It is challenging to discern exactly what kinds of transactions or interactions with listed groups are legal and what is not, as the U.S. definition of material support is not limited to tangible goods or money and the humanitarian exemption is very narrow. To make matters more complicated, material support is defined somewhat differently in counterterrorism law than immigration law, and Executive Orders imposing sanctions on listed groups do not define it at all. The 2010 Supreme Court case Holder v. Humanitarian Law Project further muddied the waters.
The primary prohibition on material support of terrorism is in the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which prohibits material support to Foreign Terrorist Organizations (FTOs) designated by the Secretary of State. The AEDPA definition of material support which, in addition to prohibiting provision of funds, weapons and the like, also prohibits technical advice and assistance, training, personnel and services. It was amended in 2004 to provide some level of clarity to the definitions of these non-tangible forms of support. USAID refers to it in the anti-terrorism certification its grantees must sign.
In addition to the FTO list, the material support prohibition also applies to a broader list of terrorist entities and individuals designated by the Department of Treasury under sanctions laws, primarily the International Emergency Economic Powers Act (IEEPA). Executive Orders issued under authority of various sanctions statutes have also included a prohibition on providing material support, without defining it. In the absence of a definition, the AEDPA definition is generally referred to for sanctions compliance purposes. Treasury’s Specially Designated Nationals (SDN) list combines sanctioned persons and entities from the various sanctions programs, including terrorists (such as the Specially Designated Terrorist (SDT) and Specially Designated Global Terrorist (SDGT) lists, created by Executive Orders), drug kingpins and money launderers, and is much larger than the FTO list.
A U.S. Department of Justice guidance document on permissible forms of communication with members of listed terrorist groups that are intended to turn them away from violence seems, on its face, to be at odds with the U.S. Supreme Court’s Humanitarian Law Project decision, leaving NPOs uncertain about the potential liability of their work abroad. The guidance document notes that “The Government’s position on this is issue clear: the material support statutes do not prohibit legitimate, independent efforts to counter violent extremism.” It notes that the “Department of Justice has never prosecuted an individual or group for a legitimate effort to persuade others not to engage in violence…”
This brief focuses on the AEDPA definition, although NPOs should be aware that the Immigration and Nationality Act (INA) also has a bar on material support, which is different from and somewhat broader than the AEDPA definition. It is sometimes used outside the immigration context.