The Emerging Face of Lawfare: Legal Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing
FORDHAM INTERNATIONAL LAW JOURNAL
Fordham International Law Journal
Brooke Goldstein
Benjamin Rybergy
-
2013
Article 4
y
Copyright c 2013 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
THE EMERGING FACE OF LAHTARE: LEGAL
MANEUVERING DESIGNED TO HINDER THE
EXPOSURE OF TERRORISM AND TERROR
FINANCING
Brooke Goldstein ' & Benjamin Ryberg
INTRODUCTION
...................................... 634
I. LAWFARE AGAINST FREE SPEECH IN EUROPE &
CANADA
.........
.............. 638
B. The Organization of Islamic Cooperation (OIC) ..... 650
IV. IMPACT OF LAWFARE ON U.S. DOMESTIC POLICY ..... 652
CONCLUSION
.
................
655
INTRODUCTION
In December 2001, shortly after the 9/11 attacks on
American soil, President George W. Bush joined Treasury
Secretary Paul O'Neill and Attorney General John Ashcroft at a
press conference and proclaimed, "Those who do business with
terror will do no business with the United States or anywhere the
United States can reach." I The previous day, the Treasury
* Brooke Goldstein is a New York City based human rights attorney. She is the
founder and Director of The Law-fare Project as well as the Children's Rights Institute
and a regular commentator on Fox News. Goldstein is also the co-author of the book
Lawfare: The 1ar Against Free Speech-A Firt Amendment Guide for Reporting in an Age of
IslamistLawfare.
** Benjamin Ryberg is an attorney and the Director of Research at The Lawfare
Project. He received his B.A. from the University of Michigan and his 1) from the
Benjamin N. Cardozo School of Law, where he was published in and served as Senior
Aiticles Editor of the CardozoJournalof Internationaland ComparativeLaw.
1. President George W. Bush, Remarks on Freezing Assets of Suspected Terrorist
Groups (Dec. 4, 2001) [hereinafter President Bush Remarks], available at
20131 CURTAILING TERRORISM AND TERROR FINANCING 635
Department had frozen the assets of the Holy Land Foundation
for Relief and Development ("HLF").2 At the time, HLF was the
largest charitable Islamic organization in the United States. An
Internal Revenue Service ("IRS") -registered tax-exempt charity,
the HLF raised thirteen million US dollars from US donors in
2010.4 Falsely claiming that donated funds were used to "care
for needy Palestinians in the West Bank and Gaza," the money
was actually used to support Hamas, a designated foreign
terrorist organization ("FTO").5 Hamas used the money to,
amongst other things, bankroll murder overseas, support
schools that indoctrinate children towards violence, recruit
suicide bombers, and provide monetary rewards to their
families."
Despite the United States' growing concern with
international terrorism, and though terrorist groups had long
been using non-profit organizations to solicit tax-exempt
donations from the United States, the Treasury "did not
consider terrorist financing important enough to mention in its
national strategy for money laundering" before 9/ 11.7 However,
the provision of "material support or resources" for the
commission
of enumerated acts of terrorism8 or to designated
FTOs9 has been outlawed in the United States since the
mid1990s, as codified in 18 U.S.C. § 2339A and 2339B.1 1o
Congress enacted § 2339A as part of the Violent Crime
Control and Law Enforcement Act of 1994.) The definition of
material support was later expanded by § 2339B when Congress
enacted the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA").12 The post-9/11 USA PATRIOT Act bolstered
both sections on material support, adding "expert advice or
assistance" to the list of prohibited material support, increasing
the maximum terms of imprisonment for violating the statutes,
and imposing the same maximum penalties for attempts and
conspiracies to violate § 2339A as are imposed for substantive
violations thereof.
Today, both § 2339A and 2339B define "material support
or resources as:
[A] ny property, tangible or intangible, or service, including
currency or monetary instruments or financial securities,
financial services, lodging, training, expert advice or
assistance, safehouses. false documentation or
identification. communications equipment, facilities,
weapons, lethal substances, explosives, personnel (1 or
more individuals who may be or include oneself), and
transportation, except medicine or religious materials. 4
In the recently decided case Holder v. HumanitarianLaw
Project, the US Supreme Court held that even "ostensibly
peaceful aid" to designated terrorist groups may be criminalized
for its harmful effects, specifically recognizing Congress's
9. Id. 233911. A "terrorist organization" to which "naterial support or resources"
is defined as "an organization designated as a terrorist organization under section 219
of the Immigration and Nationality Act." Id. 233911(g)(6); see 8 1U.S.C. § 1189
(designating FTOs).
10. See 18 U.S.C. § 2339A, 2339B: see generally CHARLE (...truncated)