The Holy Land Foundation: Misinformation about Material Support

By Michael Kraft

In the recent trial of the Holy Land Foundation and some of the other trials of groups or persons charged with providing for foreign terrorist organizations, a frequent assertion made on behalf of the defendants is that the contributions were for humanitarian purposes, not terrorist attacks.

This theme was stretched to its limits by Professor David Cole of Georgetown University, a prolific defender of groups accused of violating the 1996 law (the Antiterrorism and Effective Death Penalty Act of 1996) that makes it a criminal offense to knowingly provide funds or other forms of material support to groups designated by the Secretary of State as a Foreign Terrorist Organization.

In a Washington Post op-ed article ““Anti-Terrorism on Trial” printed Wednesday, October 24, Prof. Cole seriously misrepresents the Material Support provisions of claiming that “for all practical purposes the law imposes guilt by association.”

As I pointed out in a brief letter to the editor that the Washington Post printed today, money is fungible. Congress made clear its position when it enacted the Antiterrorism and Effective Death Penalty Act of 1996 and inserted Section 301 (7), which states that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contributions to such an organization facilitate that conduct.”

Furthermore, in the case of some groups such as Hamas, the clinics or schools they do run also help them recruit supporters and potential operatives. The money for this purpose is more important than the relatively small amount needed to purchase weapons.

In the Holy Land Foundation trial, which ended as a mistrial, the group was accused of contributing to subgroups of Hamas. Secretary of State Albright formally designated that Palestinian group as a foreign terrorist organization in 1997 because of its suicide bombings and other attacks directed against civilians in Israel and the West Bank. It has been well-publicized for nearly a decade now that the U.S. government has labeled Hamas a terrorist organization because of its attacks aimed at non-combatants.

The 1996 law is similar in concept to earlier legislation, dating back to the 1970’s, cutting off U.S. foreign assistance for terrorist-supporting states, such as Iran and Syria, even though they build schools and roads and perform other “humanitarian” functions. In short, if a country or group supports or is involved in terrorism, we should not allow business as usual with that entity and can impose sanctions.

In an effort to accommodate humanitarian contributions, the original material support and terrorist designation legislation the Clinton administration submitted to Congress in January 1995 contained a provision allowing contributions to the designated groups for humanitarian purposes if the organization could demonstrate that the contribution(s) actually went for such uses. As a State Department counterterrorism official then specializing in legislative affairs, I participated in the drafting of the provision with State Department and Justice Department lawyers and in discussions with Congressional staff. But the proposal was rejected out of hand during discussions by a Senate Judiciary Committee aide to then Republican Senator Spence Abraham of Michigan, which has a large Arab population. The staffer said that the groups were not about to open up their books for inspection and rejected it. So, the provision was dropped during the Senate Judiciary Committee’s consideration of the bill.

Prof. Cole also asserts that the mistrial in the Holy Land Foundation case suggests that the administrative processes for designating foreign terrorist organizations are flawed because there are no hearings or statement of reasons and thus these steps are taken “on the basis of secret evidence.” (This is a loaded reference to classified intelligence information that sometimes is used, usually to protect the sources.) However Hamas actually publicly takes “credit” for its attacks, so only the most obtuse would doubt its involvement in terrorist activities even though it also may run schools and medical clinics.

Furthermore, the 1996 law requires the State Department to prepare an extensive administrative record of a terrorist group’s activities and to consult with the Attorney General and Secretary of Treasury before it is formally designated. Congress is then notified in advance on a confidential basis. This provision law allows a group or its American supporters to challenge the designation in the US Court of Appeals for the District of Columbia. Several groups have taken their designations to the court, although not Hamas. Professor Cole ignores the procedure and the fact that the court has upheld the Secretary of State. There also is a detailed interagency process for making the decisions for freezing the assets of groups or individuals whose assets are frozen under executive procedures pursuant to long-standing International Emergency Economics Power Act authorities and some of them have successfully appealed.

Although Professor Cole asserts that the Holy Land Foundation case and others that the Justice Department has lost or suffered mistrials suggest the laws are flawed. However, according to figures obtained from the Justice Department in August, 16 persons have been convicted and 32 pleaded guilty to material support offenses since the law was enacted in April, 2006. Most of the cases were brought since 9/11.

Another common misstatement about the Material Support law is the assertion that they are anti-Muslim and/or intended to hurt legitimate charitable contributions. First all, there are legitimate channels, such as the Red Crescent that can be used to provide assistance to Palestinians or other Muslim recipients.

The Material Support provisions were actually drafted partly in response to a dramatic attack against Palestinians in Hebron. In the early 1990’s, it became evident to the State Department and Justice Department that some terrorist groups such as the Abu Nidal Organization were increasingly raising funds through their own means, such as front companies or front charities, instead of depending upon Libya, Iraq and other state sponsors of terrorism. The State Department Counterterrorism office began looking at additional ways of curb terrorism funding.

A key turning event in the effort to curb contributions to terrorist groups was the February 25, 1994 shooting of 29 Palestinians at a Hebron mosque by Dr. Baruch Goldstein, an American who immigrated to Israel and had been involved in the extremist Kahane movement. That group was launched by Rabbi Meir Kahane, the founder of the Jewish Defense League in New York who later emigrated to Israel. (He was assassinated in 1990 by an Egyptian gunman at a speaking engagement in a New York City hotel.) The second series of events was a string of six Palestinian terrorist attacks against Israelis in late 1994, including three bus bombings that killed 53 persons and wounded dozens of others.

As described in my forthcoming book co-edited by Prof. Yoneh Alexander, The Evolution of U.S. Counterterrorism Policy (Praeger Press), these events prompted the formation of two interagency working groups of legislative specialists from the State, Justice, and Treasury departments. One working group began examining existing laws to see if they could be used quickly against terrorist groups. Meanwhile a parallel group, including some of the same officials, also began looking at ways to strengthen or develop new U.S laws to counter terrorist organizations.

These working groups, in retrospect, marked a new emphasis in U.S. counterterrorism efforts -going after the money and targeting terrorist organizations that were largely self supporting and do not depend upon state sponsors for their funds or other forms of support. Their efforts resulted in two major actions.

On January 23, 1995, the Clinton Administration issued Executive Order Number 12947 freezing the assets subject to U.S. jurisdiction of 12 groups whose support of violence were determined to be threatening the Middle East peace process. The so-called “dirty dozen” included ten Arab groups and two small Israeli-based groups affiliated with the Kahane movement. This action was taken under the existing authority of the International Emergency Economics Powers Act (IEEPA), a broad statute that gives the president broad authority, including the freezing of assets upon the declaration of a national emergency.

Meanwhile the second working group completed new draft legislation that the interagency group had started drafting during 1994 and it was introduced in February 2005. The key provisions aimed at curbing the flow of money and other resources to terrorist groups made it a criminal offense for American persons to knowingly provide funds and other material support to groups designated as foreign terrorist organizations by the Secretary of State. The concept paralleled the Export Administration Act of 1979 that established the basis for designating countries that supported terrorism, cutting off their foreign assistance, military exports and imposing controls of export licenses for equipment that could be used for supporting military or terrorism activities as well as civilian purposes.

Before the new bill was actually introduced, representatives of the Arab-American community were briefed, at my suggestion, by State Department, Justice Department and FBI officials. Even before they read the bill, the Arab-American community representatives opposed the bill and denounced it publicly. Ironically the denunciations may have had the unintended effect of making at least some donors more cautious and slowing down contributions to legitimate as well as dubious charities even before the bill was enacted.

Prior to the final enactment of the antiterrorism act in April, 1996, Congress included provisions that provided for judicial review of the designations of foreign terrorist organizations and requirements that the designations be subject to review every two years. Thus, there was a great deal of sensitivity to civil liberties concerns in the drafting and reworking of the legislation during its year and a half journey through Congress.

It is important to maintain a balance, which is not always easy, between security concerns and civil liberties. It is also important to understand that it is also a civil liberty for civilians to be able to get on a bus or enter a restaurant or office building without being blown up by suicide bombers from Hamas or any other terrorist group.

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