Summary
- Money is fungible. As the House Judiciary Committee has concluded, funds that “help[] defray the cost to [a] terrorist organization of running [its] ostensibly legitimate activities … in turn frees an equal sum that can then be spent on terrorist activities”.
- Therefore, since 2005, federal law has made any alien inadmissible or deportable who has provided material support to a designated terrorist organization.
- Last summer, the Biden administration weakened this vital provision, deciding that it is OK for an alien to provide “insignificant material support” and “limited material support under circumstances involving certain routine commercial transactions, certain routine social transactions … certain humanitarian assistance, or substantial pressure that does not rise to the level of duress, to a designated terrorist organization … or to any member of such organization.”
- Hamas has been a designated terrorist organization since 1997. So, to the Biden administration, it’s fine for an alien to do business with Hamas as long as they don’t receive the employee discount. It’s fine to satisfy family, social, or cultural obligations to Hamas — even if they involve “defending the faith”? It’s fine to provide “humanitarian” assistance to Hamas. We wouldn’t want its legions to have to go without shelter, sheets, and showers. It’s fine to provide material support to Hamas if not doing so would mean losing out on a bonus or promotion at work.
- I urge the Biden administration to immediately reverse its reckless policy. But if Biden is not willing to go that far, I would simply urge that his administration immediately reverse its decision with respect to material support to Hamas. Regardless of whether DHS could do so retroactively with regard to aliens who provided material support since last June, DHS and the State Department can certainly reverse their decision regarding material support provided to Hamas in the future.
Hamas and Material Support
On Tuesday, President Biden eloquently proclaimed that:
[T]here are moments in this life — and I mean this literally — when the pure, unadulterated evil is unleashed on this world.
The people of Israel lived through one such moment this weekend. The bloody hands of the terrorist organization Hamas — a group whose stated purpose for being is to kill Jews.
This was an act of sheer evil.
More than 1,000 civilians slaughtered — not just killed, slaughtered — in Israel. Among them, at least 14 American citizens killed.
Parents butchered using their bodies to try to protect their children.
Stomach-turning reports of being — babies being killed.
Entire families slain.
…
The brutality of Hamas — this bloodthirstiness — brings to mind the worst — the worst rampages of ISIS.
This is terrorism.
In 1996, Congress declared 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” and the House Judiciary Committee stated that:
[We] recognize[] the fungibility of financial resources and other types of material support. Allowing an individual to supply funds, goods, or services … helps defray the cost to the terrorist organization of running the ostensibly legitimate activities. This in turn frees an equal sum that can then be spent on terrorist activities.
The late Sen. Dianne Feinstein (D-Calif.) stated that:
Some have raised the objection that certain groups, that may conduct terrorist operations, also run humanitarian or social service operations, like schools and clinics. But I simply do not accept that so-called humanitarian works by terrorist groups can be kept separate from their other operations. I think the money will ultimately go to bombs and bullets, rather than babies, or, because money is fungible, it will free up other funds to be used on terrorist activities.
Even the 9th Circuit Court of Appeals concluded that:
Material support given to a terrorist organization can be used to promote the organization’s unlawful activities, regardless of donor intent. Once the support is given, the donor has no control over how it is used. … [A]ll material support given to such organizations aids their unlawful goals. [T]errorist organizations do not maintain open books. Therefore, when someone makes a donation to them, there is no way to tell how the donation is used. … More fundamentally, money is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts.
“Humanitarian” support has specifically benefited Hamas in the past. For example, FBI Director Chris Wray, then assistant attorney general for the Criminal Division, told the Senate Judiciary Committee in 2004 that:
[M]aterial support of any kind is fungible and frees up resources that may then be used to promote violence [and] the provision of any material support facilitates and furthers the organization’s unlawful and violent activities regardless of the benign intent of the donor. … Matthew Levitt … describes how Hamas charity committees, mosque classes, student unions, and sport clubs serve as places where Hamas activists recruit Palestinian youth for terrorist training courses … or for suicidal terrorist attacks. … Hamas-run schools and summer camps begin indoctrinating children as early as kindergarten for later use as suicide bombers. … [E]ven if individuals … are somehow able to ensure that … money is spent … only for humanitarian activities … [it] enables these groups to gain more general support, loyalty, and popularity among the local people and to earn a measure of legitimacy. [Emphasis added.]
The USA PATRIOT Act and the REAL ID Act
In the aftermath of 9/11, Congress worked diligently to strengthen the terrorism grounds of inadmissibility and deportability and, recognizing that there is no such thing as “good” aid to a terrorist organization, to strengthen the grounds based on the provision of material support. Through his dogged and canny leadership, House Judiciary Committee Chairman F. James Sensenbrenner, Jr., was able to secure the enactment of the USA-PATRIOT Act of 2001 and the REAL ID Act of 2005 with provisions dramatically strengthening these grounds. I and my colleague Andrew Arthur had the honor of assisting Chairman Sensenbrenner in his efforts.
Prior to the USA PATRIOT Act, the Immigration and Nationality Act (INA) provided that:
[An alien is inadmissible or deportable for] afford[ing] material support to any individual, organization, or government in conducting a terrorist activity at any time, including … [t]he providing of any type of material support, including a safe house, transportation, communications, funds, false documentation or identification, weapons, explosives, or training, to any individual the actor knows or has reason to believe has committed or plans to commit a terrorist activity. [Emphasis added.]
Thus, the material support had to be tied to “conducting a terrorist activity” or given to someone who “has committed or plans to commit a terrorist activity”. Following changes made by the USA PATRIOT Act in 2001 and the REAL ID Act in 2005, the INA now provides that:
[An alien is inadmissible or deportable for] afford[ing] material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training … for the commission of a terrorist activity; … to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; … to a [group designated as a] terrorist organization [by the Secretary of State] or to any member of such an organization; or … to a terrorist organization [not so designated], or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization. [Emphasis added.]
Thus, now any material support to a designated terrorist organization is proscribed and the key question as to whether the provision of such support to a non-designated terrorist organization is a ground of inadmissibility or deportability is whether the alien “did not know, and should not reasonably have known, that the organization was a terrorist organization” — not whether their support went to a specific terrorist act.
Federal law enforcement has recognized the importance of these changes. In 2007, Paul Rosenzweig, then deputy assistant secretary for policy at the Department of Homeland Security (DHS), testified before the Senate Judiciary Committee that:
Let me … reiterate[e] precisely why … material support provisions are so vital to our national security. … [T]his [material support] law … has allowed [us] to remove a Saudi national who had paid for and helped run the website for an al Qaeda front group. … And it allowed us to deport a supporter and fundraiser for the Benevolence International Foundation, whose associates in the United States conspired to support the Taliban.
The Biden Administration’s Folly
I wrote a little more than a year ago regarding a then-new Biden administration policy on the immigration consequences of providing support to terrorist organizations. The administration decided to roll back much of the progress made since 9/11, seemingly under the maxim of “What’s good for JEM (Jaish-e-Mohammed) is good for America.”
Last June, DHS and the State Department (DOS) published a notice providing that “as a matter of discretion”, the grounds of admissibility and deportability regarding the provision of material support to an organization designated by the secretary of State as a foreign terrorist organization:
shall not apply with respect to an individual who provided … insignificant material support (i.e., support that was minimal in amount and inconsequential in effect); or … limited material support under circumstances involving certain routine commercial transactions, certain routine social transactions (i.e., in the satisfaction of certain well-established or verifiable family, social, or cultural obligations), certain humanitarian assistance, or substantial pressure that does not rise to the level of duress, to a designated terrorist organization … or to any member of such organization. [Emphasis added.]
At least when the Obama administration established similar exemptions, it did so only regarding terrorist organizations that had not been designated as foreign terrorist organizations. The Biden administration was even more reckless, providing exemptions with regards to designated terrorist organizations! As former Sen. Jon Kyl has stated, “[t][he State Department’s FTO list includes some of the most bloodthirsty terrorist organizations on the planet.” In fact:
[T]he Secretary can only designate foreign terrorist organizations] if the Secretary finds that— (A) the organization is a foreign organization; (B) the organization engages in terrorist activity … or retains the capability and intent to engage in terrorist activity or terrorism … and (C) the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States. [Emphasis added.]
Hamas has been a designated terrorist organization since 1997. Let’s simply call the DHS-DOS notice a death notice, for that is what it will bring about, if it has not already.
Let me try to unpack the Biden administration’s notice:
-
What are “routine commercial transactions” supposed to mean? When the Obama administration established similar exemptions, it explained that:
[A] commercial transaction is routine if the transaction occurred on substantially the same terms as other transactions of the same type, regardless of the parties to the transaction, and the transaction was consistent with established practice.
Great, it’s fine to do business with Hamas and its members as long as an alien doesn’t receive the employee discount. How could this possibly benefit Hamas?
-
What are “family, social or cultural obligations”? The Obama administration explained that:
[A social transaction is one that] satisfies and is motivated by specific, compelling, and well established or verifiable family, social, or cultural obligation(s) or expectation(s) … no different than support that the applicant, or a similarly situated member of the applicant’s family or community, would provide or did provide under similar circumstances to others who were not members of a[] … terrorist organization.
Great, it is fine to satisfy family, social, or cultural obligations to Hamas and its members. What if the family, social, or cultural obligation involve assisting those “defending the faith”? How could this possibly benefit Hamas?
-
What is humanitarian assistance to a terrorist organization? The Obama administration explained that:
[Humanitarian assistance] means aid provided with the purpose of saving lives and alleviating suffering [such as s]eek[ing] to address basic and urgent needs such as food, water, temporary shelter, and hygiene … is often short-term and generally triggered by an emergency situation, but also may be provided in protracted situations of conflict or displacement over an extended period of time … [and] is provided on the basis of need, according to principles of universality, impartiality, and human dignity.
Great, it is fine to provide humanitarian assistance to Hamas and its members in protracted situations of conflict over an extended period of time. How could this possibly benefit Hamas? We wouldn’t want its legions to have to go without shelter, sheets, and showers.
-
What is “pressure” that doesn’t even rise to the level of duress? The Obama administration explained that:
[Pressure is a] reasonably perceived threat of physical or economic harm, restraint, or serious harassment, leaving little or no reasonable alternative to complying with a demand … if providing the support is the only reasonable means by which the applicant may carry out important activities of his or her daily life [and] the applicant must have actually felt sufficient pressure that left him or her no reasonable alternative.
Great, it is fine to provide material support to Hamas and its members if not doing so would mean losing out on a bonus or promotion at work. How could this possibly benefit Hamas? Pretty much every alien subject to the material support grounds of inadmissibility or deportability will claim they were “under pressure”.
The Biden administration’s notice goes on to say that to receive an exemption:
- ”An alien must “not [have] voluntarily and knowingly engage[d] in terrorist activity on behalf of a designated terrorist organization”. Besides the point.
- An alien must not have “provided the material support with any intent or desire to assist any terrorist organization or terrorist activity”. Material support inevitably assists a terrorist organization.
- An alien must not have “provided material support that the individual knew or reasonably should have known could directly be used to engage in terrorist or violent activity”. Money is fungible!
- An alien must not have “provided material support to terrorist activities that they knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests”. Money is fungible!
- An alien must not have “provided material support that the individual knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items”. Money is fungible!
- An alien must “pose[] no danger to the safety and security of the United States”. I’ll trust the Biden administration to ferret this out, as it did so well regarding Afghans it airlifted out after its calamitous retreat from Afghanistan. By definition, tier I terrorist organizations have already been found to threaten the security of U.S. nationals or our national security!
- An alien must “warrant[] an exemption … in the totality of the circumstances.” I’ll trust the Biden administration on this one!
Why did the Biden administration take this reckless step? At least part of the reason is likely that aliens who are inadmissible or deportable on material support of terrorism grounds are ineligible for asylum and withholding of removal. Given the Biden administration’s goal of granting asylum to as many illegal aliens as possible, this removes a large impediment. As CIS Executive Director Mark Krikorian has pointed out, “the White House plan for dealing with the surge of new illegal immigration — which will come on top of the existing historic surge of illegal immigration — is not to halt the surge but to launder it by granting asylum immediately to virtually all those who jump the border.”
Conclusion
As I did last June, I urge the Biden administration to immediately reverse its death notice. But if not willing to go that far, I would simply urge that it immediately reverse its death notice with respect to material support provided to Hamas. Regardless of whether DHS would be able to do so retroactively with regard to aliens who have provided material support to Hamas since last June, it can certainly rescind the notice regarding material support provided to Hamas in the future.
President Biden remarked on Tuesday that “The United States has Israel’s back. We will make sure the Jewish and democratic State of Israel can defend itself today, tomorrow, as we always have.” Rescinding his administration’s reckless death notice would be good start.
