No Comment — October 20, 2011, 3:11 pm

The Lieberman Material-Support Dilemma

Connecticut senator Joseph Lieberman has put forward the Enemy Expatriation Act, which threatens to strip the citizenship of any American who is convicted of “providing material support or resources to a Foreign Terrorist Organization, as designated by the secretary of state, or actively engaging in hostilities against the United States or its allies.” In putting the measure forward, Lieberman continuously invoked Yemeni-American cleric Anwar al-Awlaki, who was killed in a U.S. drone strike on September 30. Al-Awlaki was born in New Mexico and thus had American citizenship, though he undoubtedly considered himself an enemy of the United States.

Senator Lieberman’s bill makes for good politics — there is no safer move in contemporary American politics than beating up on a dead man, especially one whom no one wants to defend. Still, the “material support” concept might have consequences he would rather not discuss. As the Justice Department has made clear in the past, material-support charges can be brought against persons whose activities service or fund a scheduled terrorist organization even if the individual doesn’t know that his recipient is a terrorist, or if he is providing support for a non-violent purpose. In a brief submitted to the federal district court in Washington, the Justice Department posited that “a little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans but is really a front for Al Qaeda” would be guilty of material support.

Yet consider the trip taken by former attorney general Michael Mukasey, former New York mayor Rudolph Giuliani, former Homeland Security secretary Tom Ridge, and former national security adviser Frances Townsend, who traveled to Paris in December 2010 to deliver speeches in support of the Iranian Mujahedeen-e Khalq (“MEK”) and shared a podium with its commander, Maryam Rajavi. MEK has many benefactors in high political positions, particularly in the G.O.P., but it is a scheduled terrorist organization in the United States — a designation it earned partly for its role in the execution of American service personnel in Iran in the 1970s. MEK’s boosters argue that its anti-American terrorism is long past, and they value it for the terrorist violence it can rain upon Iran — the group has become “our terrorists,” it would seem. Are Mukasey, Giuliani, Ridge, and Townsend guilty of material support for their public activities on MEK’s behalf? Should their citizenship be forfeited?

And what about Joe Lieberman and other U.S. lawmakers? In June 2004, they backed President George W. Bush’s designation of Pakistan as a major non-NATO ally, and in the seven years thereafter, they appropriated more than $19 billion in assistance to the country, about 75 percent of which was explicitly for security-related purposes. But an investigation in 2007 by the New York Times concluded that “money has been diverted to help finance weapons systems designed to counter India, not Al Qaeda or the Taliban.” Indeed, it subsequently became clear that Pakistan’s intelligence service and military were deeply enmeshed in efforts to train and support scheduled terrorist organizations involved in attacks on India, such as the November 2008 Mumbai attack by Lashkar-e Taiba, and on American interests, such as the September 13 bombings of the U.S. embassy and NATO headquarters in Kabul. The outgoing chairman of the Joint Chiefs of Staff, Admiral Michael Mullen, testified before Congress that the attacks in Afghanistan were the work of the Haqqani network, “which has long enjoyed the support and protection of the Pakistani government and is, in many ways, a strategic arm of Pakistan’s Inter-Services Intelligence Agency.”

In other words, aid that Lieberman and other U.S. lawmakers voted for flowed into the hands of the Haqqani network and Lashkar-e Taiba, and may have fueled acts of terrorism against the United States and its allies. Given this, it could be argued that Congress and the Bush Administration fail the Justice Department’s bizarre “little old lady in Switzerland” test, and so would find themselves on the wrong side of the material-support statute — if immunity doctrines did not protect them, that is. This goes to show how easily the “material support” notion can be abused, and why prosecutors should be required to present compelling evidence that accused parties knew, or should have known, that their support would be used to further terrorist aims.

Then again, perhaps Senator Lieberman’s bill should go forward — but with the added proviso that the Justice Department not grant immunity to members of Congress and government officials, and that it apply the material-support standards to those who appropriated funds that wound up with Lashkar-e Taiba and the Haqqani network. These people certainly have some explaining to do.

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