On Oct. 26, 2010, a diverse group of U.S. organizations filed a friend-of-the-court brief in the U.S. Court of Appeals for the Fifth Circuit arguing that individuals may not be convicted under a statute barring “material support” to “designated terrorist groups” if they have not knowingly supported any designated terrorist group. Under the lower court’s ruling, a charity that carefully checks all government lists of “designated terrorists” and avoids supporting any of them may still be convicted, if the government later shows that, unbeknownst to the donor, its grantee was connected to another designated group. The case, U.S. v el Mezain et al, involves the 2008 convictions of leaders of the now-defunct Holy Land Foundation (HLF) on a variety of charges.

The brief limited its arguments to the charges involving support to non-designated groups, because if upheld, the lower court’s decision would render thousands of foundations and charities in the United States vulnerable to criminal prosecution. It was filed by 20 foundations, charities, peace groups and constitutional rights organizations, including the 1750-member Council on Foundations, The Carter Center (founded by former President Jimmy Carter), the Rockefeller Brothers Fund, Christian Peacemaker Teams, and Grassroots International. The Dallas-based HLF and its leaders were convicted of aiding five local charities in the West Bank and Gaza that are not on any government lists of terrorist organizations, but which the prosecution said were controlled by Hamas, which is listed. The full list of signatories is here. The current appeal involves the leaders, while the Holy Land Foundation, which was unrepresented at trial, is pursuing a separate appeal.

The Department of Treasury (Treasury) shut down HLF in December 2001, accusing it of providing financial support to Hamas, which was listed as a Foreign Terrorist Organization in 1995. HLF appealed, arguing that its due process rights were violated by use of secret evidence and lack of opportunity to defend itself. The court rejected the appeal,[1] noting that its review was limited to considering whether Treasury’s actions were “arbitrary and capricious.” HLF’s evidence was never admitted for consideration.
In 2004 the Justice Department indicted HLF and its top officials, charging them with money laundering and providing material support to Hamas.[2] In the criminal trial the government acknowledged that all HLF’s funds went for aid through charities that are not on government lists, but that the donations violated the material support law because HLF’s local partner charities (zakat committees) were controlled by Hamas. On Oct. 22, 2007, one HLF leader was acquitted, and the jury deadlocked on the remaining 197 charges. In the retrial, prosecutors dropped charges from 197 counts to 108 counts and a new judge presided. In November 2008 the HLF leaders were found guilty and were subsequently sentenced to long prison terms.


The Problem of Unlisted Groups
During the second trial Robert McBrien from Treasury’s Office of Foreign Assets Control, a new witness, told the jury that designation of the zakat committees to a government list of proscribed groups is not necessary for donations to be prohibited. He said that keeping up with front groups “is a task beyond the wise use of resources.” Instead, he said Treasury targets umbrella groups. He did not explain Treasury’s continuing failure to designate these groups. According to AlterNet, the same zakat committees have received aid from the International Red Cross and the U.S. Agency for International Development.

Trial Court’s Jury Instructions: No Knowledge Requirement

Under the trial court’s instructions to the jury, it could convict if it found that a defendant knowingly provided support to a local zakat committee, even though the zakat committee was not designated, if it found that the zakat committee was controlled by Hamas. However, the jury was  not required to find that the defendants knew that fact, or even should have known that fact.” .” This instruction exceeded the proposed instruction from the prosecution, which would have required the defendant “knowingly provided, or attempted to provide, the material support alleged…” (emphasis added)
Friend of the Court Brief Argues Due Process Demands Knowledge Requirement
The organizations filing the friend of the court brief argue that before a group can be convicted of material support of terrorism the law requires proof it had knowledge an unlisted foreign charity is controlled by a listed terrorist group. Instead, the trial judge “relied upon an erroneous and dangerously expansive interpretation of the material-support statute. That interpretation, if upheld on appeal, would jeopardize the legitimate work of countless foundations and charities throughout the U.S. It would mean that a charity or foundation could be prosecuted under the material-support statue even if it exercised rigorous due diligence that ensured that it did not support any entity on the government’s list of designated organizations.” It goes on to argue that “the judge’s jury charge violates fundamental due process principles requiring fair notice of what conduct is prohibited” as well as the plain meaning of the statute.
The brief says the trial court’s jury charge “turned an already expansive statute into a trap that can catch donors unawares, exposing them to criminal prosecution even where they have been effective in ensuring that none of their aid went to a designated organization. If upheld, it would interfere with and deter fully legitimate, nonviolent, humanitarian assistance in many parts of the world.”
The brief makes both constitutional and statutory arguments. First, it says under fundamental principles of due process, “Criminal statutes must provide fair notice of what they prohibit.”   But as interpreted by the trial court, the material support statute “fails to provide even the most basic requisites of fair notice, and leaves ordinary citizens to guess at whether any charitable assistance might lead to a criminal prosecution.” In addition, it notes that the material support statute itself has a knowledge requirement, saying at 18 USC 2339B(a)(1) that to be guilty “an individual must (1) support a ‘designated foreign terrorist organization,’ and (2) do so knowing that the groups was designated or engaged in ‘terrorist activity.”
The groups note that their interpretation of the statute “would not hamper the government’s efforts to staunch support to designated terrorist organizations. The government has authority to, and frequently does, designate multiple organizations as aka.’s for a designated group, and to designate organizations that are ‘controlled by’ other designated groups….The government can also prosecute individuals who use non-designated intermediaries in order to knowingly support designated groups.”
The brief was filed by Prof. David Cole of Georgetown University Law Center and J. Craig Jett of Burleson, Pate & Gibson in Dallas.


Organizations Signing the Brief:


  • American Friends Service Committee
  • The Atlantic Philanthropies
  • The Carter Center
  • Christian Peacemaker Teams
  • The Constitution Project
  • Council on Foundations
  • Fund for Constitutional Government
  • Global Greengrants Fund
  • Grantmakers Without Borders
  • Grassroots International
  • The Humanitarian Law Project
  • Islamic Relief USA
  • The Nathan Cummings Foundation
  • OperationUSA
  • Peace Appeal Foundation
  • Rockefeller Brothers Fund
  • The Rutherford Institute
  • Samuel Rubin Foundation
  • Tikva Grassroots Empowerment Fund
  • Urgent Action Fund for Women’s Human Rights

[1] Holy Land Foundation for Relief and Development v. John Ashcroft, et.al. , 219 F. Supp. 2d 67.

[2] Indictment available online at http://freedomtogive.com/files/HLF_indmt.pdf.