In its ruling of June 21, 2010 (Holder v. Humanitarian Law Project), the U.S. Supreme Court further clarified the notion of “material support” to designated foreign terrorist organizations (FTOs) and brushed aside so-called “peaceful or humanitarian” support to such organizations.
The “material support” statute (18 U.S.C. § 2339B) adopted in 1996, prohibits the provision of material support or resources to a foreign terrorist organization.
“Material support or resources” is defined as“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 (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials”.
The main question was the legality of providing non-violent resources to support the humanitarian and peaceful efforts of terrorist organizations. The Court found that not only there was no distinction between the violent and non-violent wings of terrorist groups, but that terrorist groups benefit from any support given to them, even peaceful or humanitarian.
The Court conceded that FTOs may engage in political and humanitarian activities, but insisted 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.”
The Supreme Court therefore confirmed that it was necessary “to prohibit providing material support in the form of training, expert advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote only the groups’ nonviolent ends”, because this aid would “legitimize” the organization.
Referring to such humanitarian support during theoral arguments, Chief Justice Roberts stated “It’s going to make their hospital run better. People are going to like their hospital. So the party, the group, will be legitimized.”
Justice Scalia insisted that “The theory of the legislation is that when you aid any of their enterprises, you’re aiding the organization. Hamas, for example, gained support among the Palestinians by activities that are perfectly lawful, perhaps running hospitals, all sorts of things.”
Solicitor General Kagan clearly emphasized that “when you help a terrorist, foreign terrorist organization’s legal activities, you’re also helping the foreign terrorist organization’s illegal activities”. “Hezbollah builds bombs. Hezbollah also builds homes. What Congress decided was when you help Hezbollah build homes, your are also helping Hezbollah build bombs.”
The Supreme Court held that “Material support meant to ‘promote peaceable, lawful conduct’ can further terrorism by foreign groups in multiple ways. Material support is a valuable resource by definition. Such support frees up other resources within the organization that may be put to violent ends. It also importantly helps lend legitimacy to foreign terrorist groups—legitimacy that makes it easier for those groups to persist, to recruit members, and to raise funds—all of which facilitate more terrorist attacks.”
By its unambiguous ruling the Supreme Court clarifies the debate about “political wings” or “humanitarian wings” of terrorist organizations including the Hamas and Hezbollah, and sends a strong message to those promoting a dialog with so-called “moderate” elements within designated terrorist organizations.