Senate Votes Down Effort to Expand Definition of Material Support

The Senate bill designed to implement recommendations of the 9/11 Commission, S. 4, had almost 200 amendments and took over two months to complete. One amendment, introduced by Sen. Jon Kyl (R-AZ), could have potentially weakened humanitarian work of U.S. charities overseas but was defeated as part of a package of amendments that did not pass. Kyl's amendment, SA 317, sought to increase the maximum penalties for those who give material support to suspected terrorists and a designated foreign terrorist organization. The text of the amendment would have broadened the definition of material support to anyone who "provides material support or resources to the perpetrator of an act of international terrorism, or to a family member or other person associated with such perpetrator, with the intent to facilitate, reward, or encourage that act or other acts of international terrorism." (emphasis added) The penalty for violating this provision would have been a fine, up to 25 years in prison, or both, or if death results, a prison term of any number of years to life. The terms "family member" or "person associated" were not defined in the amendment. Under this language, it may have been possible that someone who provided water or medical care to the child of a suicide bomber would have been subjected to criminal penalties. This legislative vagueness, combined with severe penalties, had the potential to discourage humanitarian aid and development programs, particularly in high-risk areas where such aid is greatly needed. While defending this provision on the Senate floor, Kyl commented, "The material-support statutes have been the Justice Department's workhorse in the war against terrorists, accounting for a majority of prosecutions. These statutes are also very effective at starving terrorist groups of resources." Nonprofits became aware of the language in the Kyl amendment and quickly acted. Muslim Advocates, the charitable arm of the National Association of Muslim Lawyers, sent out a call to action to nonprofits to oppose the amendment. OMB Watch submitted a document urging senators to vote no. The measure became part of a package of amendments, which Sen. John Cornyn (R-TX) introduced. Cornyn's amendment, SA 312, had to be voted down in order for the Kyl provision to be removed from the overall bill. Fortunately, Cornyn's amendment was defeated by a vote of 49-46. What remains in federal statutes is still is an overly expansive definition of material support that potentially harms victims of terror and aid workers. As the Ninth Circuit Court of Appeals ruled in November 2006, part of the language in Executive Order 13224 that allows designation of people and groups "otherwise associated" with terrorism is "unconstitutionally vague on its face." The case was brought by the Humanitarian Law Project, and the Justice Department has not yet decided to appeal the case.
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