Incorrect Intent: the Unavailing yet Undying Material Support Defense

On September 13, 1994 the United States enacted section 2339A to Title 18 of the United States Code, which criminalized the provision of material support intended to commit acts of terrorism. Two years later, Congress revised 2339A and enacted 2339B, which criminalized the provision of material support to organizations that engage in terrorism and/or are designated as Foreign Terrorist Organizations [FTOs], rather than to specific acts of terrorism.

In criminal law, the question of what intent (or scienter) a defendant must possess is a critical one, and where the material support statutes are concerned, determining the requisite intent engendered several revisions to the statutes and high profile cases.

The Justice Department’s Criminal Resource Manual states that 2339A “requires only that the supplier of the material support have knowledge of its intended use” but “does not require that the supplier also have whatever specific intent the perpetrator of the actual terrorist act must have to commit one of the specified offenses.”

Nor does 2339B require a specific intent to further the terroristic goals of a designated organization. As the Supreme Court held in Holder v. Humanitarian Law Project, “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” More to the point, the Supreme Court pointed out that “Congress plainly spoke to the necessary mental state for a violation of §2339B, and it chose knowledge about the organization’s connection to terrorism, not specific intent to further the organization’s terrorist activity.”

Yet the unavailing ‘specific intent’ defense somehow lives on even with a reasonably recent (June 21, 2010) Supreme Court ruling to the contrary. On September 21, 2011, the Second Circuit Court of Appeals ruled on this issue, among others, in United States v. Al Kassar.

The case involved three defendants, Monzer al Kassar, Luis Felipe Moreno Godoy, and Tareq Mousa al Ghazi, who had all been convicted “for conspiring to kill U.S. officers, to acquire and export anti-aircraft missiles, and to knowingly provide material support to a terrorist organization. Al Kassar and Godoy were also convicted of conspiring to kill U.S. citizens and of money laundering.” Al Kassar was sentenced to 30 years in prison, while Godoy and al Ghazi were each sentenced to 25 years.

The convictions stemmed from a sting operation conducted by the Drug Enforcement Agency in which Al Kassar was told that DEA agents were members of the Revolutionary Armed Forces of Colombia (FARC) - a designated foreign terrorist organization - seeking to purchase arms. The DEA release that followed Al Kassar’s extradition to the US for trial in 2008 specified that he “agreed to sell to the FARC millions of dollars worth of weapons, including thousands of machine guns, millions of rounds of ammunition, rocket-propelled grenade launchers ("RPGs"), and surface-to-air missile systems ("SAMs").”

The government demonstrated at trial that, “in the presence of Godoy and al Ghazi, al Kassar provided the DEA with schematics of SAMs and explained how the missiles could be used to shoot down American helicopters;” al Ghazi also admitted to agents that “he knew that FARC was a terrorist organization, which planned to use the weapons to kill Americans.”

Despite the damning evidence, the defendants’ appeal of the material support charge basically asked the Court to ignore precedent and narrowly construe the statute to apply only in cases where “the defendant … intend[s] that his aid support the terrorist aims of the organization.”

The Court responded that the statute’s intent requirement is twofold, namely “that the aid be intentional and that the defendant know the organization he is aiding is a terrorist organization or engages in acts of terrorism.” However, regarding the defendants’ specific intent demand, the Court stated that “[t]his argument is foreclosed by Holder v. Humanitarian Law Project.”

There will probably always be individuals and organizations with deep-seated ideological objections to the material support statutes’ scienter requirement. For attorneys attempting to successfully defend against a material support charge or conviction, however, trying to write in a specific intent requirement continues to be a fool’s errand.

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