“Material support” charges the feds’ best shot in terrorism case

Federal prosecutors have characterized Willow Spring resident Daniel Boyd as the mastermind behind a conspiracy to commit a “violent jihad”a holy warabroad. However, the actual charges Boyd and his co-defendants face, like flying to other countries, purchasing guns or even discussing jihad, are legal.

What makes them illegal is that they were allegedly conducted under a conspiracy, led by Boyd, according to the indictment (PDF, 247 KB), to radicalize “young Muslims and converts to Islam” and to join him in killing themselves and others for the purposes of becoming martyrs.

All eight defendants face life imprisonment for conspiring to murder, kidnap, maim and injure persons abroada terrorism-specific charge created in 1996 that requires no proof of specific acts of violence, or even the identification of a precise plot or particular targets. However, the bulk of the indictment is devoted to a separate charge of conspiring to provide material support for terrorists, which carries a maximum 15-year sentence.

Since the terrorist attacks on Sept. 11, 2001, federal prosecutors have sought the material charge in roughly half of all terrorism trials related to Islamic extremism, according to a 2009 report by Human Rights First (PDF, 630 KB). Despite a mixed record of prosecuting terrorism since 9/11, prosecutors have increasingly exploited the low threshold of proof necessary to convict suspected terrorists on “material support” charges, according to reports by the Center on Law and Security (PDF, 1.2 MB) and a paper in the Southern California Law Review.

Jurors in Raleigh won’t be asked to determine whether the defendants committed any violent acts, nor will the prosecution have to name the terrorism groups Boyd and his cohorts allegedly might have supported. Instead, they will have to judge the men’s intent based on the evidence.

For the past eight years, the material support charge “has been prosecutors’ charge of choice” in terrorism trials, says David Schanzer, professor of public policy at Duke University and the director of the Triangle Center on Terrorism and Homeland Security.

“The thresholds of proof are fairly low,” he says. “That’s what’s been easiest to bring in a lot of these domestic terrorism cases. Usually they’ve been cut off before any violent acts occur.”

In a 2007 paper published in the Southern California Law Review (PDF, 407 KB), Wake Forest University School of Law professor Robert Chesney writes that the material charge reflects a shift toward “anticipatory prosecution.” He adds that it had been used to “incapacitate a potentially dangerous person in preliminary circumstances that otherwise might be entirely beyond prosecution.”

However, the material support charge has not always proven successful. Two men initially convicted of the charge as part of the so-called Detroit Sleeper Cell case were acquitted in 2004 after the Justice Department found the prosecution had withheld evidence. Sami Al-Arian, a Palestinian computer engineering professor who allegedly spoke in favor of terrorist acts and offered to manage a terrorist group’s money, was acquitted of the charge in 2005. He later pleaded guilty to a lesser charge and remained in jail for more than five years.

In the North Carolina case, the prosecution will try to build its material support case by showing the defendants bought guns, exchanged money, traveled abroad and trained in military tactics as part of a conspiracy. None of the charges involves directly supporting terrorism organizations, which is a separate “companion” charge, according to Scott Silliman, executive director at Duke University’s Center on Law, Ethics and National Security.

“The plan was to go to Israel, to Gaza, and Jordan to hook up with terrorists,” Silliman says of the indictment. “But those terrorists were never named, so you don’t know if they were part of a foreign terrorism organization. You don’t know if they’re Al Qaeda or Hamas. The charge is just providing support to terrorists. You don’t have to have a specific named terrorist.

“If they prove the fact they were training with AK-47s, and you put that together with trips overseas, and you put that together with statements, providing weapons training, providing money, all those are in the statute and are considered material support,” Silliman went on. “If you’ve proven [the overt acts] then you’ve proven the charge. All the prosecution has to do is prove they intended to do those things.”

For example, José Padilla was convicted of charges of providing material support to terrorists and conspiracy to murder persons abroad, with no mention of an original charge that he plotted a “dirty bomb.” Ali Saleh Kahlah al-Marri, who was held without charges in solitary confinement for more than five years, pleaded guilty in 2009 to a material support charge.

In several high-profile domestic terrorism cases, the charge has proven successful where other terrorism charges ended in mistrials or acquittals. In the so-called Liberty City Six case in Miami and the Holy Land Foundation case in Texas, federal prosecutors obtained convictions on material support charges after previously failing to do so on other terrorism-related charges.

These successes are due, in part, to the charge’s vagueness and to the low threshold for proof.

“That’s a strategic decision the U.S. attorney in Raleigh had to make a decision on. The FBI had to make a decision on it. It’s true in just about every type of terrorism case where they’re looking at a group for a long time. If you cut it off too early, you may jeopardize the prosecution. If you wait too late to intervene, you risk the possibility of an attack actually taking place, and you didn’t stop it in time,” Silliman says.

In terrorism cases, the FBI is given greater leniency in building the case. Following the Foreign Intelligence Surveillance Act of 1978, a special judge can authorize law enforcement to wiretap a foreign power, agent of a foreign power or an independent terrorist without satisfying the usual probable cause requirements for search warrants.

“The very designation of being a foreign power, an agent of a foreign power or an independent terrorist carries with it criminality. So you don’t have to prove that a crime was committed,” Silliman says.

In this case, the FBIin conjunction with state and local investigatorsobtained a wiretap through FISA (PDF, 18 KB), according to court documents. The indictment refers to several conversations and at least one e-mail exchange among defendants.

However, it is uncertain if the evidence will be enough to convince a jury of the defendants’ guilt.

“We can think we have all the evidence in the world, that’s it a slam dunk, but if someone believes that it’s not enough, that’s up to the jury to decide,’ says Amy Thoreson of the FBI. “That’s where this should be decided.”

Correction (Aug. 5, 2009): Only Daniel Boyd and two co-defendants face the charge of possession of a firearm in the furtherance of a crime of violence.