July 21, 2014

III. Broad Charges: Material Support Cases

Of the 494 individuals prosecuted in the United States for terrorism or terrorism-related crimes between September 11, 2001, and December 31, 2011, 225 were charged under one of 23 federal statutes directly related to international terrorism. The remaining 269—more than half of the total—were charged under some other statute. They are included as “terrorism-related” in government reports because the Justice Department’s National Security Division claims that the cases have some link to international terrorism.[234]

In tandem with the expansion of the FBI’s investigatory capabilities after the September 11 attacks, Congress amended its laws criminalizing the provision of material support or resources to terrorists or designated terrorist organizations to reach a broader range of conduct, leading to prosecutions that raise concerns about infringements on the rights to freedom of expression and association. At the same time, prosecutors have increasingly pursued material support charges against defendants. Indeed, the largest share of convictions in terrorism-related cases since September 11 is based on material support charges.

Changes to the Material Support Statute

The original incarnation of what is known as the material support statute, 18 USC §§ 2339A and B, was enacted in 1994 as a response to the 1993 World Trade Center bombing. It was intended to prohibit supply of weapons, physical goods, money and training to terrorists and terrorist organizations.[235] It made explicit exceptions for humanitarian assistance[236] and traditionally protected expression.[237] Amendments to the statute in 1996, in response to the Oklahoma City bombing, narrowed the humanitarian assistance exception,[238] and removed restrictions on speech-based investigation.[239] The 1996 statute also expanded the scope of the statute to enable prosecution for material support to “designated foreign terrorist organizations” (FTOs) under 18 USC § 2339B.

In the wake of the September 11 attacks, Congress passed the controversial Uniting and Strengthening America by Providing the Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which dramatically expanded the material support law. It broadened the scope of prohibited “material support” to include “expert advice or assistance” to a designated FTO, substantially—and vaguely—widening the range of activities that qualified as support for terrorism.[240] It also provided the same maximum punishment for attempts and conspiracies to provide material support as for actually and directly providing material support.[241] In 2004, partially in response to litigation, Congress clarified some of the definitional language in the material support statutes.[242] Then in 2010, in Holder v. Humanitarian Law Project, a divided Supreme Court upheld the application of the law, including its criminalizing of peace and human rights-promoting activities provided to a designated terrorist organization, if coordinated with that group.[243]

The law empowers prosecutors to prosecute conduct that might seem otherwise innocuous— translating books and publishing them online, or storing ponchos and socks, as described in two cases below—for the ostensible purpose of preventing terrorism. While US courts have interpreted this law as criminalizing conduct only—and not as infringing on freedom of association—many scholars disagree. David Cole, a law professor who also served as counsel for plaintiffs in Holder v. Humanitarian Law Project, has written, “what good is it to have a right to join or associate with a group if the government can make it a crime to do anything whatsoever on the group’s behalf?”[244] One former prosecutor told us that in the interest of security, the material support statute allows a prosecutor to act well before any harm is imminent: “From the perspective of a doctor who’s identified a cancer, you don’t want to take a chance. You take a bigger margin.”[245]

Our research suggests that the breadth of the material support laws has led federal prosecutors to levy criminal charges for religious or political conduct itself, or as the primary evidence of criminal activity.

Waves of Material Support Prosecutions

Prior to September 11, 2001, section 2339A was used twice and section 2339B was used four times.[246] But the expanded material support law resulted in a substantial increase in prosecutions. Based on our analysis of 494 cases the Department of Justice categorizes as terrorism or terrorism-related since September 11, 2001, the largest share of convictions—168 out of 917, or 18 percent of all convictions—were for charges under the material support statute (see chart in Appendix - D).[247]

The post 9/11 prosecutions occurred in two waves. First, in the years immediately following the expansion, the Justice Department pursued cases based on a “deep reservoir” of information about political activists and charitable organizations obtained through intelligence collected prior to September 11, according to a former assistant United States Attorney.[248] In some cases the alleged conduct took place prior to 2001—even decades before. The intelligence was newly available to the Justice Department as a result of the USA PATRIOT Act, passed in 2002, which knocked down the “wall” between the FBI and the Justice Department and permitted much greater sharing between intelligence gathering and prosecution.[249] The Justice Department moved quickly to prosecute based on that evidence, and publicly touted the indictments as successes in the war on terrorism. As noted above, while the Justice Department had only prosecuted a total of six material support charges in the six years before 9/11, federal prosecutors charged 92 material support cases in the first three years thereafter.[250]

The trend upward continued with a second generation of cases, beginning around 2005, which illustrate how the material support statutes offer law enforcement an alternative to resource-heavy sting operations.[251] In some of these cases, the government has used evidence of political speech to link individuals to terrorist organizations and prosecuted seemingly non-criminal conduct.

The following cases raise concerns about the use of material support charges:

Case of Sami al-Arian

In 2003, Dr. Sami Al-Arian, a professor of engineering at the University of Southern Florida, was charged with 53 counts of supporting Palestinian Islamic Jihad (PIJ), including charges of providing PIJ with material support. Al-Arian’s case was one of the first material support prosecutions after September 11, 2001. DOJ reviewed almost 21,000 hours of wiretapped telephone recording amassed mostly pursuant to warrants under the Foreign Intelligence Surveillance Act (FISA). The crux of the prosecution’s case centered on phone conversations Al-Arian had with PIJ prior to its designation as an FTO in 1995[252]; prosecutors then relied heavily on evidence of Al-Arian’s political views to convince the jury to convict him without establishing a link to any specific act of violence.[253]

Ultimately, after a trial lasting more than five months, the jury was unable to reach a unanimous verdict. Rather than face the prohibitive costs of another trial, Al-Arian decided to negotiate a plea agreement. In April 2006, he pleaded guilty to one count of conspiracy to make and receive contributions to PIJ.[254] The judge departed from the government’s recommendation in the plea agreement and sentenced Al-Arian to the maximum possible sentence under the agreement. Under that sentence, he was set to be released in April 2007.[255] After a series of contempt charges in Virginia, Al-Arian was released to house arrest in September 2008. On June 27, 2014, the government moved to dismiss the contempt charges against Al-Arian, and the motion was immediately granted. The government indicated its intention to proceed with his deportation pursuant to a May 2006 removal order.[256]

Holy Land Foundation Prosecution

The FBI began investigating the Holy Land Foundation (HLF) long before the September 11 attacks. Although the case against HLF centered around its charitable contributions in the Occupied Palestinian Territories that allegedly assisted Hamas, much of the conduct at issue took place before Hamas was designated as a Foreign Terrorist Organization in 1997.[257]

The HLF, founded in 1989, was the largest Muslim charity in the US in 2001, raising around $13 million a year. It provided funds directly to zakat committees in Palestine—so-called because zakat, or charity, is one of the Five Pillars of Islam. The investigation of HLF began in 1993 after US citizen Muhammad Salah was arrested in Israel for his alleged role in Hamas.[258] In 1993, Salah told Israeli interrogators that HLF provided support to Hamas, and the FBI began investigating HLF and other Muslim charities.[259] After word leaked to the media that HLF was being investigated for ties to Hamas, its members repeatedly sought to confirm that their charitable activities complied with US law. HLF hired former congressman John Bryant as its attorney. Bryant repeatedly spoke to people at the Israeli embassy, the FBI, the State Department and elsewhere; no one would provide him with information about whether HLF was violating US law, including whether it should stop funding any particular group.[260] Bryant described the prosecution as “a terrible, terrible tragedy.”[261] He believed the case was politically motived, and described it as “grossly unjust.”[262]

The defendants were never accused of directly funding terrorist organizations or terrorist attacks nor were the individual zakat committees accused of doing so. [263] Rather, the prosecution’s case rested on the following argument: HLF provided funds to Palestinian charities; the charities implemented Hamas’ social programs, the social programs helped win the “hearts and minds” of the Palestinian people, and that support enabled Hamas’ military wing to carry out terrorist attacks. Former US Consul-General in Jerusalem Ed Abington called this the “house of cards” theory of Hamas financing. [264]

The first trial ended in a hung jury; all the defendants were convicted in a second trial.

The defendants could be prosecuted in this manner because the material support statutes do not require any showing that a defendant intended his or her support to be used for an illegal end. Instead, the statute as interpreted by the Supreme Court bars any support—even that aimed at encouraging compliance with international law—on the theory that it is fungible and frees up resources that terrorists can then use for criminal ends.[265] To be convicted of material support, an individual need not have intended to commit any underlying crime or even know how the terrorist group might use the support, though the support must be provided in coordination with the terrorist group.[266] The Justice Department has even argued that Congress in effect adopted an “irrebuttable presumption” that all support to FTOs furthers their terrorist ends.[267] Congressional findings concluded 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.”[268]

Fahad Hashmi Prosecution

Fahad Hashmi also likely could not have been prosecuted prior to the amendments to the material support law. Hashmi was a recent graduate of Brooklyn College when he traveled to the UK to pursue a Master’s degree. Hashmi, a devout Salafi Muslim, was an outspoken activist against US foreign policy.[269] He had voiced his criticism in public forums both in the United States and the UK.[270]

In 2006, the US government intercepted Hashmi at a UK airport as he was about to board a plane to Pakistan. It touted his arrest as the capture of a “quartermaster”[271] who had provided material support by aiding in the delivery of military gear to Al‑Qaeda.[272] Yet, over time, it became clear that the government was not actually accusing Hashmi of providing military gear himself. Instead, the government alleged that Hashmi permitted an acquaintance, Junaid Babar, to stay in his apartment for two weeks, with his luggage.[273] The “military gear” described in the initial indictment turned out to be Babar’s luggage, containing raincoats, ponchos, and waterproof socks.[274]  The government later alleged that Hashmi allowed Babar to use his cell phone, lent him $300 to purchase a plane ticket to Pakistan, and aided him in delivering this luggage to a third-ranking member of Al-Qaeda by holding it in his apartment.[275] The government never presented evidence that Hashmi knew that Babar or his associates were members of Al-Qaeda; nor did it allege any direct contact between Hashmi and Al-Qaeda. Indeed, even Babar said that Hashmi was “very much an outsider.”[276] These were the only acts of alleged material support prosecutors presented against Hashmi (though they did point to evidence of Hashmi’s political views and speech in an attempt to bolster the case against him).[277]

The centerpiece of the case against him was the testimony of Babar, who himself faced terrorism charges in 2004 and quickly cooperated with government authorities in exchange for a reduced sentence.[278] Hashmi was charged with two counts of providing and conspiring to provide material support and two counts of making and conspiring to make a contribution of goods or services to Al‑Qaeda.[279] After spending nearly three years in pretrial solitary confinement (see section IV), Hashmi pleaded guilty to one count of conspiring to provide material support.[280] He was sentenced to 15 years in prison.[281]

One former prosecutor described Hashmi’s case as running up against the outer limits of the material support laws. “That’s the closest I’ve seen here. He had developed radical views and clearly sidled up to some bad folks, and ended up allowing someone to stay with him and store some gear.”[282] He emphasized that the value of prosecuting someone like Hashmi is deterrence, both of the perpetrator and others: “Someone who is willing to support Al-Qaeda would be less likely to go for this after Hashmi.”[283]

Tarek Mehanna Prosecution

In April 2012, Tarek Mehanna was convicted on seven counts, including three material support charges and three charges of providing false statements to government officials. He was sentenced to 17 ½ years in prison.[284]

A pharmacist, Mehanna taught Arabic at a local mosque in Sudbury, Massachusetts, where he was a favorite among his students. Daoud Ali, a friend of Mehanna’s from the Worcester Islamic Center, described Mehanna as a charismatic leader who was an outspoken critic of US foreign policy.[285]

Prior to arresting Mehanna in 2008, FBI agents approached him on three separate occasions, including at the pharmacy where he worked, during work hours. Agents asked him questions about his background, religious practice, travels and relationships.[286] These conversations would become the basis for false statement charges brought alongside material support charges against Mehanna in November 2008.[287] Mehanna said that on their third visit, outside a hospital where Mehanna had just finished a shift, federal agents pushed him to become an informant for the FBI.[288] He refused.

Soon afterwards, in 2008, Mehanna was arrested as he was leaving for Saudi Arabia to begin a new job as a clinical pharmacist, and charged with making false statements.[289] Mehanna was released on bail. Ten months later, in October 2009, Mehanna was arrested again in a raid on his family’s Sudbury home, at which point the remaining charges—including the material support charges—were brought against him.[290]

The three material support counts rested on two concurrent theories of liability.[291] First, the government alleged that Mehanna had traveled with some friends to Yemen in 2004 in a failed attempt to find a jihadist training camp.[292] Mehanna claimed that he was travelling to Yemen to study classical Arabic and religion as he continued to explore his faith.[293] Both agreed that Mehanna returned after a short trip and never attended a training camp of any sort.[294]

Second, the government pointed to documents and videos that Mehanna had translated from their original Arabic and posted online to a website called “At-Tibyan Publications,” which the government alleged amounted to providing material support to Al-Qaeda in Iraq (AQI) “in the form of [his] online activities of translating, editing and distributing certain pro-jihadi materials for terrorists and Al-Qaeda.”[295] The defense rejected the website’s association with AQI.[296] Particularly at issue was Mehanna’s translation of 39 Ways to Serve and Participate in Jihad. At trial and on appeal the government insisted that the translation of this document alone was sufficient to garner a conviction.[297]

The trial judge denied a defense motion to dismiss the material support charges on the ground that the charges were based on activity protected by the First Amendment guarantee of free speech.[298] The judge also denied a motion by the defense requesting a special verdict form that would show whether the jury based any material support verdicts on speech protected by the First Amendment.[299] After an eight-week trial, the jury convicted Mehanna on all counts, including material support. While prosecutors argued that evidence of Mehanna’s speech and trip to Yemen were separate and sufficient bases for convicting him of material support, the jury did not indicate whether it considered speech alone to be sufficient.[300] Mehanna appealed the verdict on the basis of unduly prejudicial evidence and First Amendment violations. In November 2013, the First Circuit upheld the verdict, finding that the evidence relating to the Yemen trip independently supported the conviction.[301] Mehanna’s March 2014 petition for writ of certiorari before the Supreme Court is still pending.[302]

Raleigh 7 Case – Ziyad Yaghi and Omar Mohammad Hassan

Ziyad Yaghi and Omar Mohammed Hassan were charged, along with five other defendants, with offenses related to an alleged terrorism conspiracy centered in Raleigh, North Carolina, aimed at violent jihad and support for and participation in terrorist activities outside the US.[303] Yet while the indictment charged conspiracy to provide material support to terrorists, it never specified to whom Yaghi and Hassan provided material support. Yaghi was also charged with conspiracy to murder, kidnap or maim, but the prosecution never specified where, when or how.[304]

The FBI began investigating Yaghi in 2006 after allegedly receiving tips from the Muslim community about him. [305] In late 2006, Yaghi told Daniel Boyd—who had established himself as a leader among Muslim youth in Raleigh—that he would be traveling to Jordan to visit his grandmother and other family, further his Islamic education, and hopefully, find a wife. [306] In response, Boyd recommended a mosque where Yaghi could study and gave him the name of a Muslim woman in Jordan looking to get married. [307] Prosecutors said that terms like “getting married,” “going to the beach,” and “getting engaged” were actually code words for advancing the conspiracy; the government then used expert witness Evan Kohlmann (see section IV) to lend credence to that theory. [308]

Prosecutors alleged that Hassan and Yaghi, in collaboration with their co-defendants and guided by Daniel Boyd, traveled to the Middle East in an effort to train and join jihadi forces. Yaghi traveled to Amman, Jordan in October 2006, staying for about three months. There were three short phone calls, and three emails between Yaghi and Boyd during that time, and the government said the emails showed that Yaghi had criminal intent.[309] Yaghi had asked about the location of the mosque Boyd had recommended and questions about the ideology of violent jihad.[310] To bolster this point, the government used posts on Yaghi’s Facebook profile, which included political opinions, observations, and self-styled “gangsta rap” lyrics.[311] The government used the same type of evidence against Hassan with respect to his 2007 trip to Jordan.[312] At trial, Boyd testified that he had never made any agreement to provide material support or to murder anyone in a foreign country.[313]

In February 2007, Yaghi learned that Boyd and his family were planning a trip to Israel/Palestine and asked if he and Hassan could join.[314] Boyd agreed to let Yaghi come but told him that the trip was a “family thing” and that Yaghi would be on his own.[315] The Boyds, Hassan and Yaghi were denied entry to Israel. Although they all eventually went to Jordan instead, Boyd had no contact with Hassan and Yaghi while they were overseas.[316] Hassan and Yaghi vacationed at a beach in Egypt before returning to the United States in July 2007.

FBI Agent Robert Powell acknowledged that the government found no evidence that Yaghi or Hassan engaged in any terrorism-related activities on the 2007 trip.[317]

Hassan and Yaghi bought roundtrip tickets, paid for their own tickets, used their real names and proper identification documents, and openly told law enforcement authorities at several airports they were there to “see the sights” and see Daniel Boyd.[318] Nonetheless the government told the jury in its opening statement that “the evidence, in cumulative form, will show convincingly that [the 2007 trip] was for the purpose of finding a way to the battlefield, trying to get hooked up with terrorists overseas who can take them to the battlefield to kill Americans.”[319]

After Yaghi returned from Jordan in 2007, the FBI visited his home more than 10 times, though Yaghi’s mother, Leila Yaghi, told us that she refused them entry.[320] Yaghi and Hassan communicated with Boyd two times after returning from Jordan, meeting him at his store in Raleigh in the summer of 2008. They had no communication thereafter. Both men were arrested in July 2009. Boyd and his two sons pleaded guilty to the charges against them and testified against Yaghi and Hassan at trial.[321] Boyd was sentenced to 18 years in prison; his sons were sentenced to seven years each. Hassan and Yaghi were convicted and sentenced to 15 and 45 years, respectively.[322]

Human Rights Concerns

Several of these cases raise serious concerns about violations of individuals’ rights to free speech and association under the US Constitution and international law. According the UN Human Rights Committee, “The criminalisation of expression relating to terrorism should be restricted to actual participation in terrorist acts or instances of intentional incitement to terrorism.” [323] Similarly, the government can only punish association with a group that intends to commit crimes if the association itself is intended to further the illegal aims. [324]

In 2007, then-UN special rapporteur on human rights while countering terrorism, Martin Scheinin, cautioned against material support laws that are “expressed in terms that are not exclusive [and which] thereby render[] the expression ‘material support’ too vague.”[325] This “lack of precision” leaves the boundaries of liability unclear and makes it “particularly problematic for communities, including Muslim ones, which are unable to determine whether the provision of funds by them to what they may believe are charities or humanitarian organizations abroad will be treated as material support to a terrorist entity.”[326]

Despite the US Supreme Court’s acceptance of an extremely broad interpretation of the material support laws, the US has international legal obligations regarding the cases it chooses to prosecute. Some of the cases discussed above raise serious questions about whether the US is complying with those obligations.

[234] While DOJ-NSD does distinguish between international and domestic terrorism, all of the cases we discuss here are considered “international terrorism” cases per DOJ-NSD classification, although many appear to have no international link. (See, for example, the Matin Siraj and Fort Dix cases discussed above.) 18 U.S.C. sec. 2331(1) defines “international terrorism” as activities that: “(1)(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; (B) appear to be intended (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum [emphasis added].” The definition of domestic terrorism is the same, with the exception that such acts “occur primarily within the territorial jurisdiction of the United States.” See 18 U.S.C. sec. 2331(5).

[235] The original statute, 18 USC § 2339A, made it a crime to provide or conceal “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets” with the knowledge or intent that they be used to further an act of terrorism. Violent Crime Control and Law Enforcement Act, 1994, tit. XII § 120005(a) (§ 2339A(a-b)), H. R. 3355, Pub.L. 103-322 (1994).

[236] Ibid., excepting “humanitarian assistance to persons not directly involved in such violations.”

[237] The Violent Crime Control and Law Enforcement Act forbids investigations initiated based on “expressions of support or the provision of financial support for the nonviolent political, religious, philosophical, or ideological goals or beliefs of any person or group.” See ibid.

[238] The new 1996 material support statute allowed for the provision of “medicine or religious materials.” Antiterrorism and Effective Death Penalty Act, tit. III(A) § 323 (§ 2339A(b)), Pub.L. 104-132, 110 Stat. 1255 (1996).

[239]  Ibid.

[240]“USA Patriot Act,” tit. VIII §§ 810(c) and 810(d), H. R. 3162, Pub.L. 107-56 (2002); The 2001 version also increased the maximum term of imprisonment for material support offenses from 10 to 15 years with a possible life sentence if a death occurs as a result of the support rendered.

[241]Ibid.,§ 811(f).

[242] The Intelligence Reform and Terrorism Prevention Act of 2004 amended the definition of “material support or resources” applying to both sections, and the meaning of “knowingly” was expanded to require “knowledge that the organization is a designated terrorist organization,…that the organization has engaged or engages in terrorist activity…, or that the organization has engaged or engages in terrorism.” “Intelligence Reform and Terrorism Prevention Act” tit. VI § 6603(b) (§ 2339A(b)(1)) and (§ 2339B(a)(1)) , Pub.L. 104-458, 118 Stat. 3638 (2004).

[243] Human Rights Watch joined a brief of amicus curiae in the case, arguing that purely peaceable activities it conducts could fall within the ambit of the material support statute. Brief for Human Rights Watch et al. as Amici Curiae Supporting Humanitarian Law Project, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (Nos. 08-1498 and 09-89).

[244] David Cole, “Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’” (Georgetown Public Law and Legal Theory Research Paper No. 1262792, Georgetown University Law Center, 2008), pp. 234-35.

[245] Columbia Law School’s Human Rights Institute Interview with Joseph Ferguson, former prosecutor and co-director of the National Security and Civil Liberties Program at Loyola University School of Law, Chicago, Illinois, October 10, 2012.

[246] Robert Chesney, “The Sleeper Scenario: Terrorism-Support Laws and the Demands of Prevention,” Harvard Journal on Legislation, vol. 42, no. 1 (2005), pp. 19-20.

[247] Among the 494 defendants in our analysis, there were 917 separate convictions. Of these, 18 percent (168 total) convictions, since September 11, 2001 have been pursuant to material support charges under sections 2339A or B. Another 10 percent of convictions (92) were for Conspiracy, and 6 percent (58) for False Statements. Human Rights Watch analysis of US Department of Justice data. See also, Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments (New York: Human Rights First, 2009), http://www.humanrightsfirst.org/wp-content/uploads/pdf/090723-LS-in-pursuit-justice-09-update.pdf (accessed June 20, 2014).

[248] Columbia Law School's Human Rights Institute interview with Joseph Ferguson, October 10, 2012.

[249] “Thus, the relevant USAOs shall have access to information developed in full field investigations, shall be kept apprised of information necessary to protect national security, shall be kept apprised of information concerning crimes, shall receive copies of LHMs or successor summary documents, and shall have access to FBI files to the same extent as the Criminal Division.” Memorandum on Intellligence Sharing Procedures for Foreign Counterintelligence Investigations Conducted by the FBI from John Ashcroft, former attorney general, US Department of Justice, to Robert Mueller III, former director, United States Federal Bureau of Investigation, March 6, 2002, https://www.fas.org/irp/agency/doj/fisa/ag030602.html (accessed June 22, 2014).

[250] Human Rights Watch analysis of US Department of Justice data.

[251] According to a report by the Center on Law and Security, in 2007, material support charges were brought in only 12 percent of terrorism cases; in 2010, that number rose to 69 percent and in 2011 88 percent of terrorism cases involved a material support charge. New York University School of Law, Center on Law and Security, “Terrorist Trial Report Card: September 11, 2001 – September 11, 2011,” p. 19.

[252] Meg Laughlin, “In his plea deal, what did Sami Al-Arian admit to?” St. Petersburg Times, April 23, 2006, http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml (accessed June 20, 2014). ("There was never any evidence in the trial to show that Al-Arian or his co-defendants were involved with any violent acts. At the trial, federal prosecutors presented dozens upon dozens of transcripts of phone conversations and fax exchanges that Al-Arian had with PIJ leaders before such communications became illegal in 1995.").

[253] Eric Lichtblau, “Not Guilty Verdicts in Florida Terror Trial Are Setback for U.S.,” New York Times, December 7, 2005, http://www.nytimes.com/2005/12/07/national/nationalspecial3/07verdict.html?pagewanted=all (accessed June 20, 2014). ("The trial, lasting more than five months, hinged on the question of whether Mr. Arian's years of work in the Tampa area in support of Palestinian independence crossed the threshold from protected free speech and political advocacy to illegal support for terrorists.")

[254] Plea Agreement, United States v. Al-Arian, No. 8:03-cr-00077-CEH-TBM (M.D. Fla. Apr. 17, 2006). See also, 18 USC § 371.

[255] Judgment, Al-Arian, No. 8:03-cr-00077-CEH-TBM (M.D. Fla. May 1, 2006).

[256] In May 2006, shortly after his plea agreement was entered, the same prosecutor who tried the case against Al-Arian in Florida charged him before a grand jury in Northern Virginia. Gordon Kromberg, the AUSA, was investigating whether Islamic charities in the area were providing material support to terrorists. Al-Arian refused to testify on the basis of the content of his plea agreement. The court held him in civil contempt in November 2006, with the days served for civil contempt not counting towards his plea agreement sentence. In December 2007, the court lifted the order, and he continued to serve the rest of his sentence pursuant to the plea agreement. He was subpoenaed again in October 2007 and March 2008. In June 2008, after two separate federal courts held that the plea agreement did not preclude him from testifying, he was indicted on two counts of criminal contempt. He was released to house arrest in September 2008. Motion to Dismiss, United States v. Al-Arian, no. 1:08-cr-00131-LMB (E.D. Va. June 27, 2014).

[257] In a January 24, 1995 Executive Order, then-President Bill Clinton declared Hamas (along with 10 other groups) terrorist organizations under US law. The order made it a felony to raise, donate, or transfer funds to Hamas and mandated a freeze on all Hamas’ banking assets in the US. Douglas Jehl, “Clinton Orders Assets of Suspected Terrorist Groups Frozen,” New York Times, January 25, 1995, http://www.nytimes.com/1995/01/25/world/clinton-orders-assets-of-suspected-terrorist-groups-frozen.html (accessed June 20, 2014). On October 8, 1997, the US State Department’s Counterterrorism Bureau released its first official list of designated Foreign Terrorist Organizations (FTOs), which designated 21 organizations, including Hamas, as a FTO. “Foreign Terrorist Organizations,” US Department of State, Bureau of Counterterrorism terrorism designations press release, May, 28, 2013, www.state.gov/j/ct/rls/other/des/123085.htm (accessed June 20, 2014).

[258] Salah was eventually indicted but acquitted in the US of terrorism-related charges in 2007 (see section IV).

[259] Michael Deutsch and Erica Thompson, “Secrets and Lies: The Persecution of Muhammad Salah (Part I),” Journal of Palestine Studies, vol 37, no. 4 (2008), http://www.palestine-studies.org/journals.aspx?id=10022andjid=1andhref=fulltext# (accessed June 20, 2014). See also, Emily Ratner, “Anonymous Accusers in the Holy Land: Subverting the Right of Confrontation in the United States’ Largest Terrorism-Financing Trial,” Loyola Journal of Public Interest Law, vol. 13, no. 2 (Spring 2012), pp. 582-83. (“During a 1993 interrogation that he would later say included torture, Palestinian American businessman Muhammad Salah told agents of the Israeli Security Agency (Shin Bet) that HLF provided financial support to the Palestinian militant group Hamas.”)

[260] Human Rights Watch interview with John Bryant, Dallas, Texas, June 25, 2012.

[261] Ibid.

[262] Ibid.

[263] Transcript of Oral Argument vol. 6 at 69, United States v. Holy Land Found., 722 F.3d 677 (5th Cir. 2013) (No. 3:04-CR-0240-P).

[264] Human Rights Watch interview with Ed Abington, Ottawa, Canada, August 22, 2012.

[265] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[266] Ibid.

[267] David Cole, “Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’” (Georgetown Public Law and Legal Theory Research Paper No. 1262792, Georgetown University Law Center, 2008), p. 238.

[268] In a journal article, Wadie E. Said finds that certain foreign terrorist groups raised funds for violent activity in the United States under humanitarian pretenses. Wadie E. Said, “The Message and Means of the Modern Terrorism Prosecution,” Transnational Law and Contemporary Problems, vol. 21 (2012), p. 188 (citing Antiterrorism and Effective Death Penalty Act, tit. III § 301, 110, Pub. L. 104-132, Stat. 1247 (1996)). See also, Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[269] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Faisal Hashmi, brother of Fahad Hashmi, New York, June 1, 2012. “Fahad has been a vocal critical of the United States for a long period of time, and was intelligent in his approach.”

[270] Ibid.

[271]Laura Rovner and Jeanne Theoharis, “Preferring Order to Justice,” American University Law Review, vol. 61 (2012), p. 1347 (citing “Terror Suspect Linked to Al-Qaeda Loses Extradition Battle,” Daily Mail Online, March 20, 2007, http://www.dailymail.co.uk/news/article-443477/Terror-suspect-linked-Al-Qaeda-loses-extradition-battle.html (accessed June 22, 2014)); see also, “American extradited on terror charges,” CNN, May 26, 2007, http://www.cnn.com/2007/LAW/05/26/terror.suspect/ (accessed on June 22, 2014) (quoting FBI Assistant Director, Mark J. Mershon: "If we are engaged in a war against terror—and we most certainly are—then Syed Hashmi aided the enemy by supplying military gear to Al-Qaeda.”). DOJ championed his arrest and eventual conviction as a victory. “U.S. Citizen Pleads Guilty in Manhattan Federal Court to Conspiring to Provide Material Support to Al Qaeda,” United States Department of Justice press release, April 27, 2010, http://www.justice.gov/usao/nys/pressreleases/April10/hashmisyedpleapr.pdf (accessed June 2, 2014).

[272]Rovner and Theoharis, “Preferring Order to Justice,” American University Law Review, p. 1347 (citing “United States Announces First Extradition from United Kingdom on Terrorism Charges,” US Department of Justice press release, May 26, 2007, http://www.justice.gov/usao/nys/pressreleases/May07/hashmiextraditionpr.pdf (accessed June 22, 2014)). (“Mershon added, ‘[i]n a global community, terrorism anywhere is a threat to people everywhere.’”)

[273] Columbia Law School’s Human Rights Institute and Human Rights Watch interview with Faisal Hashmi, June 1, 2012.

[274] Indictment at 3, United States v. Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[275] Ibid., pp. 2-3.

[276] Transcript of Bail Hearing at 11, Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[277] The government planned to submit excerpts depicting Hashmi at a public political protest and a meeting of an “Islamic fundamentalist organization.” Government’s Memorandum In Support of Its Motion to Admit Certain Evidence at Trial at 1, Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010). Columbia Law School's Human Rights Institute and Human Rights Watch interview with Faisal Hashmi, June 1, 2012.

[278] Columbia Law School's Human Rights Institute and Human Rights Watch interview with Faisal Hashmi, June 1, 2012. Transcript of Bail Hearing at 12-13, Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[279] Indictment, Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[280] “US Citizen Pleads Guilty in Manhattan Federal Court to Conspiring to Provide Material Support to Al-Qaeda,” US Department of Justice, Federal Bureau of Investigation press release, April 27, 2010, http://www.fbi.gov/newyork/press-releases/2010/nyfo042710b.htm (accessed June 22, 2014).

[281] Hashmi was moved to the Communications Management Unit in Terre Haute, Indiana as of June 17, 2004.

[282] Columbia Law School’s Human Rights Institute and Human Rights Watch Interview with former Assistant United States Attorney (name withheld), February 14, 2013.

[283] Ibid.

[284] “Tarek Mehanna Sentenced in Boston to 17 Years in Prison on Terrorism-Related Charges,” US Department of Justice, Federal Bureau of Investigation press release, April 12, 2012, http://www.fbi.gov/boston/press-releases/2012/tarek-mehanna-sentenced-in-boston-to-17-years-in-prison-on-terrorism-related-charges (accessed June 23, 2014).

[285] Columbia Law School's Human Rights Institute interview with Daoud Ali, Boston, Massechussetts, October 5, 2012.

[286] Columbia Law School's Human Rights Institute email correspondence with Tarek Mehanna, December 6, 2012. “The conversation then immediately shifted to biographical inquiries (where I lived, where I attended mosque, how long I had left in school, etc).”

[287] Ibid., “The entire time, one agent simply stared at my face, while the other was asking the questions. They began by holding up photographs and asking if I recognized those pictured. Regarding one of them, Daniel Maldonado, they asked about the last time I had spoken to him (this particular question served as the basis for the false statement charge upon which I was arrested the first time, in November 2008). The majority of the time was then spent questioning me about details regarding my trip to Yemen nearly three years prior— who helped me financially and logistically, who accompanied me, who I met there, etc. After those questions, he said that they had evidence that I was not telling the truth, but they could not show me that evidence.”

[288] Ibid., “They said that they were planning to charge me with crimes of terrorism and giving false statements to the FBI. However, they were giving me a choice to do things the easy way, or the hard way (in court). They suggested I get a lawyer, and that he would tell me what the ‘easy way’ consisted of. I finally did, and it was made clear to me that they wanted me to become a government informant. They gave me a few days to make my decision, and I immediately asked my lawyer at the time to tell them that I was not going to do anything of the sort. I then awaited my arrest.”

[289] Transcript of Oral Argument at 4-6, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 09-cr-10017-GAO).

[290] “Massachusetts Man Charged With Conspiracy to Provide Material Support to Terrorists,” US Department of Justice, Federal Bureau of Investigation press release, October 21, 2009, http://www.fbi.gov/boston/press-releases/2009/bs102109a.htm (accessed on June 25, 2014).

[291] “The defendants conspired and attempted to provide themselves and each other as personnel in the form of personally participating in terrorist training and combat.” Government’s Opposition to Defendant’s Motion to Dismiss Portions of Counts One through Three of The Superceding Indictment at 5, Mehanna, 669 F. Supp. 2d 160 (No. 09-cr-10017-GAO).

[292] Brief of the United States at 16, United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013) (No. 12-1461), petition for cert. filed, No. 13-1125 (U.S. Mar. 17, 2014).

[293] Brief of Defendant-Appellant Tarek Mehanna at 11, Mehanna, 735 F.3d 32 (No. 12-1461).

[294] Brief of the United States at 14, Mehanna, 735 F.3d 32 (No. 12-1461); Brief of Defendant-Appelant Tarek at 17, Mehanna, 735 F.3d 32 (No. 12-1461).

[295] Government’s Opposition to Defendant’s Motion to Dismiss Portions of Counts One Through Three of The Superceding Indictment at 5, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 09-cr-10017-GAO); See also, Brief of the United States at 14, Mehanna, 735 F.3d 32 (1st Cir. 2012) (No. 12-1461); Brief of Defendant-Appelant Tarek Mehanna at 21, Mehanna, 735 F.3d 32 (No. 12-1461) (“In any event, because the evidence amply established that Mehanna engaged in propaganda activities ‘in coordination with, or at the direction of, a foreign terrorist organization,’ Mehanna’s convictions were lawful.” (citing Holder v. Humanitarian Law Project, 561 U.S. 1 (2010))).

[296] Brief of Defendant-Appellant Tarek Mehanna at 12, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 09-cr-10017-GAO).

[297] Brief of the United States at 35, United States v. Mehanna, 735 F.3d 32 (1st Cir. 2012) (No. 12-1461), petition for cert. filed, No. 13-1125 (U.S. Mar. 17, 2014). (“In any event, because the evidence amply established that Mehanna engaged in propaganda activities ‘in coordination with, or at the direction of, a foreign terrorist organization,’ Mehanna’s convictions were lawful.”)

[298] Docket, Electronic Clerk’s Notes Aug. 3, 2011, United States v. Mehanna, 669 F. Supp. 2d 160 (D. Mass. 2009) (No. 1:09-cr-10017-GAO). See also, Defendant’s Motion to Dismiss Portions of Counts One Through Three of the Second Superseding Indictment, Mehanna, 669 F. Supp. 2d 160 (No. 1:09-cr-10017-GAO).

[299] Transcript of Jury Trial, Day 35 at 75, Mehanna, 669 F.Supp. 2d 160 (No. 1:09-cr-10017-GAO).

[300] David Cole, “39 Ways to Limit Free Speech,” post to “NYR Blog” (blog), New York Review of Books, April 19, 2012, http://www.nybooks.com/blogs/nyrblog/2012/apr/19/39-ways-limit-free-speech/ (accessed July 9, 2014).

[301] United States v. Mehanna, 735 F.3d 32, 50 (1st Cir. 2013) petition for cert. filed, No. 13-1125 (U.S. Mar. 17, 2014).

[302] The First Circuit denied appeal for an en banc rehearing in December 2013. Mehanna filed a Writ of Certiorari, appealing the First Circuit’s decision to the Supreme Court, in March 2014. Order Denying Petition for Panel Rehearing and Rehearing en banc, Mehanna, 735 F.3d 32 (1st Cir. 2013) (No. 12-1461); United States v. Mehanna, 735 F.3d 32 (1st Cir. 2013), petition for cert. filed, No. 13-1125 (U.S. Mar. 17, 2014).

[303] “Seven Charged with Terrorism Violations in North Carolina,” US Department of Justice press release, July 27, 2009, http://www.justice.gov/opa/pr/2009/July/09-nsd-725.html (accessed June 25, 2014); Superseding Indictment at 3-4, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[304] Ibid., pp. 3, 13.

[305] Trial Transcript Day 2 at 72, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[306] Ibid., Day 7, p. 259.

[307] Ibid., Day 7, pp. 60, 260, 267.

[308] Ibid., Day 2, p. 85. “Going to the beach means getting to the battlefield. Getting married means getting actively involved in the fighting, itself. Getting engaged means essentially committing to getting married, that is, committing to getting involved with those who can bring you to the battlefront. Kohlmann can talk about that to you.”

[309] Ibid., Day 10, pp. 23-24, 29.

[310] Trial Transcript Day 2 at 85 and Day 7 at 60, 63, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[311] Ibid., Day 10, p. 71. “Writing a note, nope, won't catch this nigga z on dope. Know how to play the game, kuffar is all one in the same, Jew, Christian or munafiq, it's gonna drastic, won't catch me on the army's draft list. Rather be the last draft pick. Sentence me ta life for speaking truth, but I'm serving a life sentence just for being a youth”; Trial transcript day 10 at 69, “Yo, remember when I used to be fasiq, the results was drastic. Now I'm good so feds wanna stretch me like elastic. Kuffar wanna bring us down but they can't suppress the sound. When were screaming la illaha illah, stompin on the ground.”

[312] Ibid., Day 10, p. 81. “Yo, one, two check it. I’m bout to reck it. So wuzup with nigga Z ... I used to smoke tree. But I don’t do that shit no more ... Only think I smoke now is fuckin kuffar ...”

[313] Ibid., Day 7, p. 260.

[314] Ibid., Day 7, p. 81.

[315] Trial Transcript Day 7 at 79-82, 246, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[316] Ibid., Day 7, pp. 98, 262-63.

[317] Ibid., Day 11, p. 29.

[318] Ibid., Day 2, pp. 123-24.

[319] Ibid., Day 2, p. 88.

[320] Columbia Law School’s Human Rights Institute interview with Leila Yaghi, Raleigh, North Carolina, October 14, 2012.

[321] Sentencing Statement for Dylan and Zak Boyd at 10, 48, United States v. Boyd, No. 5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[322] United States v. Hassan, 742 F. 3d 104, 111 (4th Cir. 2014).

[323] UN Human Rights Committee, Draft General Comment No. 34 (Ninety-eighth session, 2010), U.N. Doc. CCPR/C/GC/34/CRP.2 (2010) para. 45.

[324]Brief for Human Rights Watch, et al. as Amici Curiae supporting Humanitarian Law Project, Holder v. Humanitarian Law Project at 34, 561 U.S. 1 (2010) (Nos. 08-1498 and 09-89). (“Implicit in the government’s arguments below was the proposition that expressive activity that would otherwise be protected by the First Amendment becomes unprotected when engaged in with a group that the executive branch has designated. Under the Court’s well-established precedents, however, association with a group that engages in unlawful activity cannot be punished unless it is intended to further the group’s unlawful aims. Hinging application of the statute on a disfavored association only compounds the constitutional problem by layering an impermissible restriction on the right to association upon an impermissible restriction on speech. ‘For liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.’ Claiborne Hardware, 458 US 898 at 920.”).

[325] UN Commission on Human Rights, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism Martin Scheinin, A/HRC/6/17/Add.3, Nov. 22, 2007, para 41.

[326] Ibid.ICCPR in article 14 requires, among other things, a fair and public hearing that includes the right to examine witnesses, and the right not to be compelled to testify against oneself.