Criminalized Association and Counterterrorism

by Bobby Chesney

As this is my first post as a guest blogger for Opinio Juris, I’d like to begin by saying thanks to Peggy, Chris, Julian, and Roger for their generosity in inviting me to participate. I really appreciate it, and hope that I can make some useful contributions. Now, on to the topic at hand….

In the course of studying the legal aspects of the U.S. response to terrorism both before and after 9/11, I’ve often been struck by the fact that federal criminal law – notwithstanding its considerable scope in this area – does not go so far as to overtly criminalize the mere act of being a member of certain terrorist organizations. To be sure, certain statutes (particularly, 18 U.S.C. 2339B, prohibiting material support to terrorist organizations) come rather close to outlawing membership in foreign terrorist organizations so designated by the Secretary of State. Indeed, I have argued elsewhere that during the prosecution of the “Lackawanna Six,” federal prosecutors employed an interpretation of the material support statute that was tantamount to a membership prohibition. The fact remains, however, that we have no post-9/11, terrorism-oriented parallel to the Cold War-era Smith Act membership prohibition that was upheld (albeit with a very important narrowing construction) by the Supreme Court in Scales v. United States.

Some European states, in contrast, have taken precisely this approach. In Brussels today, proceedings began in the trial of a group of 13 men on charges including the act/status of membership in the Moroccan Islamic Combat Group, an outlawed terrorist organization. According to a statement from the Beglian Federal Prosecutor’s Office reported by the AP, the membership ban makes it “easier for police and investigators to shut down suspected terror cells and detain those believed to be aiding and abetting terrorists . . . . Prosecutors do not have to prove that the defendants themselves were involved in carrying out an attack, only that they belong to terrorist groups.” (Note that the statement may be paraphrasing by the AP reporter).

That the U.S. Justice Department has not sought similar authority in the U.S. says something, I think, about the distinctive role that First Amendment freedoms play in our society. That, in turns, leads me to wonder about the status of the Belgian membership ban under Article 11 of the European Convention on Human Rights and Article 25 of the ICCPR. According to both, freedom of association may be restricted “in the interests of national security.” I can certainly see that argument’s theoretical applicability here, but am not certain whether this issue has been litigated previously under either convention (might this have come up in connection with UK law relating to the IRA, or Turkish law relating to the PKK?). I suspect that if this has been litigated such provisions have been upheld, particularly given the “margin of appreciation” often said to be owed to the state’s determination of its own national security interests.

That’s all for now. I hope some of you have some thoughts or insights to share!

4 Responses

  1. Hello Prof. Chesney,

    I have not yet read your article but plan to do so over the weekend, however, I thought you might be interested in an article I wrote for the Cardozo Public Law, Policy & Ethics Journal: “In the Absence of Democracy: The Designation and Material Support Provisions of the Anti-Terrorism Laws” 2 Cardozo Pub. L. Pol’y & Ethics J. 107 (2003).

    I guess you are technically correct that there is no statute that criminalizes membership in a foreign terrorist organization (FTO), since that provision is intended merely for immigration (exclusion) purposes, but the material support provision does, in my opinion, criminalize membership in the form of personnel and other acts (although some of these provisions were amended in the Intelligence Reform Act of 2004).

    Take a look at my article (and I will read yours) and we can discuss this further, if you like.

  2. Thanks Jennifer – I look forward to reading your piece, and will get back to you soon with my thoughts.

    In the article cited above, I take the position that the “personnel” aspect of the definition of “material support or resources” can function as a membership prohibition when interpreted reflexively (i.e., supplying one’s self as personnel to the FTO). This arguably was the theory at work in the Lackawanna prosecution; it is not clear whether the theory has been relied on in any other context (although there are some candidates). The IRTPA amendments from last year, although important in some respects, don’t preclude this approach.

    In light of the vast array of other circumstances to which section 2339B can be and has been applied, I try to be clear in discussing this provision that it does not raise the Scales issue in most of its applications. To that extent, I don’t agree that the statute is a membership ban when the support consists of, say, provision of funding or equipment. Even when applied as a membership provision, moreover, the impact of Scales is merely to require that an intent-to-further-unlawful-conduct requirement be read into the statute. In any event, fascinating stuff – I look forward to reading your perspective on all this. Thanks so much for your comments.

  3. I have been reading your wonderful article, Professor, but am not through it yet. My approach when I wrote my article was strictly in raising concerns about these provisions. Yours is much broader and more thorough and I’m enjoying it.

    Most interesting to me, also, is the fact that you view the subject from the law enforcement perspective, rather than the civil libertarian one, which is the p.o.v. I take.

    I’ve recently been submerged in the detention and torture issues (as I just completed a long article for the Case Western Univ. J. Int’l L.) and can’t speak about the designation/material support issues quite as well as I could two years ago. I look forward to an engaging discussion with you when we’ve both finished reading each other’s articles.

    Thanks for your response. Cheers.

  4. As a point of reference you might both be interested to note that membership of an illegal organisation has been a criminal offence here in Ireland since the Offences Against the State Act 1939 designed, of course, to deal with organisations such as the IRA. In looking at US responses to terrorism after 9/11 for my doctoral thesis I have been finding it useful to use Ireland as a control model – it’s an interesting comparison (and of course the nature of the enemies might be justifiably said to be different) but there’s plenty of stuff out there on Ireland and counter-terrorism if you’re interested!

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