Material support for terrorism; A double standard

The highest U.S. immigration administration authority ruled this week that cooking and cleaning for terrorists, even when done under threat of death, qualifies as providing material support and justification for deporting someone. The immigration court’s catch-all interpretation of material support aligns with how it has been used in federal criminal cases, where the law has allowed prosecutors to charge people for vague, often nonviolent offenses related to terrorism.

The case at issue before the immigration court involved an unnamed Salvadoran woman who was kidnapped by guerrillas in 1990 and forced to undergo weapons training and cook and clean. The woman also watched her husband, a sergeant in the Salvadoran army, dig his own grave before being executed by the guerrillas.

The U.S. Department of Homeland Security had argued for the woman’s removal from the United States in 2004, based on the duties she was forced to perform while held captive 14 years earlier. Under the material support provisions of the USA Patriot Act, the sweeping security legislation passed in the months after the 9/11 attacks, immigrants may be denied entry or removed from the country if they provided support to terrorists, which are broadly defined in immigration law as nonstate actors involved in armed force.

The woman’s lawyer had argued that cooking and cleaning were not significant enough to be considered material support. And even if these activities were to be considered material support, she should be entitled to a so-called duress exception, since her life was threatened, the lawyer said. An immigration judge agreed to cancel her removal order, finding that the work she provided was so minimal it did not amount to material support.

But DHS appealed the ruling, and this week, in a 2-1 ruling, the Board of Immigration Appeals upheld the government’s reasoning. The majority of board members found that the woman’s cooking and cleaning for the group still qualified as material support, stating that nothing in the law allows for a “quantitative requirement” that would make one activity, such as raising money, more significant than another activity, such as washing dishes. They also ruled, citing a previous case from 2016, that there is no duress exemption to the material support statute.

Board member Linda S. Wendtland, in a dissenting opinion, argued that the board was giving material support a more expansive definition than Congress intended.

“I cannot conclude that the menial and incidental tasks that the respondent performed — as a slave — for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute,” Wendtland wrote. The material support statute provides a number of examples, including providing services, facilities, explosives, training, and expert advice.

Anwen Hughes, the deputy legal director for Human Rights First, criticized the majority opinion for defining material support to include activity that doesn’t “bear some logical connection to violence.” She added: “The consequence of someone not doing the dishes is what — you have a messy terrorist base?”

As a result of the ruling, the Board of Immigration Appeals sent the case back to the immigration court to determine if the woman’s removal could be canceled based on other factors.

In previous cases, the immigration courts have provided waivers for terrorism-related victims who were otherwise prohibited under the law from being in the United States. Examples include a 2010 waiver for a Sri Lankan fisherman who was forced to pay ransom to the Tamil Tigers, a foreign terrorist organization, in an act that amounted to material support under U.S. law. The Trump administration is considering eliminating such waivers altogether.

The elimination of those waivers, coupled with expansive rulings on the definition of material support, could make it difficult for refugees of terrorism to gain safe harbor in the United States. Yazidi women captured by the Islamic State and forced to be sex slaves, for example, could be considered by U.S. immigration courts to have provided material support for terrorists.

This broadened standard for immigration cases echoes the way that the material support law has long been used and abused in U.S. District Courts. Since 9/11, the Justice Department has prosecuted 859 defendants on international terrorism-related charges. Of those, 433 were charged with material support.

In fact, in U.S. District Court, you don’t even need to help an actual terrorist to be prosecuted for material support; you just need to think you’re assisting a terrorist. Last month, three men in Florida — Gregory Hubbard, Darren Arness Jackson, and Dayne Atani Christian — were sentenced to prison terms ranging from five to 13 years for providing material support to ISIS. Their only connection to ISIS was a con-man-turned-FBI-informant, Mohammed Agbareia, who claimed to have connections to the terrorist group.

Or take the case of Omar Mateen, who killed 49 people at the Pulse nightclub in Orlando, Florida, and pledged allegiance to ISIS before being killed by police. Family members of Mateen’s victims have sued Facebook, Twitter, and Google for providing material support to ISIS by allowing their platforms to distribute the terrorist group’s propaganda, leveraging a part of the material support law that allows for civil penalties. (The case is still pending.) The Justice Department also prosecuted Mateen’s widow, Noor Salman, for material support and making false statements (charges on which she was acquitted by a jury). Salman was not involved in the attack and did not provide any meaningful help to her late husband as he planned it.

Neither the technology companies nor Salman intended to support ISIS. But intention isn’t a requirement of the law.

So far, there’s one enterprise still apparently safe from the material support law: paid speeches. For that, Rudy Giuliani, the former New York City mayor who is now President Donald Trump’s personal lawyer, should be thankful. In 2011 and 2012, Giuliani accepted speaking fees from Mujahedeen Khalq, an Iranian exile group that was then designated a foreign terrorist organization. The Treasury Department investigated whether Giuliani had violated laws prohibiting Americans from receiving money from terrorist groups, but he was never charged with a crime.