On June 21, 2010, Chief Justice Roberts, in a 6-3 opinion for the U.S. Supreme Court, determined that the Humanitarian Law Project, a U.S. group wanting to provide support for humanitarian and political activities of the Partiya Karkeran Kurdistan (PKK) and Liberation Tigers of Tamil Eelam (LTTE) could not do so without being terrorists. The humanitarian aid group alleged that their First Amendment right to Freedom of Speech and Association as well as their Fifth Amendment right under the Due Process Clause had been violated. This was based on the current prohibition under 18 U.S.C. § 2339B of providing four types of material support-“training,” “expert advice or assistance,” “service,” and “personnel.”
The Court held that the Constitution does not preclude the government from criminalizing speech or other advocacy in favor of designated Foreign Terrorist Organizations (FTO), even if the intent is to provide “peaceful or humanitarian” aid to the group. Both groups involved had been designated as FTO’s in 1997. Knowledge about the organizations’ connection to terrorism rather than specific intent was determined to lead to a violation. It was concluded that the statute overcame the “vagueness” challenge and that “Foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct”.
Supporters of this view argue that any support provided to an armed group is “material” if there was knowledge that the group committed any terrorist acts. However, the immigration context is quite different in meaning than the criminal or civil statutes as anyone providing food or shelter to a terrorist is thus guilty of terrorism. In Matter of S-K, an applicant providing $1,100 Singapore dollars (around $685 U.S.) to the Chin National Front in Burma was determined to have provided “material support” to terrorism. Even providing food and shelter in minimal quantity for meetings unrelated to terrorist activity also constituted “material support” in Singh-Kaur v. Ashcroft.
Material support has been defined to include the provision of “a safe house, transportation, communication, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training…for the commission of a terrorist activity.” Circuit courts have adopted an expansive view of the material support bar. The Department of Homeland Security (DHS) has asserted that all types of assistance are included, irrespective of whether they were independently “material.”
The DHS maintains a position that even “de minimus” support or support by children can constitute material support. Thus, even doing laundry, giving medical care or cooking services could be sufficient to trigger the bar under material support.
As of July 2009, over 7,200 applications were on hold for permanent residency (green cards) for persons who had been granted asylum by non-violent opposition to draconian, human rights-abusing governments. This is a result of the DHS failing to implement procedures to allow these applications to be adjudicated. Ironically, children and spouses of individuals who voluntarily participated in opposition groups without any terrorist activity and have been granted safe haven in the U.S. by a court, now find themselves on hold for years in this country. These cases are Tier III, unlike the groups of LTTE and PKK, which are Tier I, and thus designated as Foreign Terrorist Organizations. A Tier III organization can be a group of two or more individuals, whether organized or not, and may contain a subgroup that may have been determined by a government official to have engaged in “terrorist activity.”
Terrorism is tragic, and our country must protect itself against those who have committed such acts, but it is a specious argument to label all persons so broadly on the fringes of these categories as terrorists.
Danielle L. C. Beach is the Managing Partner of Beach-Oswald Immigration Law Associates, PC, in Washington, D.C.