Material Support Lawyer

Federal Defense Counsel for Individuals and Organizations Charged with Providing Material Support to Terrorist Organizations Under Sections 2339A and 2339B

Providing material support to terrorists and terrorist organizations is a serious federal crime. Individuals and organizations prosecuted under the federal material support statutes can face substantial fines, with individuals also facing 15 to 20 years of federal prison time in most cases. If an individual provides such an organization with material support that results in death, this can increase to a life sentence. As a result, when facing charges, it is critical to engage an experienced material support lawyer immediately.

Understanding the Breadth of the Federal Material Support Statutes

Attorney Nick Oberheiden
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In concept, the federal material support laws make sense. The federal government has a strong interest in protecting its citizenry and the national infrastructure from terrorist attacks. It also has a strong national security interest in thwarting terrorist activities abroad. However, the federal material support laws are extremely broad in scope; and, as a result, they allow for prosecution in many cases when prosecution is not warranted.

This issue came into the spotlight in 2010, when the U.S. Supreme Court upheld a broad application of 18 U.S.C. Section 2339B, which prohibits providing material support to terrorist organizations. As the American Civil Liberties Union (ACLU) explained at the time:

“The ruling thwarts the efforts of human rights organizations to persuade violent actors to renounce violence or cease their human rights abuses and jeopardizes the provision of aid and disaster relief in conflict zones controlled by designated groups . . . .”

Likewise, an article published in the American University Law Review in 2017 states:

“The material support statute . . . provides the government with a powerful tool to prosecute any individual it believes is providing material support to a foreign terrorist organization (FTO)—even if the individual does not intend to facilitate any terrorist acts. . . . Further exacerbating this problem, no appellate-level courts have ever defined how to determine whether an individual is part of an FTO under § 2339B.”

Rather than providing a specific definition of what constitutes a foreign terrorist organization (FTO), the statute (and the courts) leave it to the U.S. Secretary of State to designate individual terrorist organizations. As the U.S. Department of Justice (DOJ) explains, the Secretary of State has the power to designate an organization as an FTO if it engages in “terrorist activity [that] threatens the security of United States nationals or the national defense, foreign relations or economic interests of the United States.” This, too, is extremely broad—and this further exacerbates the risks for individuals and organizations facing prosecution for providing material support.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester

Former U.S. Attorney

Hon. Kevin McCarthy

55th Speaker, U.S. House of Representatives (ret.)

Government Consultant

Mike Pompeo

Of Counsel

Former U.S. Secretary of State

John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara

Federal Appeals Attorney

Nicholas B. Johnson

Former Prosecutor

Roger Bach

Former Special Agent (DOJ)

Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen

Former Supervisory Special Agent (FBI)

Defending Against Material Support Charges Under Sections 2339A and 2339B

Two sections of the U.S. Code prohibit the provision of material support. Under 18 U.S.C. Section 2339A, it is unlawful to provide material support to “terrorists,” while Section 2339B makes it unlawful to provide material support to a “foreign terrorist organization.” However, most cases are prosecuted under Section 2339B, as it is both broader in scope and has fewer barriers to enforcement. Section 2339B states:

“Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life. To violate this paragraph, a person must have 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 . . . .”

A key question in prosecutions under Sections 2339A and 2339B is whether the defendant has provided “material support or resources” to a terrorist or FTO. Both sections of the U.S. Code use the same definition of this term: “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel . . . , and transportation, except medicine or religious materials.”

With this definition and the statutory language of Section 2339B in mind (many provisions of Section 2339A are similar), some examples of potential defenses to charges of providing material support to a terrorist or foreign terrorist organization include:

Lack of Knowledge

Section 2339B requires knowledge of multiple factors in order to justify criminal prosecution. In material support cases under Section 2339B, prosecutors must be able to prove beyond a reasonable doubt that the defendant:

Knowingly provided material support or resources (or attempted or conspired to do so); and,
Knew that the organization at issue either: (i) was a designated terrorist organization; (ii) engaged in terrorist activity; or, (iii) engaged in terrorism.

“Terrorist activity” and “terrorism” are both statutorily defined terms—the former being defined in the Immigration and Nationality Act and the latter being defined in the Foreign Relations Authorization Act. If the DOJ cannot prove both of the knowledge elements required under Section 2339B (or the specific knowledge requirements under Section 2339A), then no conviction is warranted.

Lack of Material Support or Resources

Individuals and organizations facing prosecution under Section 2339A or Section 2339B may also be able to avoid a conviction by disputing the DOJ’s evidence that they supplied material support or resources (or attempted or conspired to do so). While the statutory definition of “material support and resources” is broad, it has its limitations, and there may be a question as to whether a defendant actually provided material support or resources as well.

The Recipient was Not a Terrorist or Foreign Terrorist Organization

To prosecute under Section 2339A or Section 2339B, the DOJ must also be able to establish that the recipient (or intended recipient) of material support or resources was either a terrorist or terrorist organization. While the knowledge element comes into play here as well ,it could be a defense, for example, that an individual had not yet been labeled a terrorist or a group had not yet been labeled a foreign terrorist organization at the time material support, if any, was provided.

Insufficient Evidence to Establish an Attempt or Conspiracy

A key aspect of Section 2339B is that it proscribes not only providing material support to a foreign terrorist organization, but also attempting or conspiring to do so. Attempt and conspiracy each have multiple elements that prosecutors must prove; and, if they cannot prove all of these elements, then simply establishing some efforts to provide material support is not enough.

Other Statutory and Constitutional Defenses

Along with these defenses based on the elements of a material support charge under Section 2339A or Section 2339B, there are several other possible statutory and constitutional defenses to these charges as well. If you or your organization is facing prosecution, a material support lawyer at Oberheiden P.C. can evaluate all potential defenses, formulate a comprehensive and cohesive defense strategy, and work to secure a favorable outcome that avoids trial if possible.

FAQs: Defending Against Charges of Providing Material Support

What is Considered Providing “Material Support” Under Section 2339A or Section 2339B?

An individual or organization can be charged with providing “material support” if accused of supplying “any property . . . or service” to a terrorist or foreign terrorist organization, with the exception of medications or religious materials. This definition is broad by design, and it means that even humanitarian organizations and other entities with no intention of facilitating terrorism can potentially face criminal prosecution.

What is a Designated Foreign Terrorist Organization?

Designated foreign terrorist organizations are those designated by the U.S. Secretary of State under the Immigration and Nationality Act. The State Department maintains a list of designated foreign terrorist organizations on its website.

Why Am I (or Why is My Organization) Under Investigation for Providing Material Support to a Terrorist Organization?

There are several reasons why you or your organization might be under investigation for providing material support to a terrorist organization. Once our material support lawyers have the opportunity to examine your (or your organization’s) case, we can determine what triggered the government’s investigation and then use this information to aid in building a strategic defense.

What Should I Do if I (or My Organization) is Under Investigation for Providing Material Support?

If the DOJ is investigating you or your organization for providing material support to a terrorist or foreign terrorist organization, you need to prioritize presenting an effective defense. Material support charges carry substantial penalties, so it is imperative that you do everything you possibly can to protect yourself or your organization to the fullest extent possible.

Do I Need a Material Support Lawyer to Defend Against Allegations of Providing Resources to a Terrorist Organization?

Yes, due to the complexity of these cases and the substantial risks involved, it is imperative that you have an experienced material support lawyer on your side. At Oberheiden P.C., our federal defense team includes former U.S. Attorneys and DOJ prosecutors, and we rely on our extensive experience to develop and execute effective defense strategies for our clients.

Speak with a Senior Material Support Lawyer at Oberheiden P.C. in Strict Confidence

If you need to speak with a material support lawyer, we encourage you to contact us promptly. Call 888-680-1745 or contact us online to speak with a senior lawyer at Oberheiden P.C. in strict confidence as soon as possible.