Could lawyers provide material support to terrorist organizations?

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Posted By: Contributor March 15, 2010

Interesting post at Persuasive Authorities on the implications of Holder v. The Humanitarian Law Project and Al-Haramain v. Bush,

These two cases raise some serious issues for lawyers and law professors who provide legal opinion, advice, representation or education to suspected groups even when it is completely unrelated to terrorist violence.

Also see related post by Prof. Fadel of UofT at Foreign Policy,

At issue is the constitutionality of the United States government’s interpretation of a 1996 law criminalizing, with a maximum penalty of 15 years in prison, the provision of “material support” to foreign terrorist organizations. This provision is the government’s most used law in prosecuting those suspected of terrorism, largely because of the law’s breadth, and because it does not require the government to prove that the defendant intended to further the violent aims of the terrorist group. Especially troubling from the perspective of the foreign policy community is that it also prohibits providing “training,” “personnel,” “expert advice or assistance,” or “service” to such a group, even when such services are completely unrelated to terrorist violence.

2 Comments on "Could lawyers provide material support to terrorist organizations?"

  1. Marc | March 15, 2010 at 7:11 pm |

    From Mohammad Fadel’s post:
    “One of the ways to convince terrorist organizations to abandon terrorism is to convince them that they can achieve their legitimate political goals without resorting to terrorism.”

    It strikes me that at least one important issue is whether or not a terrorist group’s goals are, in fact, legitimate. Perhaps denunciation of these goals is an intended purpose of listing some as “terrorist groups.”

  2. Omar Ha-Redeye | March 15, 2010 at 9:15 pm |

    Perhaps one of the biggest setback of the Bush era is a deliberate obscuring of what the goals might be. It’s difficult to make any generalizations of such disparate groups, but it’s the tactics that are used that usually invoke the criminal element.

    I think legal counsel can play an important role in this respect, but I’m not certain there are many opportunities in which it could be done without invoking the disclosure rule in Smith v. Jones 1999 1 SCR 455:

    (1) Determining When Public Safety Outweighs Solicitor‑Client Privilege
    77 There are three factors to be considered: First, is there a clear risk to an identifiable person or group of persons? Second, is there a risk of serious bodily harm or death? Third, is the danger imminent? Clearly if the risk is imminent, the danger is serious.

    78 These factors will often overlap and vary in their importance and significance. The weight to be attached to each will vary with the circumstances presented by each case, but they all must be considered. As well, each factor is composed of various aspects, and, like the factors themselves, these aspects may overlap and the weight to be given to them will vary depending on the circumstances of each case. Yet as a general rule, if the privilege is to be set aside the court must find that there is an imminent risk of serious bodily harm or death to an identifiable person or group.

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