The Rabbit Hole: When Terrorism Isn’t Terrorism Anymore.

Editor’s Note: Called an ‘indispensable tool’ by many national security professionals, 18 U.S.C. 2339, colloquially known as the ‘material support’ to terrorism clause, is a well-worn statute that federal prosecutors have leaned on for nearly three decades to make the arrests involving those who have been accused of crimes including murdering hundreds of Americans, planting bombs in shopping malls, and in at least one particularly expansive case, sending hot chocolate overseas. But with a recent appellate ruling, the versatile and frankly elastic charge may be hanging by a thread. In this week’s The Rabbit Hole, reporter Peter Beck looks at the debate of what it means to be a terrorist in the eyes of the law. - Seamus

If you attempt to commit a murder on behalf of the Islamic State, are you truly supporting the deadly terrorist organization? For two prominent federal judges, the answer is: it depends. On April 21, the U.S. Court of Appeals for the Second Circuit vacated the conviction of a man who expressly confessed to attempting a suicide bombing in the name of the Islamic State. In an era of rising lone wolf-style attacks, the ruling may implicate federal prosecutors’ ability to file charges under an essential terrorism statute.

The material support to terrorism of a designated foreign terrorist organization, or 18 U.S.C. 2339B, has been the bedrock of at least 199 criminal cases against alleged Islamic State members and sympathizers since 2015. Enacted in the wake of the Oklahoma City Bombing under the Antiterrorism and Effective Death Penalty Act, § 2339B prohibits someone from knowingly attempting or providing material support or resources—in terms of funds, training, expertise, labor, or any other kind of commodity that has monetary value—to a foreign terrorist organization, as designated by the Secretary of State. Prosecutors have used it to pursue cases against Islamic State supporters and other terror group members for a wide array of conduct, helping terrorist organizations, ranging from graphic design to plotting mass shootings in the U.S.

The law, however, has an exception limiting its reach. An exception that until very recently was not much of an exception in practice. According to the statute, for a person to attempt or provide labor, or “personnel,” to a terrorist organization, they must have been under the “direction or control” of the group. “Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.”. 

According to the Second Circuit, Akayed Ullah appeared to skirt that line.