arguments related to pre-designation of Hamas and other groups by the US Government as "officially" designated terrorist organizations. Essentially, these arguments posture that any support to or dealing with such organizations before the "official" US government terrorist designation is not illegal. It is such official designation that launches legal prohibitions against support and connections and business dealings, so goes the argument. This argument has been attempted in a number of other Federal terrorism and terror support cases.

As those arguments may relate to specific terror support statutes wherein the designation date applies, there may be some merit. However, where an indictment relates to a more encompassing criminal enterprise not necessarily linked to designation dates, activities connected to terror groups pre-designation may certainly be relevant. A particular activity that has been identified in several terrorism support prosecutions is how various US-based groups and organizations and their officials arranged for the travel into the US of terror group leaders and operatives to speak at fund-raising and morale-boosting and propaganda-spreading conferences within the United States. Quite arguably, this is a strong version of providing support to terrorists and their organizations. Defense attorneys would argue this would not be illegal during a pre-designation period.

Under the US Immigration and Nationality Act (INA), there has long existed a specific felony statute under Title 8, US Code, Section 1327. This provision relates to the "Aiding or assisting certain aliens to enter" the United States. Those "certain aliens" are, essentially, criminal aliens and aliens who are security threats as defined by another provision of the INA, Title 8, US Code, Section 1182. The law has been updated in recent years to more specifically define aliens involved in terrorism and terrorism support activities. However, even the older version of the statutes, circa the late 1980s when Hamas was created, contained wording related to aliens who, "seek to enter the United States solely, principally, or incidentally to engage in activities which would be prejudicial to the public interest, or endanger the welfare, safety, or security of the United States"; or who, "probably would, after entry, (A) engage in activities which would be prohibited by the laws of the United States related to espionage, sabotage, public disorder, or in other activity subversive to the national security...". Certainly terrorism and terrorism support would fit into one of those categories.

Terrorism and terrorist activities clearly existed well before "designation" dates. They are the very reason terrorist designation occurs. Where evidence existed that persons brought into the US by US-based organizations to speak at conferences for fund-raising and other support activities were, in fact, Hamas members or other terrorist-linked operatives in pre-designation time periods, and the US-based organizations and their officials had knowledge of this, an arguable violation of 8 USC 1327 could apply. The substance of the violation goes to the nature of the actions committed by the persons involved, unrelated to any specific official terrorism designation date.

Since 1996 (pre-dating many terror designations), there have been terrorism related enhancements to certain visa and immigration document fraud and naturalization fraud felony statutes, as well. These are found at Title 18, US Code, Sections 1425, 1426, 1427, 1542, 1543, 1544 and 1546. These also became predicate offenses for RICO violations. Interestingly, the statute of limitations provision for the naturalization fraud statutes is ten years instead of the standard five applicable to most Federal felonies. While any particular Federal prosecution may or may not include any of the previously noted violations, many of these statutes are generally free of any "designation" time period issues. They certainly provide a defensive argument against the defense argument of pre-designation.

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