May 2013 article in the Harvard National Security Journal outlines how the “material support” statute has led some humanitarian organizations to scale back or withdraw assistance programs in conflict zones where aid is often most needed.  After providing background on the law and the way it has been enforced, it makes recommendations for reforms, including prosecutorial guidelines to formalize safe harbors to allow for humanitarian activities in these types of places.

Reducing aid to global hot spots, the report says, may “undermine the very counterterrorism policies the statute is meant to advance by discouraging aid in high-risk areas.” This was the case in the summer 2011 when groups were reluctant to provide food and other aid to the nearly two million at-risk Somalis trapped on al-Shabaab- controlled territory.  Fearing prosecution for any diversion of humanitarian resources to al-Shabaab, a group classified as a terrorist organization by the U.S., many aid groups chose to focus their humanitarian programs in places outside of the militant’s group reach, meaning the regions hardest hit by the famine were largely left without any international assistance.

The article notes the most effective approach to change would be formal amendment of the statute, but notes that “This approach, however, appears to be politically infeasible, at least in the short term.” It then goes on to recommend administrative changes that can be made by the Department of Justice,  emphasizing amending prosecutorial guidelines to formalize safe harbors for aid that meets specific criteria.  It then offers procedural approaches to instituting these substantive guidelines.   They include:

  • Clarify and Publicize Guidelines Concerning Types of Aid

Adding to the existing statutory exemptions for medicine and religious materials, the government should identify specific types of permissible aid, including international human rights law training and food and shelter, delivered in the event of a humanitarian crisis.

  • Clarify and Publicize Guidelines Concerning Recipient Organizations

“Assist individual private donors by providing them with a clear list of “safe” recipient organizations through which they could channel charitable donations.”

  • Clarify and Publicize a Specific Intent Requirement

Prosecutors should “refrain from prosecuting those individuals who, although they provided material support to a terrorist organization as defined by the statute, did not intend to further terrorist aims, thereby creating a specific intent requirement.”

  • Develop New Procedural Options

    1. Amend the Statute

    “a statutory amendment, which would conclusively narrow the current scope of liability, and provide reassurance to humanitarian organizations and donors, thereby effectively addressing the chilling effect on aid…”  For example, the Secretary of State has the authority to exempt certain peacebuilding activities from the prohibition on material support of terrorism (See:  18 USC 2339(B)(j))

    1. Publish an Advisory Memorandum or Statement

    This would publicize and memorialize the government’s prosecutorial discretion policy for material support prosecutions, thus providing security to those already highly unlikely to be prosecuted.

    1. Amend Internal Guidelines

    Make amendments to the U.S. Attorneys’ Manual or establish new internal guidelines that would “provide a forum to articulate the government’s position without sacrificing prosecutorial flexibility or encountering the legislative roadblocks that would be involved in pursuing an amendment to the material support statute itself.”