Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

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Terrorist Material Support: An Overview of

18 U.S.C. § 2339A and § 2339B

Updated August 15, 2023

Congressional Research Service

https://crsreports.congress.gov

R41333

SUMMARY

Terrorist Material Support: An Overview of

18 U.S.C. § 2339A and § 2339B

The material support statutes, 18 U.S.C. § 2339A and § 2339B, have been among the

most frequently prosecuted federal anti-terrorism statutes. Section 2339A outlaws:

R41333

August 15, 2023

Charles Doyle

Senior Specialist in

American Public Law

(1) whoever

(2) [knowingly]

(3)(a) attempting to,

(b) conspiring to, or

(4)(a) providing material support or resources, or

(b) concealing or disguising

(i) the nature,

(ii) location,

(iii) source, or

(iv) ownership of material support or resources

(5) knowing or intending that they be used

(a) in preparation for,

(b) in carrying out,

(d) in carrying out the concealment of an escape from

(6) an offense identified as a federal crime of terrorism.

Section 2339B outlaws:

(1) whoever

(2) knowingly

(3)(a) attempting to provide,

(b) conspiring to provide, or

(4) material support or resources

(5) to a foreign terrorist organization

(6) knowing that the organization

(a) has been designated a foreign terrorist organization, or

(b) engages, or has engaged, in “terrorism” or “terrorist activity.”

The sections each define the term “material support or resources” to mean any service or tangible or intangible

property. The Supreme Court in Humanitarian Law Project upheld § 2339B, as applied, against challenges that it

was unconstitutionally vague and inconsistent with the First Amendment’s freedom of speech and freedom of

association requirements. Violations of § 2339A are punishable by imprisonment for not more than 15 years;

violations of § 2339B by imprisonment for not more than 20 years. Although the sections do not create a civil

cause of action for victims, treble damages and attorneys’ fees may be available for some victims under 18 U.S.C.

§ 2333, which Congress clarified in 2016 to expressly extend to anyone who aids and abets the victimizing

commission of an act of international terrorism.

Section 2339B has two extraterritorial jurisdiction provisions. One is general, providing for extraterritorial jurisdiction over

an offense (“there is extraterritorial jurisdiction over an offense under this section”), and the other enumerates categories in

which extraterritorial jurisdiction is provided (for example, the offender is a U.S. national). Section 2339A has no such

provisions, but it likely applies overseas at least when its predicate offense or offenses have extraterritorial reach.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Contents

Introduction ..................................................................................................................................... 1

Background ..................................................................................................................................... 1

Support of Terrorism (18 U.S.C. § 2339A) ..................................................................................... 2

Whoever .................................................................................................................................... 3

Knowingly ................................................................................................................................. 4

Provides ..................................................................................................................................... 5

Concealing or Disguising Material Support .............................................................................. 5

Material Support........................................................................................................................ 6

Use in Relation to a Federal Crime of Terrorism ...................................................................... 7

Attempt, Conspiracy, Aiding and Abetting ............................................................................... 8

Consequences of Charge or Conviction .................................................................................. 10

Federal Crime of Terrorism............................................................................................... 10

Extraterritorial Jurisdiction ...................................................................................................... 11

Venue ....................................................................................................................................... 12

Defenses .................................................................................................................................. 13

Civil Actions............................................................................................................................ 13

Support of Designated Terrorist Organizations (18 U.S.C. § 2339B) ........................................... 16

Whoever .................................................................................................................................. 17

Knowingly ............................................................................................................................... 17

Provides ................................................................................................................................... 18

Material Support...................................................................................................................... 18

Terrorist Organizations ............................................................................................................ 20

Designated Terrorist Organizations................................................................................... 21

Attempt, Conspiracy, Aiding and Abetting ............................................................................. 22

Consequences of Charge or Conviction .................................................................................. 24

Federal Crime of Terrorism............................................................................................... 26

Extraterritorial Jurisdiction ..................................................................................................... 27

Civil Actions............................................................................................................................ 28

Reporting Requirements ................................................................................................... 30

Protection of Classified Information ................................................................................. 30

Contacts

Author Information........................................................................................................................ 32

Congressional Research Service

Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Introduction

Two federal material support statutes sit at the heart of the Justice Department’s terrorist

prosecution efforts.1 One provision, 18 U.S.C. § 2339A, outlaws providing material support for

the commission of certain designated offenses that might be committed by terrorists. The other,

18 U.S.C. § 2339B, outlaws providing material support to certain designated terrorist

organizations. They share a common definition of the term “material support,” augmented to

some extent in § 2339B cases. 2

Background

Since their inception in the mid-1990s, Congress has periodically expanded and sought to clarify

the scope of § 2339A and § 2339B. Section 2339A passed with little fanfare as part of a wideranging crime package, the Violent Crime Control and Law Enforcement Act of 1994.3 Almost

immediately, Congress amended § 2339A and supplemented it with § 2339B as part of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).4 As the House committee

report explained, § 2339B reflected a recognition of

the fungibility of financial resources and other types of material support. Allowing an

individual to supply funds, goods, or services to an organization, or to any of its subgroups,

1This report is available in an abridged version as CRS Report R41334, Terrorist Material Support: A Sketch of 18

U.S.C. § 2339A and § 2339B, without the footnotes, citations to authority, attributions, or attachments found here.

2 A Review of the Material Support to Terrorism Prohibition Improvements Act: Hearing Before the Subcomm. on

Terrorism, Technology and Homeland Security, 109th Cong., 1st Sess. 45 (2005) (statement of Barry Sabin, Chief,

Counterterrorism Section, U.S. Dept. of Justice); Implementation of the USA PATRIOT Act: Prohibition of Material

Support Under Sections 805 of the USA PATRIOT Act and 6603 of the Intelligence Reform and Terrorism Prevention

Act of 2004, 109th Cong., 1st Sess. 18 (2005) (statement of Barry Sabin, Chief, Counterterrorism Section, U.S. Dept. of

Justice); David Cole, Out of the Shadows: Preventive Detention, Suspected Terrorists, and War, 97 CAL. L. REV. 693,

723 (2009) (“The most important of these statutes is 18 U.S.C. § 2339B . . . . [R]arely enforced before 9/11, it has since

become a principal tool in the Justice Department’s ‘terrorism’ prosecutions.”); Francesca Laguardia, Considering a

Domestic Terrorism Statute and Its Alternatives, 114 NW. U. L. REV. 1061, 1071 (2020); (“[M]ost ‘terrorism

prosecutions’ are material support prosecutions under § 2339B. Exemplifying this point, the Center on National

Security has found that over 66% of ISIS prosecutions have been § 2339B prosecutions.”); Shirin Sinnar, Separate and

Unequal: The Law of Domestic and International Terrorism, 117 MICH. L. REV. 1333, 1356 (2019) (“Indeed, attempt

or conspiracy to provide material support are exceedingly common charges in international terrorism cases.”).

3 Pub. L. No. 103-322, § 120005, 108 STAT. 2022 (1994). The Violent Crime Control and Law Enforcement Act was a

355-page amalgam of legislative proposals consisting of 33 separate titles which included Cop on the Beat grants, the

Violence Against Women Act, revival of the death penalty as a federal sentencing alternative, a ban on assault

weapons, DNA identification, and crime victims’ rights. Its various components were the subject of two dozen House

committee reports, listed in 1994 U.S.C.C.A.N. 1801 (1994), none which appear to have addressed § 2339A. The

section, however, was included in much the same language in separate legislative proposals offered by members of

both parties in both Houses during the 103d Congress, see e.g., H.R. 1301, 103rd Cong. § 110 (Representative

Schumer); H.R. 2807, 103rd Cong. § 702 (Representative Sensenbrenner); H.R. 2872, 103rd Cong. § 421 103rd Cong.

(Representative McCullom); H.R. 3131, 103rd Cong. (Representative Brooks); S. 8, 103rd Cong. § 702 (Senator

Hatch); S. 1488, 103rd Cong. § 726 (Senator Biden).

4 Pub. L. No. 104-132, §§ 323, 303, 110 STAT. 1255, 1250, respectively. Section 323 amended § 2339A to enlarged its

predicate offense list to include 18 U.S.C. §§ 37 (relating to violence at international airports), 81 (relating to arson),

175 (relating to biological weapons), 831 (relating to nuclear weapons), 842(m) and (n) (relating to plastic explosives),

1362 (relating to destruction of communications facilities), 2155 and 2156 (relating to destruction, or defective

production, of war materials), 2332 (relating to terrorist violence against Americans overseas), 2332a (relating to

weapons of mass destruction), and 2332b (multi-national terrorism). Later in the year, Congress added three other

crimes to § 2339A’s predicate offense list: 18 U.S.C. §§ 930(c) (relating to use of a firearm during a murderous attack

on a federal facility), 1992 (relating to train wrecking), and 2332c (relating to chemical weapons). Economic Espionage

Act of 1996, Pub. L. No. 104-294, § 601(b)(2), (s)(2), (s)(3), 110 STAT. 3502, 3506 (1996).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

that draw significant funding from the main organization’s treasury, helps defray the costs

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. 5

In 2001, the USA PATRIOT Act amended both sections, (1) increasing the maximum term of

imprisonment from 10 to 15 years (and to life imprisonment when commission of the offense

resulted in death); (2) adding “expert advice or assistance” to forms of proscribed material

support or resources; and (3) subjecting attempts and conspiracies to violate § 2339A to the same

maximum penalties as the substantive violation of the section.6

The Intelligence Reform and Terrorism Prevention Act of 2004 amended the definition of

“material support or resources” that applies to both sections.7 The specific forms of support

previously used to define the term became examples in a more general definition which covers

“any property, tangible or intangible, or service.”8 Congress added clarifying definitions for

“training” and “expert advice or assistance,” and a clarifying explanation of the term “personnel”

in § 2339B. At the same time, the predicate offense list of § 2339A expanded to cover any of the

federal crimes of terrorism.9

In 2009, Congress added genocide and recruiting child soldiers to § 2339A’s predicate offense

list10 and adjusted § 2339B’s deadlines for the government’s interlocutory appeals relating to

classified information.11 In 2015, it increased the maximum penalty for violating § 2339B from

imprisonment for not more than 15 years to imprisonment for not more than 20 years.12

In 2016, Congress amended § 2333 to make it clear that civil liability for international terrorist

offenses extends to those who aid and abet the commission of those offenses.13 Congress further

amended § 2333 in 2018 to permit the use of certain blocked assets to satisfy judgments of U.S.

nationals secured against a “terrorist party.”14

Support of Terrorism (18 U.S.C. § 2339A)

Section 2339A outlaws support or concealing support for the crimes a terrorist has committed or

may be planning to commit. More precisely, § 2339A provides:

(1) whoever

5 H.R. REP. NO.104-383, 81 (1995). AEDPA also eliminated a restriction on § 2339A investigations which the report

characterized as “effectively negat[ing] the efficacy of § 2339A.” Id. at 82.

6 Pub. L. No. 107-56, §§ 805(a), 810(c), (d), 811, 115 STAT. 377, 380, 381 (2001). At the time, attempts and

conspiracies to violate § 2339B were already subject to the same maximum penalty as the underlying substantive

offense, 18 U.S.C. § 2339B (2000).

7 Pub. L. No. 108-458, § 6603, 118 STAT. 3762 (codified at 18 U.S.C. § 2339B(g)(4) (2006)). The amendments,

initially temporary, were made permanent in the USA PATRIOT Act Improvement and Reauthorization Act of 2005,

Pub. L. No. 109-177, § 104, 120 STAT. 195 (2006).

8 18 U.S.C. § 2339A(b)(1).

9 Id. § 2339A(a).

10 Human Rights Enforcement Act of 2009, Pub. L. No. 111-122, § 3(d), 123 STAT. 3481-82 (codified at 18 U.S.C.

§ 2339A(a)).

11 Statutory Time-Periods Technical Amendments Act of 2009, Pub. L. No. 111-16, §§ 3(6), (3)7, 3(8), 123 STAT. 1608

(codified at 18 U.S.C. § 2339B(f)(5)(B)(ii), (f)(5)(B)(iii)(I), (f)(5)(B)(iii)(III)).

12 USA FREEDOM Act of 2015, Pub. L. No. 114-23, tit. VI, §704, 129 STAT. 300.

13 Justice Against Sponsors of Terrorism Act, Pub. L. No. 114-222, § 4, 133 STAT. 852 (2016) (codified at 18 U.S.C.

§ 2333(d)).

14 Anti-Terrorism Clarification Act of 2018, Pub. L. No. 115-253, 132 STAT. 3182 (codified at 18 U.S.C. § 2333(e)).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

(2) [knowingly]

(3)(a) attempts to,

(b) conspires to, or

(4)(a) provides material support or resources, or

(b) conceals or disguises

i. the nature,

ii. location,

iii. source, or

iv. ownership

of material support or resources

(5) knowing or intending that they be used

(a) in preparation for,

(b) in carrying out,

(d) in carrying out the concealment of an escape from

(5) an offense identified as a federal crime of terrorism.15

Whoever

“Whoever” usually means any legal entity or individual. The Dictionary Act declares that “In

determining the meaning of any Act of Congress, unless the context indicates otherwise . . . the

words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships,

societies, and joint stock companies, as well as individuals.”16 Elsewhere, courts have looked to

the Dictionary Act when construing a federal criminal statute.17 Moreover, federal law now

generally holds that corporations are criminally liable for crimes committed by their officers,

employees, or agents within the scope of their employment and for the benefit of the

corporation,18 although at common law corporations could not be held criminally liable.19

15 More exactly, § 2339A(a) declares, “Whoever provides material support or resources or conceals or disguises the

nature, location, source, or ownership of material support or resources, knowing or intending that they are to be used in

preparation for, or in carrying out, a violation of section 32, 37, 81, 175, 229, 351, 831, 842(m) or (n), 844(f) or (i),

930(c), 956, 1091, 1114, 1116, 1203, 1361, 1362, 1363, 1366, 1751, 1992, 2155, 2156, 2280, 2281, 2332, 2332a,

2332b, 2332f, 2340A, or 2442 of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), section

46502 or 60123(b) of Title 49, or any offense listed in section 2332b(g)(5)(B) (except for sections 2339A and 2339B)

or in preparation for, or in carrying out, the concealment of an escape from the commission of any such violation, or

attempts or conspires to do such an act, shall be fined under this title, imprisoned not more than 15 years, or both, and,

if the death of any person results, shall be imprisoned for any term of years or for life. . . . ”.

Here and elsewhere “knowingly” has been added to the section’s elements to reflect the requirement that aid be given

“knowing or intending” that it will be used in connection with a terrorist predicate offense.

16 1 U.S.C. § 1.

17 E.g., United States v. A & P Trucking Co., 358 U.S. 121, 123 (1958); United States v. Polizzi, 500 F.2d 856, 907

(9th Cir. 1974); United States v. George, 946 F.3d 643, 647 (4th Cir. 2020) (“Congress drafted the identity theft statutes

using the term ‘person,’ which the Dictionary Act defines as . . . ”); United States v. Ruzicka, 331 F. Supp. 3d 888, 893

n.2 (D. Minn. 2018) (“While the CVRA [Crime Victims’ Rights Act] does not define ‘person,’ the Dictionary Act

defines ‘person’ to include both individuals and corporations.”).

18 United States v. Grayson Enters., 950 F.3d 386, 407–08 (7th Cir. 2020); United States v. Agosto-Vega, 617 F.3d

541, 552–53 (1st Cir. 2010); United States v. Singh, 518 F.3d 236, 249–50 (4th Cir. 2008); see generally CRS Report

R43293, Corporate Criminal Liability: An Overview of Federal Law, by Charles Doyle.

19 I WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 464 (1765) (“A corporation cannot commit

treason, or felony, or other crime, in its corporate capacity: though its members may, in their distinct individual

capacities.”) (transliteration provided).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Knowingly

At common law, every crime consisted of two essentials, one mental (mens rea) and the other

physical (actus reus).20 As Justice Jackson explained, “[c]rime, as a compound concept, generally

constituted only from the concurrence of an evil-meaning mind with an evil-doing hand.”21 Later,

legislative bodies, Congress included, from time to time created criminal offenses which had no

mental component, no mens rea.22 This type of strict liability occurred most often for regulatory,

“public welfare” misconduct, misconduct that did not constitute a common law crime.23 These

offenses ordinarily carried fines or short periods of incarceration.24 Courts and commentators

came to associate the lack of a mens rea with less severely punished offenses.25

The Supreme Court has stopped short of equating felony status with the intent to require a mens

rea component. In Staples, however, it declared that where “dispensing with mens rea would

require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is

a further factor tending to suggest that Congress did not intend to eliminate a mens rea

requirement. In such a case, the usual presumption that a defendant must know the facts that

make his conduct illegal should apply.”26

Section 2339A speaks to “whoever provides” material support. Unlike § 2339B, it does not say

“whoever knowingly provides” material support. Thus, on its face, it might be thought to envelop

both those who knowingly provide support and those who unknowingly or inadvertently provide

support. Yet Staples suggests that the courts will reject such an interpretation without a clear

congressional contrary intent. Section 2339A offenses are 15-year felonies. Considered alone, this

penalty length seems to weigh heavily on the implied mens rea side of the ledger. The nature of

the support provided might suggest a more mixed result. Some of the support, like providing

lodging or training, is a form of “traditionally lawful conduct.” Some, like providing false

documentation, is not. The most telling indication of Congress’s intent, however, appears later in

the section where Congress has supplied an explicit mens rea requirement. Providing support only

Mens Rea, BLACK’S LAW DICTIONARY 1181 (11th ed. 2019) (“[Law Latin ‘guilty mind’] The state of mind that the

prosecution, to secure a conviction, must prove that a defendant had when committing a crime . . .. Mens rea is the

second of two essential elements of every crime at common law, the other being actus reus.”); see generally CRS

Report R46836, Mens Rea: An Overview of State-of-Mind Requirements for Federal Criminal Offenses, by Michael A.

Foster.

21 Morissette v. United States, 342 U.S. 246, 251 (1952) (“Crime, as a compound concept, generally constituted only

from the concurrence of an evil-meaning mind with an evil-doing hand . . . .”).

22 Id. at 253–60.

23 Id. at 255; Staples v. United States, 511 U.S. 600, 616–17 (1994).

24 Staples, 511 U.S. at 616 (“Certainly, the cases that first defined the concept of the public welfare offense almost

uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment

in the state penitentiary.”).

25 Id. at 616–17 (“As commentators have pointed out, the small penalties attached to such offenses logically

complemented the absence of a mens rea requirement: In a system that generally requires a ‘vicious will’ to establish a

crime, imposing severe punishments for offenses that require no mens rea would seem incongruous. Indeed, some

courts justified the absence of mens rea in part on the basis that the offenses did not bear the same punishments an

‘infamous crimes,’ and questioned whether imprisonment was compatible with the reduced capability required or such

regulatory offenses. Similarly, commentators collecting the early cases have argued that offenses punishable by

imprisonment cannot be understood to be public welfare offenses . . . .” (quoting Staples v. United States, 511 U.S.

600, 608 n.3 (1994))

26 Id. at 618–19 (emphasis added); see also United States v. Farah, 766 F.3d 599, 613 (6th Cir. 2014) (“Where a statute

is silent as to the mens rea requirement, the appropriate standard is whether the act is done ‘knowingly’”); Elonis v.

United States, 575 U.S. 723, 735 (2015) (“[O]ur cases have explained that a defendant generally must ‘know the facts

that make his conduct fit the definition of the offense.’” (quoting Staples v. United States, 511 U.S. 600, 608 n.3

(1994)).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

violates the section if it is provided “knowing or intending” that the support will be used to

commit or prepare for the commission of a predicate offense. A defendant cannot unknowingly

provide support or resources while at the same time “know[] or intend[] that they are to be used”

for the commission of one of the predicate offenses.

As general rule, a “knowing” mens rea standard requires the government to prove that the

defendant had “knowledge of the facts that constitute the offense.”27 The government need not

prove that the defendant knew his conduct was unlawful.28

Provides

Little is said of the meaning of the word “provides” in § 2339A or § 2339B. When a statute’s text,

its context, or its legislative history suggest otherwise, Congress is thought to have intended

common words to have their common meaning.29 The word “provide” ordinarily means “to

supply something for sustenance or support.”30 Section 2339A has no explicit definition of the

word “provide.” At least two lower federal courts have suggested that the word “provide” in §

2339A should be given its ordinary dictionary meaning.31 The section immediately following §§

2339A and 2339B states that “the term ‘provides’ includes giving, donating, and transmitting.”32

Concealing or Disguising Material Support

Section 2339A condemns both providing material support and concealing “the nature, location,

source, or ownership” of such support. The concealing prong has been part of § 2339A from its

inception33 and seems designed to reach the middle men or conduits between terrorists and their

supporters. Expansion of the definition of material support to include services and the option of

charging middle men with conspiracy or aiding and abetting may have rendered the provision

redundant. In any event, concealment charges seem to have thus far been confined to those who

have also been charged with providing support.34

27 Dixon v. United States, 548 U.S. 1, 5 (2006) (quoting Bryan v. United States, 524 U.S. 184, 193 (1998)).

28 Id.; see also United States v. Morosco, 822 F.3d 1, 20 (1st Cir. 2016); United States v. Vereen, 920 F.3d 1300, 1307–

08 (11th Cir. 2019) (“[A] ‘knowing’ mens rea ‘merely requires proof of knowledge of the facts that constitute the

offense’ ‘[A] defendant need not intend to violate the law to commit a general intent crime, but he must actually intend

to do the act that the law proscribes.’”) (first quoting United States v. Vereen, 920 F.3d 1300, 1307; and then quoting

United States v. Phillips, 19 F.3d 1565, 1567–77 (11th Cir. 1994), amended, 59 F.3d 1095 (11th Cir. 1995)).

29 Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019) (“But FOIA nowhere defines the term

‘confidential.’ So, as usual, we ask what that term’s ‘ordinary, contemporary, common meaning’ was when Congress

enacted FOIA in 1966.”); Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2072 (2018); Sandifer v. U.S. Steel Corp.,

571 U.S. 220, 227 (2014) (“[U]nless otherwise defined, words will be interpreted as taking their ordinary,

contemporary, common meaning (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); Taniguchi v. Kan Pac.

Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a statute, we give the term its ordinary

meaning.”).

30 Provide, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 2002).

31 United States v. Sattar, 314 F. Supp. 2d 279, 297 (S.D.N.Y. 2004); United States v. Abu-Jihaad, 600 F. Supp. 2d 362,

399–400 (D. Conn. 2009); see also Estate of Parsons v. Palestinian Auth., 952 F. Supp. 2d 61, 68 (D.D.C. 2013)

(agreeing with the court in Abu-Jihaad).

32 18 U.S.C. § 2339C(e)(4). Section 2339C proscribes financing terrorism.

33 S. 266, § 2101 (102d Cong.); Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,

§ 120005(a), 108 STAT. 2022 (codified at 18 U.S.C. § 2339A (1994)).

34 Kassir v. United States, 3 F.4th 556, 559 (2d Cir. 2021) (“various counts of (1) providing and concealing material

support and resources to terrorists, 18 U.S.C. §§ 2339A, 2339B . . .”); United States v. Stewart, 590 F.3d 93, 114 (2d

Cir. 2009) (“The government charged that the defendants provided ‘material support or resources’ in the form of

(continued...)

Congressional Research Service

Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Material Support

Section 2339A defines “material support” to encompass “any property, tangible or intangible, or

service.”35 The term excludes medicine and religious materials, but includes

•

currency or monetary instruments or financial securities,

financial services,

lodging,

training (i.e., instruction or teaching designed to impart a specific skill, as

opposed to general knowledge),

expert advice or assistance (i.e., advice or assistance derived from scientific,

technical, or other specialized knowledge),

safehouses,

false documentation or identification,

communications equipment, facilities,

weapons,

lethal substances,

explosives,

personnel (one or more individuals who may be or include oneself), and,

transportation,

Section 2339B alone has a more explicit description of the “personnel” covered by its

proscription, which confines the term to those provided to a foreign terrorist organization to direct

its activities or to work under its direction or control.36 The omission of a comparable provision

from § 2339A led one court to conclude § 2339A does not include the “working under the

direction or control” limitation imposed on § 2339B.37 Because § 2339A requires that the support

be given while knowing or intending that it will be used in preparation for or in the commission

of a specific terrorist offense, the section has survived challenges arguing that it is

unconstitutionally vague.38

‘personnel. . . . . The government further asserted that Stewart and Yousry ‘conceal[ed] and disguise[d] the nature,

location, and source’ of their material support by means of the defendants’ covert conduct.”); United States v. Hassoun,

476 F.3d 1181, 1183–84 (11th Cir. 2007) (“Count Three charges the defendants with violating 18 U.S.C. § 2339A(a)

by providing material support and resources, and concealing and disguising the nature thereof, all with the knowledge

and intent that the material support and resources be used in preparation for and carrying out a violation of § 956.”);

United States v. Giampietro, 614 F. Supp. 3d 612, 614 (M.D. Tenn. 2022) (“[The defendant] did knowingly conceal

and disguise the nature, location, source, ownership, and control of material support and resources, as that term is

defined in Title 18, United States Code, Section 2339A(b)(1), knowing and intending that the support and resources,

including currency, personnel, and services, were provided and were intent to be provided in violation of Title 18,

United States Code, Section 2339B.”).

35 18 U.S.C. § 2339A(b)(1).

36 18 U.S.C. § 2339B(h) (“No person may be prosecuted under this section in connection with the term ‘personnel’

unless that person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist

organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization’s

direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization. Individuals

who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be

considered to be working under the foreign terrorist organization’s direction and control.”).

37 United States v. Abu-Jihaad, 600 F. Supp. 2d 362, 400 (D. Conn. 2009).

38 Stewart, 590 F.3d at 117; United States v. Abu Khatallah, 151 F. Supp. 3d 116, 140 (D.D.C. 2015); United States v.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Use in Relation to a Federal Crime of Terrorism

Section 2339A outlaws providing or concealing support when the defendant knows or intends the

support to be used in relation to a federal crime of terrorism. The intended support must be related

to the preparation for, commission of, or the escape following, the commission of one or more of

a list of predicate terrorist offenses. The predicate offense list consists of several specifically

identified offenses, such as bombing a federal building or murdering a federal official in the

performance of his duty.39 Section 2339A’s predicate offense list ends with a cross reference to

the list of federal crimes of terrorism.40 The predicate offenses, both those identified individually

and those included because of their status as federal crimes of terrorism may, but need not, be

calculated to serve terrorist purposes.41

Section 2339A bans attempts and conspiracies. Consequently, a violation of § 2339A may occur

even if the anticipated federal crime of terrorism has not.42 On the other hand, because the section

Amawi, 545 F. Supp. 2d 681, 684 (N.D. Ohio 2008); United States v. Abdi, 498 F. Supp. 2d 1048, 1058 (S.D. Ohio

2007).

39 18 U.S.C. § 2339A(a) (“Whoever provides material support . . . knowing or intending that [it is] to be used . . . in

carrying out a violation of section 32 [destruction of aircraft and aircraft facilities], 37 [violence at international

airports], 81 [arson within the special maritime and territorial jurisdiction of the United States, 175 [biological weapons

offenses], 229 [chemical weapons offenses], 351 [assassination, kidnapping, or assaulting Members of Congress, the

Supreme Court, or the Cabinet], 831 [transactions involving nuclear material], 844(m) [importing or exporting plastic

explosives without a detection agent], 842(n) [possession of a plastic explosive without a detection agent], 844(f)

[bombing federal property], 844(i) [bombing property used in, or affecting, interstate or foreign commerce], 930(c)

[killing a person in the course of an attack on a federal facility with a firearm or dangerous weapon], 956 [conspiracy to

kill, kidnap, maim, or injure individuals, or to damage property, in a foreign country], 1091 [genocide], 1114 [killing a

federal officer, employee, or member of the armed forces], 1116 [killing internationally protected individuals], 1203

[hostage taking], 1361 [destruction of federal property], 1362 [destruction of communication lines, stations or systems],

1363 [destruction of property in the special maritime and territorial jurisdiction of the United States], 1366 [destruction

of an energy facility], 1751 [assassination, kidnapping, or assaulting of the President, Vice President, or senior White

House staff members], 1992 [terrorist on mass transit), 2155 [destruction of national defense material], 2156

[production of defective national defense material), 2280 [violence against maritime navigation], 2281 [violence

against maritime fixed platforms], 2332 [killing or assaulting a United States national outside the United States], 2332a

[use of weapons of mass destruction], 2332b [multinational acts of terrorism], 2332f [bombing public places or

infrastructure facilities], 2340A [torture abroad], or 2442 [recruiting or using child soldiers] of this title; section 236 of

the Atomic Energy Act of 1954 (42 U.S.C. 2284) [sabotage of nuclear facilities or fuel]; section 46502 [aircraft piracy]

or 60123(b) [destruction of gas pipelines] of title 49. . . . ”).

40 18 U.S.C. § 2339A(a) (“Whoever provides material support . . . knowing or intending that [it is] to be used . . . in

carrying out a violation of . . . any offense listed in section 2332b(g)(5)(B) . . . .”). The cross reference to federal crimes

of terrorism adds the following offenses to § 2339A’s predicate offense list: offenses under (i) section 175b (biological

weapons), 175c (variola virus), 832 (participation in nuclear and weapons of mass destruction threats to the United

States), 1030(a)(1) (protection of computers), 1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II)

through (VI) (protection of computers), 2156 (national defense material, premises, or utilities), 2281a (violence against

maritime fixed platforms), 2332g (missile systems designed to destroy aircraft), 2332h (radiological dispersal devices),

2332i (acts of nuclear terrorism), 2339C (financing of terrorism), 2339D (military-type training from a foreign terrorist

organization) of this title; (ii) section 92 (prohibitions governing atomic weapons) of the Atomic Energy Act of 1954

(42 U.S.C. § 2122); (iii) the second sentence of section 46504 (assault on a flight crew with a dangerous weapon),

section 46505(b)(3) or (c) (explosive or incendiary devices, or endangerment of human life by means of weapons, on

aircraft), section 46506 if homicide or attempted homicide is involved (application of certain criminal laws to acts on

aircraft) of title 49; or (iv) section 1010A of the Controlled Substances Import and Export Act (narco-terrorism).

41 The terrorist sentencing enhancement, however, only applies for support provided in relation to a predicate offense

calculated to serve terrorist purposes. U.S. SENT. GUIDELINES MANUAL § 3A1.4 cmt. app. n.1 (U.S. SENT’G COMM’N

2021); 18 U.S.C. § 2332b(g)(5)(A).

42 United States v. Hassoun, 476 F.3d 1181, 1188 (11th Cir. 2007) (“[T]he Government need not prove all the elements

of §956 [conspiracy to commit certain violent crimes overseas], the object offense, in order to satisfy the elements of

the substantive § 2339A charge. By its elements, § 2339A criminalizes material support given ‘in preparation for’ the

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

also reaches support for concealment of an escape from a predicate offense, a violation of the

section may occur even after commission of the predicate offense.

Several of the predicate offense statutes cover, or consist solely of, conspiracy to violate their

proscription., For example, 18 U.S.C. § 956 prohibits conspiracy to commit certain violent crimes

overseas. Although the law ordinarily does not permit prosecution of a conspiracy to conspire, the

“[c]ourts have recognized that one conspiracy can serve as the predicate for another conspiracy

when the ‘[overarching] conspiracy and the predicate conspiracy are distinct offenses with

entirely different objectives.’”43

Attempt, Conspiracy, Aiding and Abetting

Section 2339A outlaws attempts as well as conspiracies to violate its proscriptions.44 In general,

attempt is the unfulfilled commission of an underlying offense. If the attempt succeeds, the

offender cannot be prosecuted or punished for both the completed offense and the attempt to

commit it.45 “Attempt” has two elements: (1) an intent to commit the underlying offense;46 and

(2) some substantial step towards its completion.47 Mere preparation is not enough.48 “To

constitute a substantial step, a defendant’s actions must cross the line between preparation and

attempt by unequivocally demonstrating that the crime will take place unless interrupted by

independent circumstances.”49 It is no defense that, unbeknownst to the defendant, commission of

the underlying offense was impossible, as for example because he was dealing with government

undercover agents rather than agents of a foreign terrorist organization.50 An attempt to provide

material support in violation of Section 2339A and providing that assistance are punished the

same: imprisonment for not more than 15 years (for any term of years or life, if death results from

the commission of the offense), a fine of not more than $250,000 (not more than $500,000 for an

organization) (or not more than twice the amount of gain or loss associated with the offense), or

both imprisonment and a fine.51

Conviction for conspiracy to violate § 2339A requires the government to “prove (1) that [the

defendant] entered into a conspiracy; (2) that the objective thereof was to provide support or

object offense – clearly, the object offense need not even have been completed yet, let alone proven as an element of

the material support offense. To meet its burden under § 2339A, the Government must at least prove that the

defendants provided material support or resources knowing that they be used in preparation for the § 956 conspiracy.”).

43 United States v. Khan, 461 F.3d 477, 493 (4th Cir. 2006) (alteration in original) (quoting United States v. Pugitore,

910 F.2d 1084, 1135 (3d Cir. 1990).

44 18 U.S.C. § 2339A(a).

45 United States v. Rivera-Relle, 333 F.3d 914, 921 n.11 (9th Cir. 2003).

46 United States v. Farhane, 634 F.3d 127, 145–46 (2d Cir. 2011); United States v. Hossain, 579 F. Supp. 3d 477, 480

(S.D.N.Y. 2022).

47 Braxton v. United States, 500 U.S. 344, 349 (1991); United States v. Mehanna, 735 F.3d 32, 53 (1st Cir. 2013);

Hossain, 579 F. Supp. 3d at 480.

48 United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir.

2009); Hossain, 579 F. Supp. 3d at 480.

49 United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009) (quoting United States v. Goetzke, 494 F.3d 1231,

1237 (9th Cir. 2007)); United States v. Morris, 549 F.3d 548, 550 (7th Cir. 2008); see also Hossain, 579 F. Supp. 3d at

481 (“a substantial step towards the provision of material support need not be planned to culminate in actual terrorist

harm, but only in support – even benign support – for an organization committed to such harm.”) (quoting United

States v. Farhane, 634 F.3d 127, 148 (2d Cir. 2011)).

50 Mehanna, 735 F.3d at 53; see also United States v. Rehak, 589 F.3d 965, 970–71 (8th Cir. 2009); United States v.

Coté, 504 F.3d 682, 687–88 (7th Cir. 2007); cf. United States v. Lakhani, 480 F.3d 171, 174–77 (3d Cir. 2007).

51 18 U.S.C. §§ 2339A(a), 3571.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

resources; and (3) that he then knew and intended that such support or resources would be used in

preparation for, or in carrying of [a predicate offense].”52 No First Amendment violation occurs

when the government introduces at trial evidence of the defendant’s conspiratorial statements.

“Forming an agreement to engage in criminal activities – in contrast with simply talking about

religious or political beliefs – is not [First Amendment] protected speech.”53

In general, the offense of conspiracy to provide material support is complete upon assent; the

support need only be planned, not delivered.54 Moreover, each of the conspirators is liable not

only for the conspiracy, but for any other foreseeable offense committed by any of the

conspirators in furtherance of the overall scheme.55 Like attempt, conspiracy to provide material

support carries the same penalties as the completed substantive offense: imprisonment for not

more than 15 years (for any term of years or life, if death results from the commission of the

offense), or a fine of not more than $250,000 (not more than $500,000 for an organization)(or not

more than twice the amount of gain or loss associated with the offense), or both imprisonment

and a fine.56 Unlike attempt, conspirators may be punished for both conspiracy and for providing

material support should their scheme succeed.57

Under 18 U.S.C. § 2, anyone who counsels, procures, aids, or abets a violation of Section 2339A

or any other federal crime is punishable as though he had committed the offense himself. “In

order to aid and abet another to commit a crime it is necessary that a defendant in some sort

associate himself with the venture, that he participate in it as in something that he wishes to bring

about, [and] that he seek by his action to make it succeed.”58 “Typically, the same evidence will

support both a conspiracy and an aiding and abetting conviction.”59 Unlike conspiracy, however,

liability under Section 2 only attaches if someone else commits the substantive offense.60

52 United States v. Hassan, 742 F.3d 104, 140 (4th Cir. 2014); United States v. Stewart, 590 F.3d 93, 114–16 (2d Cir.

2010); Chapman v. United States, 326 F. Supp. 3d 228, 242 (E.D. Va. 2018); see generally JOSEPH F. MCSORLEY, A

PORTABLE GUIDE TO FEDERAL CONSPIRACY LAW (1996); CRS Report R41223, Federal Conspiracy Law: A Brief

Overview, by Charles Doyle.

53 Hassan, 742 F.3d at 127 (quoting United States v. Amawi, 695 F.3d 457, 482 (6th Cir. 2012)).

54 Rehak, 589 F.3d at 971; United States v. Schaffer, 586 F.3d 414, 422 (6th Cir. 2009); United States v. Moalin, 973

F.3d 977, 1006–07 (9th Cir. 2020) (“None of the three conspiracy counts [under §§ 2339A and 2339B] required the

prosecution to prove that Doreh committed an overt act in furtherance of the conspiracy.”).

55 Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States v. Merlino, 592 F.3d 22, 29 (1st Cir. 2010);

United States v. Wardell, 591 F.3d 1279, 1291 (10th Cir. 2009); United States v. Khatallah, 41 F.4th 608, 625–26 (D.C.

Cir. 2022).

56 18 U.S.C. §§ 2339A(a), 3571.

57 Iannelli v. United States, 420 U.S. 770, 777–78 (1975); United States v. Chandia, 514 F.3d 365, 372 (4th Cir. 2008)

(“We also disagree with Chandia’s argument that Congress did not intend to authorize multiple punishments for a

conspiracy and a substantive violation under § 2339B. Chandia’s argument is based on the language of the statute,

which prohibits the conspiracy and the actual provision of material support in the same section. See 18 U.S.C. §

2339B(a)(1). (‘Whoever knowingly provides material support . . . or attempts or conspires to do so . . .’). But, as the

Supreme Court has held, the ‘settled principle’ that ‘the commission of the substantive offense and a conspiracy to

commit it are separate and distinct offenses’ does not give way simply because the statute describing the substantive

offense also specifically prohibits conspiracies.” (alterations in original) (quoting Callanan v. United States, 364 U.S.

587, 593 (1961)).

58 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); see also Rosemond v. United States, 572 U.S. 65, 17

(2014) (“As at common law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an

affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission”); United

States v. Little, 829 F.3d 1177, 1184 (10th Cir. 2016).

59 United States v. Vasquez, 677 F.3d 685, 695 (5th Cir. 2012); see also United States v. Boria, 592 F.3d 476, 481 n.8

(3d Cir. 2010).

60 United States v. Cruickshank, 837 F.3d 1182, 1189 (11th Cir. 2016); United States v. Lange, 834 F.3d 58, 69 (2d Cir.

2016); United States v. Gaw, 817 F.3d 1, 7 (1st Cir. 2016).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Consequences of Charge or Conviction

Section 2339A convictions carry a sentence of imprisonment for not more than 15 years (for any

period of years or for life if death results from commission of the offense) or a fine of not more

than $250,000 (not more than $500,000 for an organizational defendant), or both imprisonment or

a fine.61 The Sentencing Guidelines influence the sentence imposed below the statutory

maximum.62 Sentencing courts must begin the process by determining the sentence range

recommended by the Guidelines.63 Either the defendant or the government or both, may seek

appellate court review of the sentence imposed to ensure that it is procedurally and substantively

reasonable.64 A sentence is procedurally unreasonable, among other things, if it results from a

Guideline miscalculation.65 A sentence is substantively unreasonable, if it is unduly lenient or

severe based on the nature and severity of the offense and the defendant’s circumstances.66

The Sentencing Guidelines treat § 2339A convictions as if they were convictions for aiding and

abetting or for being an accessory after the fact and set the Guideline range using that of the

predicate offense.67 The Guidelines feature a terrorism adjustment which can raise the Guideline

sentencing level, for an offense that “involved or was intended to promote a federal crime of

terrorism.”68 A federal crime of terrorism is one “calculated to influence or affect the conduct of

[a] government by intimidation or coercion, or to retaliate against government conduct.” The

standard “does not focus on the defendant but on his ‘offense,’ asking whether it was calculated,

i.e., planned – for whatever reason or motive – to achieve the stated object.”69 The sentencing

court is free, but not obligated, to depart from the enhancement.70

Federal Crime of Terrorism

Section 2339A is among those statutes whose proscription is listed in the statute defining federal

crimes of terrorism.71 Classification as a federal crime of terrorism has several other

consequences. Property derived from or used in the commission of such an offense is subject to

61 18 U.S.C. §§ 2339A(a), 3571.

62 See generally CRS Report R41696, How the Federal Sentencing Guidelines Work: An Overview, by Charles Doyle.

63 Gall v. United States, 552 U.S. 38, 49 (2007); United States v. Stewart, 590 F.3d 93, 134 (2d Cir. 2009).

64 18 U.S.C. § 3742.

65 Gall, 552 U.S. at 51; United States v. Hammadi, 737 F.3d 1043, 1047 (6th Cir. 2013).

66 Gall, 552 U.S. at 51; see also Hammadi, 737 F.3d at 1047; United States v. Mohamed, 757 F.3d 757, 761 (8th Cir.

2014) (“[W]here a district court has sentenced a defendant below the advisory guidelines range, it is nearly

inconceivable that the court abused its discretion” and imposed a substantively unreasonable sentence) (alteration in

original) (quoting United States v. Worthey, 716 F.3d 1107, 1116 (8th Cir. 2013)).

67 U.S. SENT’G GUIDELINES MANUAL §§ 2X2.1, 2X3.1 (U.S. SENT’G COMM’N 2021).

68 Id. § 3A1.4 (“(a) If the offense is a felony that involved, or was intended to promote a federal crime of terrorism,

increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. (b) In each such case,

the defendant’s criminal history category . . . shall be Category VI”). The recommended sentencing range for level 32,

category VI is from 210 to 262 months imprisonment. The maximum sentence for a violation of § 2339A is 15 years.

18 U.S.C. § 2339A(a). Therefore, the maximum sentence is imprisonment for 180 months, unless the defendant is

convicted of additional offenses. See, e.g., United States v. Hassan, 742 F.3d 104, 147 (4th Cir. 2014) (“The court

calculated Sherifi’s advisory Guidelines ranges as follows: 180 months (the statutory maximum) on Count One [(18

U.S.C. § 2339A)]; life in prison on Count Two [18 U.S.C. § 956] and life in prison on Count Eleven [18 U.S.C.

§ 1117]. Rather than a life sentence, the court imposed an aggregate sentence of 540 months.”).

69 Mohamed, 757 F.3d at 760 (quoting United States v. Awan, 607 F.3d 306, 317 (2d Cir. 2010)).

70 United States v. Kabir, 51 F.4th 820, 828–29 (9th Cir. 2022) (citing, inter alia, Kimbrough v. United States, 552 U.S.

85, 91 (2007)).

71 18 U.S.C. § 2332b(g)(5)(B).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

confiscation.72 Federal crimes of terrorism are by definition predicate offenses under federal

money laundering and RICO prosecutions.73 Section 2339A prosecutions are subject to an eightyear statute of limitations, rather than the general five-year period.74 An accused charged with a

violation of a federal crime of terrorism faces an enhanced prospect of pre-trial detention.75 A

defendant convicted for violating a federal crime of terrorism may be subject to a life-time term

of supervised release, rather than the general five-year maximum term.76

Extraterritorial Jurisdiction

Unlike § 2339B, § 2339A has neither a general nor a descriptive statement of extraterritorial

jurisdiction. Historically, a court would find a statute’s provisions applicable overseas under any

of several circumstances. First, courts have found extraterritorial jurisdiction applied to overseas

accomplices to crimes with extraterritorial application.77 Second, courts have found statutes

applied abroad when confining application to purely domestic violations would likely frustrate

congressional intent and the purpose for the statute’s enactment.78 Third, overseas violations of

this provision would be prosecutable under circumstances evidencing one or more of the

principles that justify the exercise of federal jurisdiction under international law, for example, the

offense has an impact in the United States (territorial principle); the offender is a U.S. national

(nationality principle); the victim is a U.S. national (passive personality principle); the offense

72 18 U.S.C. § 981(a)(1)(G).

73 18 U.S.C. §§ 1956(c)(7)(D), 1961(1)(G). Among other things, the federal racketeering statute prohibits conducting,

through the patterned commission of more than one predicate offense, the affairs of an enterprise whose activities affect

interstate or foreign commerce, 18 U.S.C. §§ 1962, 1961. Among other things, the principal federal money laundering

statute prohibits engaging in a financial transaction involving the proceeds of a predicate offense when the transaction

is designed to launder the proceeds or to use them to promote further predicate offenses, 18 U.S.C. §§ 1956(a)(1),

(c)(7).

74 18 U.S.C. §§ 3286(a), 3282. Prosecution of a federal crime of terrorism may be brought at any time if the offense

involves the risk of serious bodily injury, 18 U.S.C. § 3286(b).

75 18 U.S.C. § 3142(f)((1)(A), (g)(1); United States v. Hir, 517 F.3d 1081, 1086 (9th Cir. 2008) (“Where, as here, there

is probable cause to believe that the defendant has committed an offense identified as a ‘federal crime of terrorism

under 18 U.S.C. § 2332b(g)(5)(B) for which a maximum term of imprisonment of ten years or more is prescribed, there

is a rebuttable presumption that ‘no condition or combination of conditions will reasonably assure the appearance of the

person as required and the safety of the community.’ 18 U.S.C. § 3142(e). Although the presumption shifts a burden of

production to the defendant, the burden of persuasion remains with the government.’”); see also United States v.

Mehanna, 669 F. Supp. 2d 160, 164–65 (D. Mass. 2009).

76 18 U.S.C. § 3583(j), (b).

77 United States v. Felix-Gutierrez, 940 F.2d 1200, 1205 (9th Cir. 1991) (“We conclude that the crime of ‘accessory

after the fact’ gives rise to extraterritorial jurisdiction to the same extent as the underlying offense. That is, if the

underlying substantive statute applies extraterritorially, the statute making it unlawful to assist another in avoiding

apprehension, trial or punishment also applies extraterritorially when invoked in connection with an extraterritorial

violation of the underlying statute. . . . We have inferred extraterritorial application of conspiracy statutes on the basis

of a finding that the underlying substantive statutes reach extraterritorial offenses. We see no reason why a different

rule should apply in accessory after the fact cases” (citations omitted)); see also United States v. Abu Khatallah, 151 F.

Supp. 3d 116, 138 (D.D.C. 2015).

78 United States v. Bowman, 260 U.S. 94, 98 (1922) (Some offenses “are such that to limit their locus to the strictly

territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large

immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases,

Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas

and foreign countries, but allows it to be inferred from the nature of the offense”); see also United States v. Al Kassar,

660 F.3d 108, 118 (2d Cir. 2011); United States v. Georgescu, 148 F. Supp. 3d 319, 323–24 (S.D.N.Y. 2015).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

affects U.S. nationwide interests (protective principle); or the offense is universally condemned

(universal principle).79

Today, Section 2339A’s application abroad still extends as far as the extraterritorial application of

its predicate offenses.80 Otherwise, as the Supreme Court declared in RJR Nabisco, Inc. v.

European Community: “Absent clearly expressed congressional intent to the contrary, federal

laws will be construed to have only domestic application.”81 The Court explained that, “[t]he

question is not whether we think ‘Congress would have wanted’ a statute to apply to foreign

conduct ‘if it had thought of the situation before the court,’ but whether Congress has affirmative

and unmistakably instructed that the statute will do so. ‘When a statute gives no clear indication

of an extraterritorial application, it has none.’”82

Venue

Section 2339A asserts that venue is proper in “any Federal judicial district in which the

underlying offense was committed, or in any other Federal judicial district as provided by law.”83

Moreover as a general rule, the law provides that conspiracy to commit an offense may be tried

wherever an act in furtherance of the conspiracy occurs.84 Crimes committed abroad may be tried

where the accused is first brought into the United States.85 Venue is also proper where the accused

aided and abetted the commission of a completed offense.86 Section 2339A’s reach, when based

solely on the location of the completed predicate offense, may be limited by Supreme Court

decisions suggesting that venue over offenses committed within the United States is only proper

in those districts in which a conduct element of the offense occurs.87

79 United States v. Clark, 435 F.3d 1100, 1106 (9th Cir. 2006); United States v. Yousef, 327 F.3d 56, 90-91 (2d Cir.

2003); United States v. MacAllister, 160 F.3d 1304, 1308 (11th Cir. 1998); United States v. Al-Imam, 373 F. Supp. 3d

247, 266 (D.D.C. 2019) (“Al-Imam and the Government agree that § 2339A . . . applies extraterritorially to the extent

that an associated substantive offense does.”).

80 RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 338 (2016) (“We find that the presumption against extraterritoriality

has been rebutted – but only with respect to certain applications of the statute. The most obvious textual clue is that

RICO defines racketeering activity to include a number of predicates that plainly apply to at least some foreign

conduct.”).

81 Id. at 335.

82 Id. (quoting Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247 (2010)).

83 18 U.S.C. § 2339A(a).

84 Whitfield v. United States, 543 U.S. 209, 218 (2005); United States v. Matthews, 31 F.4th 436, 455 (6th Cir. 2022);

United States v. Heatherly, 985 F.3d 254, 263 (3d Cir. 2021); United States v. Lee, 966 F.3d 310, 319 (5th Cir. 2020);

United States v. Sitzmann, 893 F.3d 811, 826 (D.C. Cir. 2018). See generally CRS Report RL33223, Venue: A Legal

Analysis of Where a Federal Crime May Be Tried, by Charles Doyle.

85 18 U.S.C. § 3238 (“The trial of all offenses begun or committed upon the high seas, or elsewhere out of the

jurisdiction of any particular State or district, shall be in the district in which the offender, or any one of two or more

joint offenders, is arrested or is first brought; but if such offender or offenders are not so arrested or brought into any

district, an indictment or information may be filed in the district of the last known residence of the offender or of any

one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the

District of Columbia.”).

86 United States v. Khalupsky, 5 F.4th 279, 291 (2d Cir. 2021); United States v. Thomas, 690 F.3d 358, 370 (5th Cir.

2012); cf. United States v. Cabrales, 524 U.S. 1, 7 (1998) (holding that money laundering in Florida of the proceeds

generated by a Missouri drug trafficking enterprise could not be tried in Missouri, but suggesting that venue might have

been proper had the laundering be charged as aiding and abetting the Missouri trafficking: “Nor do they charge her as

an aider or abettor in the Missouri drug trafficking”).

87 United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999); Cabrales, 524 U.S. at 6–7.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Defenses

Defendants have occasionally attempted to claim combat immunity as a defense, but no

court has yet accepted the defense under § 2339A.88

Civil Actions

Section 2339A, like § 2339B, creates no private cause of action. Still, 18 U.S.C. § 2333

authorizes such suits for those injured in their person, property, or business “by reason of” an act

of international terrorism.89 Section 2331(1) defines the term “international terrorism” under the

chapter in which §§ 2333, 2339A, and 2339B are found.90 The term features three elements: a

dangerous crime,91 a terrorist motive,92 and an international component.93 The courts have

concluded that the violations of § 2339A or § 2339B may satisfy the first of these elements.94

88 E.g., United States v. Hamidullin, 888 F.3d 62, 71 (4th Cir. 2018) (a Taliban-affiliated former Russian Army officer

fighting in Afghanistan was not entitled to immunity because the conflict at the time was not an international conflict

for purposes of the Geneva Convention); United States v. Harcevic, 999 F.3d 1172, 1176 (8th Cir. 2021) (participants

in the Syrian Civil War are not entitled to immunity because the conflict is not international conflict); United States v.

Hodzic, 355 F. Supp. 3d 825, 827–28 (E.D. Mo. 2019) (same).

89 18 U.S.C. § 2333(a) (“Any national of the United States injured in his or her person, property, or business by reason

of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district

court of the United States and shall recover threefold the damages he or she sustains and the cost of the suit, including

attorney’s fees.”).

(“As used in this chapter- (1) the term "international terrorism" means activities that(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or

of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any

State; (B) appear to be intended- (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a

government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction,

assassination, or kidnapping; and (C) occur primarily outside the territorial jurisdiction of the United States, or

transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended

to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum.”).

91 Id. § 2331(1)(A) (“the term ‘international terrorism’ means activities that – (A) involve violent acts or acts dangerous

to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal

violation if committed within the jurisdiction of the United States or of any State. . . .”).

92 Id. § 2331(1)(B) (“the term ‘international terrorism’ means activities that – . . . (B) appear to be intended – (i) to

intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping . . . .”).

93 Id. § 2331(1)(C) (“the term ‘international terrorism’ means activities that – . . . (C) occur primarily outside the

territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are

accomplished, the persons they appear intended to intimidate to coerce, or the locale in which their perpetrators operate

or seek asylum.”).

94 Weiss v. Nat’l Westminster Bank, PLC, 993 F.3d 144, 156 (2d Cir. 2021) (“‘conduct that violates a material support

statute can also satisfy the § 2331(1) definition requirements of international terrorism in some circumstances.’”)

(emphasis of the court) (quoting Linde v. Arab Bank, PLC, 882 F.3d 314, 326 (2d Cir. 2018); Crosby v. Twitter, Inc.,

921 F.3d 617, 622 (6th Cir. 2019) (“Under 18 U.S.C. § 2339B(a)(1), it is a crime to provide material support to a

foreign terrorist organization. And if that material support also qualifies as an act of ‘international terrorism’ under 18

U.S.C. § 2331(1), a plaintiff can recover for injuries that occurred ‘by reason of’ the defendant’s conduct. 18 U.S.C.

§ 2333(a).”); Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1015 (7th Cir. 2002) (“If the plaintiffs could show that

[defendants] violated either section 2339A or section 2339B, that conduct would certainly be sufficient to meet the

definition of ‘international terrorism’ under sections 2333 and 2331. . . Congress has made clear, though, through the

criminal liability imposed in sections 2339A and 2339B, that even small donations made knowingly and intentionally

in support of terrorism may meet the standard for civil liability in section 2333.”).

90 18 U.S.C. § 2331(1)

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

They do so by construing violations of § 2339A or § 2339B as acts of “international terrorism” as

defined in 18 U.S.C. § 2331(1).95

In 2016, Congress expanded the reach of § 2333 in the Justice Against Sponsors of Terrorism Act

(JASTA) to include liability for aiding and abetting an act of terrorism.96 The expansion

contemplated liability that satisfied Halberstam’s three elements: “(1) the party whom the

defendant aids must perform a wrongful act that causes an injury; (2) the defendant must be

generally aware of his role as part of an overall illegal or tortious activity at the time that he

provides the assistance; and (3) the defendant must knowingly and substantially assist the

principal violation.”97

In Twitter, Inc. v. Taamneh,98 the Supreme Court rejected claims that three social media

companies, Facebook, Twitter, and Google (YouTube), whose platforms terrorists had used to

recruit and raise funds, were liable for aiding and abetting a terrorist attack on an Istanbul

nightclub that killed 39 and injured another 69. The Court explained that for purposes of § 2333

aiding and abetting liability is confined to “a conscious, voluntary, and culpable participation in”

in someone else’s wrongdoing.”99

95 Boim v. Holy Land Found., 549 F.3d 685, 690 (7th Cir. 2008) (en banc) (“The first panel opinion discussed

approvingly an alternative and more promising ground for bringing donors to terrorist organizations within the grasp of

section 2333. The ground involves a chain of explicit statutory incorporations by reference. The first link in the chain is

the statutory definition of ‘international terrorism’ as ‘activities that . . . involve violent acts or acts dangerous to human

life that are a violation of the criminal laws of the United States,’ that ‘appear to be intended . . . to intimidate or coerce

a civilian population’ or ‘affect the conduct of a government by . . . assassination,’ and that ‘transcend national

boundaries in terms of the means by which they are accomplished’ or ‘the persons they appear intended to intimidate or

coerce.’ Section 2331(1) . . . includes not only violent acts but also ‘acts dangerous to human life that are a violation of

the criminal laws of the United States.’ Giving money to Hamas, like giving a loaded gun to a child (which also is not a

violent act), is an ‘act dangerous to human life.’ And it violates . . . 18 U.S.C. § 2339A(a), which provides that

‘whoever provides material support or resources . . . , knowing or intending that they are to be used in preparation for,

or in carrying out, a violation of [e.g.,] [18 U.S.C. § 2332],’ shall be guilty of a federal crime. So we go to 18 U.S.C.

§ 2332 and discover that it criminalizes the killing [of] . . . any American citizen outside the United States. By this

chain of incorporations by reference (section 2333(a) to section 2331(1) to section 2339A to section 2332), we see that

a donation to a terrorist group that targets Americans outside the United States may violate section 2333.” (alterations

4, 5, 7, 8, 9 in original)); Goldberg v. UNS AG, 690 F. Supp. 2d 92, 113 (E.D.N.Y. 2010) (“[S]ections 2339A and

2339B make clear Congress’ intent that the intentional (or reckless) provision of material support to a terrorist

organization fulfills each prong of section 2331(1)’s definition of ‘international terrorism,’ and therefore suffice to

establish liability under section 2333(a).”).

96 18 U.S.C. § 2333(d)(2) (“Liability.-In an action under subsection (a) for an injury arising from an act of international

terrorism committed, planned, or authorized by an organization that had been designated as a foreign terrorist

organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189), as of the date on which such

act of international terrorism was committed, planned, or authorized, liability may be asserted as to any person who

aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such

an act of international terrorism.”).

97 Siegel v. HSBC N. Am. Holdings, Inc., 933 F.3d 217, 223 (2d Cir. 2019) (“JASTA further states that Halberstam v.

Welch, 705 F.2d 472 (D.C. Cir. 1983), provides ‘the proper legal framework’ for ‘[f]ederal civil aiding and abetting and

conspiracy liability.’” (alteration in original) (quoting JASTA, § 2(a)(5), 130 STAT. 852)); Atchley v. AstraZeneca UK

Ltd., 22 F.4th 204, 216 (D.C. Cir. 2022) (“Plaintiffs thus need to plead three statutory elements: (1) an injury arising

from an act of international terrorism; (2) that the act was committed, planned, or authorized by a designated Foreign

Terrorist Organization; and (3) that defendants aided or abetted an act of international terrorism by knowingly

providing substantial assistance. As discussed below, Halberstam, in turn, spells out three elements that establish the

referenced aiding or abetting – wrongful acts, general awareness, and substantial assistance – and further guides our

consideration by reference to six ‘substantial assistance factors [i.e., nature of the act assisted, amount of assistance,

present at the time, relation to the tortious actor, defendant’s state of mind, and duration of the assistance].’” (citing

Halberstam v. Welch, 705 F.2d 472, 487–88 (D.C. Cir. 1983)).

98 143 S. Ct. 1206 (2023)

99 Id. at 1223.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Like § 2333, the Sherman Act, the Clayton Act and RICO each afford relief from injuries incurred

“by reason of” a violation of their provisions.100 Moreover, “the Supreme Court has repeatedly

and explicitly held that when Congress uses the phrase ‘by reason of’ in a statute, it intends to

require a showing of proximate cause.”101 The precise definition of the term has proven elusive.102

The term can have a pragmatic quality, for “[a]t bottom, [it] reflects ‘ideas of what justice

demands, or of what is administratively possible and convenient.’”103

In the context of § 2333, some courts have held that proximate cause exists where (1) “the

defendants’ acts were a substantial factor in the sequence of events that led to the plaintiffs’

injuries;” and (2) “those injuries were ‘reasonably foreseeable or anticipated as a natural

consequences of’ defendants’ conduct.”104

An injury has been incurred “by reason of” an act of international terrorism when an act of

international terrorism was the proximate cause of the injury.105 “That said, we know that simply

stating that [§ 2333] requires proof of ‘probable cause’ does not help much.”106 “[F]oreseeability,

directness, and the substantiality of the defendant’s conduct – are relevant to the inquiry . . . we

use ‘proximate cause’ to label generically the judicial tools used ‘to perform an inquiry that

ultimately reflects ideas of what justice demands, and of what is administratively possible and

convenient.’”107

100 Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th Cir. 2018). RICO refers to the Racketeer Influenced and Corrupt

Organization provisions of 18 U.S.C. §§1961–1968.

101 Kemper v. Deutsche Bank AG, 911 F.3d 383, 391 (7th Cir. 2018) (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S.

258, 267–68 (1992); Associated Gen Contractors of Cal., Inc., v. Cal. State Council of Carpenters, 459 U.S. 519, 532–

35 (1983); Hemi Grp., LLC v. City of New York, 559 U.S. 1, 9 (2010)).

102 Kemper, 911 F.3d at 392 (“A firm definition of the term ‘proximate cause’ has escaped judges, lawyers, and legal

scholars for centuries. . . . The term has so bedeviled the authors of the Restatement of Torts that they omitted it

entirely from the First and Second Restatements and expressed a wish for its extermination in the Third.”).

103 Holmes, 503 U.S. at 268 (quoting W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 41, p.

264 (5th ed. 1984)).

104 Crosby v. Twitter, Inc., 921 F.3d 617, 624 (6th Cir. 2019) (citing cases from the D.C. and Second Circuits.).

105 Id. at 623 (“We know that proximate cause is required under [§ 2333] by looking at the language of the statute,

which limits recovery to injuries sustained ‘by reason of an act international terrorism.’ ‘[T]he Supreme Court has

repeatedly and explicitly held that when Congress uses the phrase “by reason of” in a statute, it intends to require a

showing of proximate cause’” (citing Holmes v, Sec. Inv. Prot. Corp., 503 U.S. 258, 267–68 (1992); Associated Gen.

Contractors of Cal. v. Cal. State Council of Carpenters, Inc., 459 U.S. 519, 532–35 (1983); and Hemi Group, LLC v.

City of New York, 559 U.S. 1 (2010)). And the Second, Ninth, and D.C. Circuits have all reached the same conclusion:

proximate cause is required under [§ 2333]’ (citing, Owens v. BNP Paribas, S.A., 897 F.3d 266, 273 (D.C. Cir. 2018);

Fields v. Twitter, Inc., 881 F.3d 739, 744–45 (9th Cir. 2018); Rothstein v. UBS AG, 708 F.3d 82, 95–96 (2d Cir.

2013)013).”).

106 Id. (quoting Kemper, 911 F.3d at 392.

107 Kemper, 911 F.3d at 392 (quoting Holmes, 503 U.S. at 268)); see also Owens, 897 F.3d at 273 (“Plaintiffs must

therefore plausibly allege (1) that BNPP’s acts were ‘a substantial factor’ in the sequence of events that led to their

injuries and (2) that those injuries must have been reasonably foreseeable or anticipated as a natural consequence of

BNPP’s conduct.”).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Litigation under § 2333 is governed by several other statutory provisions that are beyond the

scope of this report.108 The results show, however, that claimants have had trouble recovering on

their claims.109

Support of Designated Terrorist Organizations

(18 U.S.C. § 2339B)

Section 2339A condemns providing material support for crimes that may be committed in a

terrorism context. Section 2339B condemns providing material support to foreign terrorist

organizations that engage in such offenses.110 In its present form, § 2339B provides for criminal

liability against:

(1) whoever

(2) knowingly

(3)(a) attempts to provide,

(b) conspires to provide, or

(4) material support or resources

(5) to a foreign terrorist organization

(6) knowing that the organization

(a) has been designated a foreign terrorist organization, or

108 E.g., 18 U.S.C. §§ 2334 (relating to jurisdiction and venue), 2335 (relating to statute of limitations), 2336 (relating

to other limitations), 2337 (relating to suits against government officials), 2338 (relating to exclusive federal

jurisdiction). See CRS Report R46274, The Palestinians and Amendments to the Anti-Terrorism Act: U.S. Aid and

Personal Jurisdiction, by Jim Zanotti & Jennifer K. Elsea.

109 E.g., Seigel v. HSBC N. Am. Holdings, 933 F.3d 217, 219 (2d Cir. 2019) (“[B]ecause the plaintiffs did not

adequately allege . . . that the defendants [(financial institutions that provided banking services to a Saudi bank that in

turn provided services to the terrorist organization)] knowingly played a role in the November 9 [terrorist] attacks or

provided substantial assistance to the terrorist organization that perpetrated it, they failed to a plausible claim for relief

under JASTA.”); Crosby, 921 F.3d at 619 (“[Victims’] Plaintiffs’ complaint includes no allegations that Twitter,

Facebook, or Google (who allegedly hosted terrorist propaganda that ‘virtual recruit[ed] Americans to commit terrorist

attacks’) had any direct connection to Mateen or his heinous act.”); Kemper, 911 F.3d at 386 (“[D]espite Congress’s

effort to make state sponsors of terrorism accountable in U.S. courts, see 28 U.S.C. § 1605A, any resulting judgment

may be uncollectible. Rhonda Kemper attempted to get around these formidable obstacles by alleging that the bomb

that killed her son was a signature Iranian weapon that traveled from the Iranian Revolutionary Guard Corps (‘the

Guard’) to Hezbollah to Iraqi militias, who then placed it in the ground . . . where it killed Spc. Schaefer. Kemper

asserts that Deutsche Bank AG, a German entity with U.S. affiliates, is responsible for her son’s death under . . . 18

U.S.C. § 2333. She ties Deutsche to the fatal bomb through the Bank’s alleged membership in an Iranian conspiracy to

commit acts of terror. It joined that conspiracy, she contents, when it instituted procedures to evade U.S. sanctions and

facilitate Iranian banking transactions. The district court found that Kemper failed to plead facts that plausible indicated

that Deutsche Bank’s actions caused her son’s death . . . We affirm.” (citations omitted)).

110 Providing material support to foreign terrorist organizations is reminiscent of one of the elements of treason,

“adhering to [the] Enemies” of the United States. U.S. CONST. art. III, § 3, cl. 1 (“Treason against the United States,

shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No

Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on

Confession in open Court.”). Congress added an additional element to the treason statute, 18 U.S.C. § 2382. The

offense can only be committed by one “owing allegiance to the United States,” id., which puts an end to the argument

that § 2339A and § 2339B offenses must be tried as treason, United States v. Augustin, 661 F.3d 1105, 1117 (11th Cir.

2011) (citing in accord United States v. Rahman, 189 F.3d 88, 113 (2d Cir. 1999) and United States v. Rodriguez, 803

F.2d 318, 329 (7th Cir. 1986)) (“[W]e note that neither § 2339A nor § 2339B – the two statutes under which Augustine

was convicted – include allegiance to the United States as an element of the offense. Thus, we have no trouble

concluding that these offenses, as defined by Congress do not fall within the ambit of the Treason Clause”).

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

(b) engages, or has engaged, in “terrorism” or “terrorist activity.”111

Whoever

The law here for § 2339B is the same as for § 2339A. “Whoever” usually means any legal entity

or individual.112 The Dictionary Act declares that “In determining the meaning of any Act of

Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’ include

corporations, companies, associations, firms, partnerships, societies, and joint stock companies,

as well as individuals.”113 Courts have looked to the statute to construe federal criminal cases.114

Moreover, federal law now generally holds that corporations are criminally liable for crimes

committed by their officers, employees, or agents within the scope of their employment and for

the benefit of the corporation,115 although at common law corporations could not be thus held

criminally liable.116

Knowingly

Section 2339B has two knowledge elements.117 The government must prove that the defendant

knew that he was providing something to an entity (“whoever knowingly provides material

support or resources to a foreign terrorist organization”).118 It must also show that the defendant

knew that the entity was a designated terrorist organization or that the entity engaged in terrorism

or terrorist activity.119 The government does not have to demonstrate that the defendant “intended

to further a foreign terrorist organization’s illegal activities.”120

111 18 U.S.C. § 2339B(a)(1).

112 See generally CRS Report R43293, Corporate Criminal Liability: An Overview of Federal Law, by Charles Doyle.

113 1 U.S.C. § 1.

114 See, e.g., United States v. A & P Trucking Co., 358 U.S. 121, 123 (1958); United States v. Polizzi, 500 F.2d 856,

907 (9th Cir. 1974); United States v. George, 946 F.3d 643, 647 (4th Cir. 2020) (“Congress drafted the identity theft

statutes using the term ‘person’ which the Dictionary Act defines as . . . ”); United States v. Ruzicka, 331 F. Supp. 3d

888, 893 n.2 (D. Minn. 2018) (“While the CVRA [Crime Victims’ Rights Act] does not define ‘person,’ the Dictionary

Act defines ‘person’ to include both individuals and corporations.”).

115 United States v. Agosto-Vega, 617 F.3d 541, 552–53 (1st Cir. 2010); United States v. Singh, 518 F.3d 236, 249–50

(4th Cir. 2008).

116 I WILLIAM BLACKSTONE, COMMENTARIES 464 (1765) (“A corporation cannot commit treason, or felony, or other

crime, in its corporate capacity: though its members may, in their distinct individual capacities”) (transliteration

provided).

117 United States v. Al Kassar, 660 F.3d 108, 129 (2d Cir. 2011).

118 18 U.S.C. § 2339B(a)(1); Al Kassar, 660 F.3d at 129; United States v. Farah, 899 F.3d 608, 616 (8th Cir. 2018) (“A

defendant must generally know the facts that make his conduct illegal.”); United States v. Nagi, 254 F. Supp. 3d 548,

556 (W.D.N.Y. 2017) (“To obtain a conviction under § 2339B(a)(1), the Government must also prove that the person

‘ha[d] knowledge that the organization is a designated terrorist organization . . . , that the organization has engaged or

engages in terrorist activity . . . , or that the organization has engaged or engages in terrorism.’” (alterations in original)

(quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 35 (2010)).

119 United States v. Wright, 937 F.3d 8, 23 (1st Cir. 2019) (“[T]o prove a violation of [§ 2339B], the government must

establish that a defendant (1) knowingly provided or attempted or conspired to provide material support . . . (3) that the

defendant knew had been designated a foreign terrorist organization or had engaged in terrorism.” (first and second

alterations in original) (emphasis added) (quoting United States v. Dhirane, 896 F.3d 295, 303 (4th Cir. 2018)); Al

Kassar, 660 F.3d at 129; see also United States v. Omar, 786 F.3d 1104, 1112–13 (8th Cir. 2015); United States v.

Mehanna, 735 F.3d 32, 42 (1st Cir. 2013).

120 Holder v. Humanitarian Law Project, 561 U.S. 1, 16 (2010); Mehanna, 735 F.3d at 42; Al Kassar, 660 F.3d at 129.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Provides

Here too, the law is much the same as in § 2339A. When neither a statute’s text, its context, nor

its legislative history suggest otherwise, Congress is thought to have intended common words to

have their common meaning.121 The word “provide” ordinarily means “to supply something for

sustenance or support.”122 Section 2339B has no explicit definition of the word “provide.”

Nothing in the context shows Congress intended to attach any special meaning to the word. The

legislative history is equally barren.123 When the Supreme Court dissected § 2339B in

Humanitarian Law Project, it passed by the word without comment.124 At least two lower federal

courts construing the word “provide” in § 2339B’s companion, § 2339A, concluded that the word

should be given its ordinary dictionary meaning.125

Material Support

The precise scope of the term “material support or resources” under § 2339B proved controversial

at first. With the addition from § 2339B(h) covering “personnel,” the section uses the definition in

§ 2339A(b) and thus covers “any property, tangible or intangible, or service.”126 The material

support excludes medicine and religious materials, but includes

•

currency or monetary instruments or financial securities,

financial services,

lodging,

training (i.e., instruction or teaching designed to impart a specific skill, as

opposed to general knowledge),

expert advice or assistance (i.e., advice or assistance derived from scientific,

technical, or other specialized knowledge),

safe houses,

false documentation or identification,

communications equipment, facilities,

weapons,

121 Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2362 (2019) (“But FOIA nowhere defines the term

‘confidential.’ So, as usual, we ask what that term’s ‘ordinary, contemporary, common meaning’ was when Congress

enacted FOIA in 1966.” (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)); Wis. Cent. Ltd. v. United States, 138

S. Ct. 2067, 2072 (2018); Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014)) (“[U]nless otherwise defined, words

will be interpreted as taking their ordinary, contemporary, common meaning” (quoting Perrin, 444 U.S. at 42));

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a statute, we give the

term its ordinary meaning.”).

122 Provide, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 2002).

123 The House Judiciary Committee report’s summary of the provision which ultimately became § 2339B does use

provide’s ordinary synonym, “supply,” perhaps offering some minimal credibility to the contention that the word

“provide” has its ordinary meaning: H.R. REP. NO. 104-383 at 81 (“Allowing an individual to supply funds, goods, or

services to an organization . . . helps defray the cost to the terrorist organization . . . .” (emphasis added)).

124 The Court in Humanitarian Law Project does point to the dictionary for the meaning of other words in the section,

561 U.S. at 23–24 (“‘[S]ervice’ similarly refers to concerted activity, not independent advocacy. See Webster’s Third

New International Dictionary 2075 (1993) (defining ‘service’ . . . .)”).

125 United States v. Sattar, 314 F. Supp. 2d 279, 297 (S.D.N.Y. 2004); United States v. Abu-Jihaad, 600 F. Supp. 2d

362, 399–400 (D. Conn. 2009).

126 18 U.S.C. § 2339B(g)(4).

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•

lethal substances,

explosives,

personnel (one or more individuals who may be or include oneself), and

transportation.127

Section 2339B adopts § 2339A’s definition of “material support,” and its accompanying

definitions of “training” and “expert advice and assistance.”128 Section 2339B also supplies two

amplifications of the word “personnel.” One limits the word to those working under the direction

of a designated terrorist organization.129 The other provides limited immunity from prosecution

for those who provide support with the approval of the Secretary of State and the Attorney

General.130

Congress adjusted some of the definitions in the wake of First Amendment overbreadth and due

process vagueness challenges that the Supreme Court ultimately addressed in Holder v.

Humanitarian Law Project.131 The Humanitarian Law Project and other groups had argued that §

2339B’s prohibitions against providing “personnel” or “training” were unconstitutionally vague

and might extend to things like advocating the organizations’ interests before the U.N.

Commission on Human Rights; petitioning Members of Congress on their behalf, seeking the

release of political prisoners; or training the organizations’ members on the use of international

law to resolve political disputes peacefully.132 In Humanitarian Law Project, the Supreme Court

held that § 2339B, as applied, was not unconstitutionally vague; did not constitute an abridgement

of the First Amendment right to free speech; and did not impermissibly intrude on the right of

free association.133

Chief Justice Roberts, writing for the six-member majority, noted early on that the lower court

had interwoven First Amendment overbreadth into its due process vagueness analysis, and he

explained that in both respects it had “contravened the rule that ‘[a] plaintiff who engages in some

127 Id. § 2339A(b).

128 Id. § 2339B(g)(4).

129 Id. § 2339B(h) (“No person may be prosecuted under this section in connection with the term ‘personnel’ unless that

person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or

more individuals (who may be or include himself) to work under that terrorist organization’s direction or control or to

organize, manage, supervise, or otherwise direct the operation of that organization. Individuals who act entirely

independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be

working under the foreign terrorist organization’s direction and control”); United States v. Hendricks, 950 F.3d 348,

353 (6th Cir. 2020) (“[H]e contends only that the government failed to present evidence from which a jury could find

that he agreed or intended to [act] on behalf of ISIS. That argument, however, ignores evidence from which a jury

could reasonably infer that Hendricks (1) communicated with and took direction from ISIS members, (2) viewed

himself and his recruits as agents of ISIS, and (3) acted in a manner consistent with someone who was operating or

seeking to operate on behalf of ISIS.”).

130 18 U.S.C. § 2339B(i) (“No person may be prosecuted under this section in connection with the term ‘personnel’,

‘training’, or ‘expert advice or assistance’ if the provision of that material support or resources to a foreign terrorist

organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of

State may not approve the provision of any material support that may be used to carry out terrorist activity (as defined

in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act”).

131 561 U.S. 1 (2010).

132 Humanitarian Law Project v. Reno, 9 F. Supp. 2d 1176, 1203–04 (C.D. Cal. 1998).

133 Humanitarian Law Project 561 U.S. at 8. For a discussion of the case and others in an Internet context, see CRS

Report R45713, Terrorism, Extremism, and the Internet, by Victoria L. Killion.

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Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the

conduct of others.’”134

The Chief Justice pointed out that due process bars enforcing a vague criminal statute. A statute is

impermissibly vague when it “‘fails to provide a person of ordinary intelligence fair notice of

what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory

enforcement.’”135 When a statute clearly applies to the conduct at issue, it is to no avail that its

application may be unclear under other circumstances.136

Section 2339B is not unconstitutionally vague as applied to the type of support at issue –

coordinated advocacy on behalf of a terrorist organization and training the organization’s

members to use international law to resolve disputes and to petition the United Nations and other

similar entities for relief, Chief Justice Roberts observed.137 A reasonable person would realize

that this training constitutes providing “‘expert advice or assistance’ . . . derived from . . .

‘specialized knowledge,’” and that this advocacy, when coordinated or directed by a terrorist

organization, constitutes providing a service to such an organization.138

As for free speech, the Chief Justice concluded that Congress may outlaw material support to a

terrorist organization in the form of speech of the type at issue without offending the First

Amendment. The government has a compelling interest in the suppression of terrorism. Training

and coordinated support in the form of advocacy of a terrorist organization’s lawful activities

frees resources to service illicit activities; lends legitimacy to the organization; and may strain

diplomatic relations with the countries against whom the organization’s terrorist activities may be

directed.139 In this case, “[a] foreign terrorist organization introduced to the structures of the

international legal system might use the information to threaten, manipulate, and disrupt.”140 An

organization guide to and through the avenues to international relief might secure relief in the

form of fungible monetary aid.141

The Chief Justice disposed of the groups’ freedom of association argument with the notation that

the section outlaws conduct, not membership.142

Terrorist Organizations

Providing material support is only a crime under § 2339B if the known beneficiary is a foreign

terrorist organization. That is, the government must show either that (1) the defendant knows that

the organization has been designated a foreign terrorist organization or (2) the defendant knows

that the organization is or has engaged in “terrorism” or in “terrorist activities.”143

134 Humanitarian Law Project 561 U.S. at 20 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 495 (1982)).

135 Id. at 18 (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).

136 Id. at 18–19 (citing Hoffman Estates, 455 U.S. at 495).

137 Id. at 22.

138 Id.

139 Id. at 33–8.

140 Id. at 37.

141 Id.

142 Id. at 39.

143 18 U.S.C. § 2339B(a); United States v. Farah, 899 F.3d 608, 616 (8th Cir. 2018) (“A defendant must generally know

the facts that make his conduct illegal.”); United States v. Nagi, 254 F. Supp. 3d 548, 556 (W.D.N.Y. 2017) (“To obtain

a conviction under § 2339B(a)(1), the Government must also prove that the person had knowledge that the organization

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Designated Terrorist Organizations

The process under which the Secretary of State designates an entity a foreign terrorist

organization is authorized in section 219 of the Immigration and Nationality Act.144 Under the

procedure, the Secretary may designate an entity if he finds that it is (A) a foreign organization;

(B) that “engages in terrorist activity or terrorism, or retains the capacity and intent to engage in

terrorist activity or terrorism”; and (C) “the terrorist activity or terrorism” of the entity “threatens

the security of United States nationals or the national security of the United States.”145 An

organization may challenge its designation,146 and the Secretary may revoke the designation.147

The organization may appeal the Secretary’s decision to the United States Court of Appeals for

the District of Columbia.148

A defendant, charged with providing material support to an organization, however, may not

challenge the designation.149 The courts have consistently held that a defendant’s inability to

challenge the designation does not offend due process; nor does it constitute an unconstitutional

delegation of legislative authority.150

Organizations Engaged in Terrorism or Terrorist Activities

Organizations that the accused knew engaged in “terrorism” or “engaged in terrorist activities”

constitute a second class of banned beneficiaries. “Terrorism” under § 2339B is simply

“premeditated, politically motivated violence perpetrated against noncombatant targets by

subnational groups or clandestine agents.”151 The definition of an organization that “engages in

terrorist activities” is more multi-faceted as noted in the margin.152

is a designated terrorist organization . . . , that the organization has engaged or is engaged in terrorist activity . . . , or

that the organization has engaged or engages in terrorism.”).

144 8 U.S.C. § 1189.

145 8 U.S.C. § 1189(a)(1).

146 8 U.S.C. § 1189(a)(4)(B).

147 8 U.S.C. § 1189(a)(6).

148 8 U.S.C. § 1189(c).

149 8 U.S.C. § 1189(a)(8); United States v. Afshari, 426 F.3d 1150, 1155–59 (D.C. Cir. 2005); United States v.

Hammoud, 381 F.3d 316, 331 (4th Cir. 2004), vacated, 543 U.S. 1097 (2005), opinion reinstated in part, 405 F.3d

1034 (2005) (en banc).

150 Ali, 799 F.3d at 1119–20 (“Congress may delegate its legislative power if it ‘lay[s] down by legislative act an

intelligible principle to which the person or body authorized to [act] is directed to conform.’” . . . The statutory scheme

governing the designation of foreign terrorist organizations provides an intelligible principle. . . . [T]he statute permits

the Secretary to make a designation only after making three discrete findings.” (first and third alterations in original)

(quoting South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 795 (8th Cir. 2005) (citing in accord Hammoud, 381

F.3d at 331; United States v. Taleb-Jedi, 566 F. Supp. 2d 157, 172–73 (E.D.N.Y. 2008)).

151 “Terrorism” is defined by cross reference to Section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal

Years 1988 and 1989, Pub. L. 100-204, 101 STAT. 1349 (1987), codified at 22 U.S.C. § 2656(f)(d)(2).

152 For purposes of § 2339B, the term “engage in terrorist activity” is defined by cross reference to § 212(a)(3)(B), 8

U.S.C. § 1182(a)(3)(B), of the Immigration and Nationality Act, which defines the term in subparagraph (iv) (“the term

‘engage in terrorist activity’ means, in an individual capacity or as a member of an organization – (I) to commit or to

incite to commit, under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity;

(II) to prepare or plan a terrorist activity; (III) to gather information on potential targets for terrorist activity; (IV) to

solicit funds or other things of value for - (aa) a terrorist activity; (bb) a terrorist organization described in clause (vi)(I)

or (vi)(II); or (cc) a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and

convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist

organization; (V) to solicit any individual – (aa) to engage in conduct otherwise described in this subsection; (bb) for

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In the Immigration and Nationality Act, and thus under § 2339B, “the term ‘terrorist activity’

means any activity unlawful under the laws of the place where it is committed (or which, if it had

been committed in the United States, would be unlawful under the laws of the United States or

any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another

individual in order to compel a third person (including a governmental organization) to do or

abstain from doing any act as an explicit or implicit condition for the release of the individual

seized or detained.

(III) A violent attack upon an internationally protected person (as defined in Section

1116(b)(4) of Title 18) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any –

(a) biological agent, chemical agent, or nuclear weapon or device, or

(b) explosive, firearm, or other weapon or dangerous device (other than for mere personal

monetary gain), with intent to endanger, directly or indirectly, the safety of one or more

individuals or to cause substantial damage to property.

(VI) A threat, attempt, or conspiracy to do any of the foregoing.153

Attempt, Conspiracy, Aiding and Abetting

Section 2339B outlaws both attempts and conspiracies to violate its substantive provisions.154 In

general, attempt is the unfulfilled commission of an underlying offense. As noted earlier, if the

attempt succeeds, the offender cannot be prosecuted or punished for both the completed offense

and the attempt to commit it.155 “Attempt” has two elements: (1) an intent to commit the

underlying offense; and (2) some substantial step towards its completion.156 Mere preparation is

membership in a terrorist organization described in clause (vi)(I) or (vi)(II); or (cc) for membership in a terrorist

organization described in clause (vi)(III) unless the solicitor can demonstrate by clear and convincing evidence that he

did not know, and should not reasonably have known, that the organization was a terrorist organization; or (VI) to

commit an act that the actor knows, or reasonably should know, affords 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 – (aa) for the

commission of a terrorist activity; (bb) to any individual who the actor knows, or reasonably should know, has

committed or plans to commit a terrorist activity; (cc) to a terrorist organization described in subclause (I) or (II) of

clause (vi) or to any member of such an organization; or (dd) to a terrorist organization described in clause (vi)(III), 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.”).

153

“Terrorist activity” is defined by cross reference to § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B), of the Immigration

and Nationality Act, which defines the term in subparagraph (iii).

154 18 U.S.C. § 2339B(a)(1).

155 United States v. Rivera-Relle, 333 F.3d 914, 921–22 n.11 (9th Cir. 2003); see generally CRS Report R42001,

Attempt: An Overview of Federal Criminal Law, by Charles Doyle.

156 United States v. Pugh, 945 F.3d 9, 20 (2d Cir. 2019) (“‘In order to establish that a defendant is guilty of an attempt

to commit a crime, the government must prove that the defendant had the intent to commit the crime and engaged in

conduct amounting to a substantial step towards the commission of the crime.’ . . . For purposes of the statute under

which Pugh was charged, ‘a substantial step towards the provision of material support need not be planned to culminate

in actual terrorist harm, but only in support – even benign support – for an organization committed to such harm.’”

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not enough.157 “To constitute a substantial step, a defendant’s actions must cross the line between

preparation and attempt by unequivocally demonstrating that the crime will take place unless

interrupted by independent circumstances.”158 It is no defense that, unbeknownst to the defendant,

commission of the underlying offense was impossible, as for example because he was dealing

with government undercover agents rather than agents of a foreign terrorist organization.159 An

attempt to provide material support in violation of § 2339B and providing the assistance are

punished the same: imprisonment for not more than 20 years (for any term of years or life, if

death results from the commission of the offense), or a fine of not more than $250,000 (not more

than $500,000 for an organization) (or not more than twice the amount of gain or loss associated

with the offense), or imprisonment and a fine.160

Conspiracy to provide material support in violation of § 2339B is the agreement to provide such

support.161 The offense is complete upon assent; the support need be agreed only to, not

delivered.162 Moreover, each of the conspirators is liable not only for the conspiracy, but for any

other foreseeable offense committed by any of the conspirators in furtherance of the overall

scheme.163 Like attempt, conspiracy to provide material support carries the same penalties as the

completed substantive offense: imprisonment for not more than 20 years (for any term of years or

life, if death results from the commission of the offense), or a fine of not more than $250,000 (not

more than $500,000 for an organization) (or not more than twice the amount of gain or loss

associated with the offense), or imprisonment and a fine.164 Unlike attempt, conspirators may be

(first quoting United States v. Yousef, 327 F.3d 56, 134 (2d Cir. 2003; and then quoting United States v. Farhane, 634

F.3d 127, 148 (2d Cir. 2011)); see generally Braxton v. United States, 500 U.S. 344, 349 (1991); United States v.

Hendricks, 950 F.3d 348, 353 (6th 2020) (“Hendricks does not contend that he lacked the requisite intent or common

purpose to form and operate a terrorist cell. Nor does he contend that he failed to take a substantial step toward

engaging in such activity.”); United States v. Suarez, 893 F.3d 1330, 1335 (11th Cir. 2018); United States v. Nguyen,

829 F.3d 907, 918 (8th Cir. 2016); Farhane, 634 F.3d at 145; cf. United States v. Mehanna, 735 F.3d 32, 53 (1st Cir.

2013).

157 Pugh, 945 F.3d at 20; see generally United States v. Alebbini, 979 F.3d 537, 546–47 (6th Cir.2020); United States v.

Faust, 795 F.3d 1243, 1248 (10th Cir. 2015); United States v. Aldawsari, 740 F.3d 1015, 1019–20 (5th Cir. 2014).

158 United States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009); see also United States v. Muratovic, 719 F.3d 809,

815 (7th Cir. 2013); United States v. Irving, 665 F.3d 1184, 1196 (10th Cir. 2011).

159 United States v. Rehak, 589 F.3d 965, 970–71 (8th Cir. 2009); see also Mehanna, 735 F.3d at 53; United States v.

Coté, 504 F.3d 682, 687 (7th Cir. 2007); cf. United States v. Lakhani, 480 F.3d 171, 174–77 (3d Cir. 2007).

160 18 U.S.C. §§ 2339B(a), 3571.

161 See generally United States v. Jimenez Recio, 537 U.S. 270, 274 (2003) (“[T]he essence of a conspiracy is an

‘agreement to commit an unlawful act.’” (quoting Iannelli v. United States, 420 U.S. 770, 777 (1994))); United States

v. Flores, 945 F.3d 687, 712 (2d Cir. 2019) (“The crux of a conspiracy is an agreement between two or more persons to

join together to accomplish something illegal.” (quoting United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019)));

United States v. Orlando, 819 F.3d 1016, 1022 (7th Cir. 2016) (“To convict a defendant of conspiracy, the government

prove beyond a reasonable doubt that the defendant knowingly and intentionally joined in an agreement with one or

more other individuals to commit an unlawful act.”); United States v. Morris, 817 F.3d 1116, 1119 (8th Cir. 2016);

United States v. Valle, 807 F.3d 508, 515–16 (2d Cir. 2015)).

162 United States v. Salahuddin, 765 F.3d 329, 341 (3d Cir. 2014); United States v. Vallone, 752 F.3d 690, 697–98 (7th

Cir. 2014); United States v. Torres-Vázquez, 731 F.3d 41, 45 (1st Cir. 2013); United States v. Rehak, 589 F.3d 965,

971 (8th Cir. 2009); United States v. Moalin, 973 F.3d 977, 1006–07 (9th Cir. 2020) (“None of the three conspiracy

counts [under § 2339A and § 2339B] required the prosecution to prove that Doreh committed an overt act in

furtherance of the conspiracy.”).

163 Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States v. Denton, 944 F.3d 170, 179 (4th Cir. 2019);

United States v. Baker, 923 F.3d 390, 406 (5th Cir. 2019); United States v. Amawi, 695 F.3d 457, 499 (6th Cir. 2012)

(Moore, J., concurring).

164 18 U.S.C. §§ 2339B(a), 3571.

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punished for both conspiracy and for providing material support should the scheme to provide it

succeed.165

Under 18 U.S.C. § 2, anyone who counsels, procures, aids, or abets a violation of § 2339B or any

other federal crime is punishable as though he had committed the offense himself.166 “In order to

aid and abet another to commit a crime it is necessary that a defendant in some sort associate

himself with the venture, that he participate in it as in something that he wishes to bring about,

[and] that he seek by his action to make it succeed.”167 “Typically, the same evidence will support

both a conspiracy and an aiding and abetting conviction.”168 A completed offense is a prerequisite

to conviction for aiding and abetting, but the hands-on offender need be neither named nor

convicted.169

Consequences of Charge or Conviction

Conviction for a violation of § 2339B is punishable by imprisonment for not more than 20 years

(for any period of years or for life if death results from commission of the offense) or a fine of not

more than $250,000 (not more than $500,000 for an organizational defendant), or both

imprisonment and a fine.170 The Sentencing Guidelines assign a base offense level of 26 which

translates, without more, to a sentencing range of 63 to 78 months imprisonment for offenders

165 Iannelli v. United States, 420 U.S. 770, 777–78 (1975); United States v. George, 886 F.3d 31, 41 (1st Cir, 2018);

United States v. Chandia, 514 F.3d 365, 372 (4th Cir. 2008) (“We also disagree with Chandia’s argument that Congress

did not intend to authorize multiple punishments for a conspiracy and a substantive violation under § 2339B. Chandia’s

argument is based on the language of the statute, which prohibits the conspiracy and the actual provision of material

support in the same section. See 18 U.S.C. § 2339B(a)(1). (‘Whoever knowingly provides material support . . . or

attempts or conspires to do so . . . ’).” (alterations in original)). But, as the Supreme Court has held, the ‘settled

principle’ that “‘the commission of the substantive offense and a conspiracy to commit it are separate and distinct

offenses’” does not give way simply because the statute describing the substantive offense also specifically prohibits

conspiracies. Callanan v. United States, 364 U.S. 587, 593 (1961) (quoting Pinkerton, 328 U.S. at 643).

166 In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016); see generally CRS Report R43769, Aiding, Abetting, and the

Like: An Overview of 18 U.S.C. § 2, by Charles Doyle.

167 Nye & Nissen v. United States, 336 U.S. 613, 619 (1949); see also Rosemond v. United States, 572 U.S. 65, 71

(2014) (“As at common law, a person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an

affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense’s commission.”); United

States v. Tanco-Baez, 942 F.3d 7, 27 (1st Cir. 2019); United States v. Daniels, 930 F.3d 393, 403 (5th Cir. 2019);

United States v. Brown, 929 F.3d 1030, 1039 (8th Cir. 2019); see also United States v. Sineneng-Smith, 910 F.3d 461,

482 (9th Cir. 2018) (“‘[T]he elements necessary for an aiding and abetting conviction are: (1) that the accused had the

specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the

underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying

substantive offense, and (4) that someone committed the underlying substantive offense.’” (quoting United States v.

Thum, 749 F.3d 1143, 1148–49 (9th Cir. 2014)), vacated and remanded on other grounds, 140 S. Ct. 1575 (2020);

United States v. Little, 829 F.3d 1177, 1184 (10th Cir. 2016).

168 United States v. Vasquez, 677 F.3d 685, 695 (5th Cir. 2012); see also United States v. Boria, 592 F.3d 476, 481 n.8

(3d Cir. 2010).

169 United States v. Bowens, 907 F.3d 347, 351 (5th Cir. 2018); United States v. Litwok, 678 F.3d 208, 213 n.1 (2d Cir.

2012) (“The Government never clearly identified whom Litwok aided and abetted in this fraud. [Yet,] ‘[t]o show a

violation of 18 U.S.C. § 2 it is not necessary to identify any principal at all, provided the proof shows that the

underlying crime was committed by someone.’” (quoting United States v. Perry, 643 F.2d 38, 45 (2d Cir. 1981));

United States v. Mullins, 613 F.3d 1273, 1290 (10th Cir. 2010) (“It is not even essential that the identity of the

principal be established. The prosecution only need prove that the offense has been committed.” (quoting United States

v. Harper, 579 F.2d 1235, 1239 (10th Cir. 1978)).

170 18 U.S.C. §§ 2339B(a)(1), 3571(b), (c). Congress increased the maximum term of imprisonment from 15 to 20 years

in 2015, USA FREEDOM Act of 2015, Pub. L. No. 114-23, § 704, 129 STAT. 300.

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with a virtually pristine criminal record.171 Section 2339B offenses, however, like those of

§ 2339A, may trigger the Guidelines’ terrorism adjustment.172

Section 3A1.4 of the Guidelines raises the offense level to 32 and the criminal history to category

VI, which applies when the offense “involved or was intended to promote, a federal crime of

terrorism” and which translates to a sentencing range of 210 to 262 months in prison.173 A

“federal crime of terrorism” is any of the offenses listed in § 2332b(g)(5)(B) and “calculated to

influence or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct.”174 It requires “that the underlying felony,” the triggering crime of terrorism,

“[be] calculated to influence or affect the conduct of government by intimidation or coercion, or

to retaliate against government conduct.”175

Constitutional challenges to § 3A1.4, arguing the adjustment violates the Eighth Amendment

prohibition on cruel and unusual punishment176 or the Sixth Amendment right to a jury trial or the

Fifth Amendment right to due process, 177 have yet to prevail.

Sentencing courts may depart from the sentencing range recommended by the Guidelines,178 but

are subject to review if the sentence they impose is procedurally or substantively unreasonable.179

A sentence is procedurally unreasonable, among other things, if it results from a Guideline

miscalculation.180 A sentence is substantively unreasonable, if it is unduly lenient or unduly

severe based on the nature and severity of the offense and the defendant’s circumstances.181

171 U.S. SENT’G GUIDELINES MANUAL § 2M5.3 (U.S. SENT’G COMM’N 2021); id. Sentencing Table.

172 U.S.S.G § 3.A1.4 (“(a) If the offense is a felony that involved, or was intended to promote, a federal crime of

terrorism, increase by 12 levels; but if the resulting offense level is less than level 32, increase to level 32. (b) In each

such case, the defendant’s criminal history category from Chapter Four . . . shall be Category VI.”); id. § 3A1.4, cmt.

app. n.1 (“For purposes of this guideline, ‘federal crime of terrorism’ has the meaning given that term in 18 U.S.C.

§ 2332b(g)(5).”). Section 2332b(g)(5) states, “the term ‘Federal crime of terrorism’ means an offense that -- (A) is

calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct; and (B) is a violation of – (i) section . . . 2339A (relating to providing material support to

terrorists), 2339B (relating to providing material support to terrorist organizations) . . . of this title . . .”).

173 U.S. SENT’G GUIDELINES MANUAL, Sentencing Table.

174 18 U.S.C. § 2332b(g)(5)(A).

175 United States v. Alhaggagi, 978 F.3d 693, 700 (9th Cir. 2020) (quoting United States v. Stewart, 590 F.3d 93, 138

(2d Cir. 2009); see also United States v. Arcila Ramrez, 16 F.4th 844, 852–55 (11th Cir. 2021); United States v.

Khatallah, 41 F.4th 608, 646 (D.C. Cir. 2022).

176 United States v. Suarez, 893 F.3d 1330, 1335 (11th Cir. 2018).

177 United States v. Ali, 799 F.3d 1008, 1030-31 (8th Cir. 2015) (citing United States v. Meskini, 319 F.3d 88, 92 (2d

Cir. 2003) with regard to the due process contention); United States v. Khan, 938 F.3d 713, 717 (5th Cir. 2019); United

States v. Abu Khatallah, 314 F. Supp. 3d 179, 197 (D.D.C. 2018) (“So long as a defendant’s sentence is within the

range prescribed by statute, the use of judge-found facts to arrive at that sentence ‘does not implicate the Sixth

Amendment.’ Nor does that practice violate the Due Process Clause of the Fifth Amendment.” (quoting United States

v. Jones, 744 F.3d 1362, 1379 (D.C. Cir. 2014)).

178

United States v. Kabir, 51 F.4th 820, 828 (9th Cir. 2022).

179 Gall v. United States, 552 U.S. 38, 51 (2007); e.g., United States v. Kourani, 6 F.4th 345, 356–58 (2d Cir. 2021).

180 Gall, 552 U.S. at 51; see also United States v. Pugh, 945 F.3d 9, 24–25 (2d Cir. 2019) (“[A] sentencing judge

‘should begin all sentencing proceedings by correctly calculating the applicable [Sentencing] Guidelines range.’ In

addition, before imposing a sentence, the district court has an obligation to weigh all the factors listed in section

3553(a). . . . Violation of the duties to correctly calculate the Guidelines, to consider the section 3553(a) factors, and to

state the reasons for the particular sentence imposed can all give rise to an appellate determination of procedural

unreasonableness.” (citation omitted) (quoting Gall, 552 U.S. at 49)); Khan, 938 F.3d at 717–18; United States v.

Hammadi, 737 F.3d 1043, 1047 (6th Cir. 2013).

181 Gall, 552 U.S. at 51; see also United States v. Ceasar, 10 F.4th 66, 70 (2d Cir. 2021) (vacating a 48-month sentence

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Federal Crime of Terrorism

Section 2339B violations constitute federal crimes of terrorism if they are “calculated to influence

or affect the conduct of government by intimidation or coercion, or to retaliate against

government conduct.”182 Classification as a federal crime of terrorism has several consequences.

Property derived from, involved in, or used in, the commission of such an offense committed

against the United States or any of its nationals is subject to confiscation.183 Federal crimes of

terrorism are by definition predicate offenses under federal money laundering and RICO

prosecutions.184 Prosecution of a § 2339B offense is subject to an eight-year statute of limitations,

rather than the general five-year period.185 An accused charged with a violation of a federal crime

of terrorism faces an enhanced prospect of pre-trial detention.186 A defendant convicted for

violating a federal crime of terrorism faces a possible life-time term of supervised release, rather

than the general five-year maximum term.187

as “shockingly low” following conviction for conspiracy to violate § 2339B); United States v. Khan, 997 F.3d 242, 248

(5th Cir. 2021) (reversing as substantively unreasonable an 18-month sentence following conviction for violation of §

2339B); United States v. Mumuni, 946 F.3d 97, 107 (2d Cir. 2019) (“In sum, in reviewing a sentence for substantive

reasonableness, we are . . . ‘concluding, after careful review, (1) that a sentence lacks a proper basis in the record, (2)

that a trial judge’s assessment of the evidence leaves the reviewing court with a definite and firm conviction that a

mistake has been committed, or (3) that the reviewing court has reached the informed judgment that a sentence is

otherwise unsupportable as a matter of law.’” (quoting United States v. Park, 758 F.3d 193, 200–01 (per curiam))

(holding that a 17-year prison term for attempting to kill a federal officer and providing material support to a

designated foreign terrorist organization was substantively unreasonable in light of the serious nature of the defendant’s

conduct)); Suarez, 893 F.3d at 1337; Hammadi, 737 F.3d at 1047 (“[W]e examine the substantive reasonableness of the

sentence, reversing if the § 3553(a) factors considered together do not justify the sentence imposed.”); Ali, 799 F.3d at

1033 (A court imposes a substantively “unreasonable sentence ‘when it fails to consider a relevant and significant

factor, gives significant weight to an irrelevant or improper factor, or considers the appropriate factors but commits a

clear error of judgment in weighing those factors.’ However, when a district court varies downward from the advisory

sentencing guidelines range . . . ‘it is nearly inconceivable that the court abused its discretion in not varying downward

still further.’” (first quoting United States v. Stong, 773 F.3d 920, 926 (8th Cir. 2014); and then quoting United States

v. Zauner, 688 F.3d 426, 429 (8th Cir. 2012)).

182 18 U.S.C. § 2332b(g)(5)(A),

183 18 U.S.C. § 981(a)(1)(G)(iii); see generally CRS Report 97-139, Crime and Forfeiture, by Charles Doyle.

184 18 U.S.C. §§ 1956(c)(7)(D), 1961(1)(G). Among other things, the federal racketeering statute prohibits conducting,

through the patterned commission of more than one predicate offense, the affairs of an enterprise whose activities affect

interstate or foreign commerce, 18 U.S.C. §§ 1962, 1961. The principal federal money laundering offenses include

engaging in a financial transaction involving the proceeds of a predicate offense that is designed to launder the

proceeds or to use them to promote further predicate offenses, 18 U.S.C. §§ 1956(a)(1), (c)(7). See generally CRS

Report 96-950, RICO: A Brief Sketch, by Charles Doyle, and CRS Report RL33315, Money Laundering: An Overview

of 18 U.S.C. § 1956 and Related Federal Criminal Law, by Charles Doyle.

185 18 U.S.C. §§ 3286(a), 3282. Prosecution of a federal crime of terrorism may be brought at any time if the offenses

involve the risk of serious bodily injury. 18 U.S.C. § 3286(b).

186 18 U.S.C. §§ 3142(f)((1)(A), (g)(1); see e.g., United States v. Omar, 107 F. Supp. 3d 1008, 1009 (D. Minn. 2015)

(“Because the Defendant has been charged under 18 U.S.C. § 2339B, and because the Magistrate Judge found probable

cause exists to support these charges, there is a rebuttable presumption that no condition or combination of conditions

will reasonably assure the appearance of the Defendant and the safety of the community.” (Providing material support

or resources to designated foreign terrorist organizations is a crime listed in 18 U.S.C. § 2332b(g)(5)(i)); United States

v. Sheikh, 994 F. Supp. 2d 736, 739–41 (E.D.N.C. 2014); United States v. Salman, 241 F. Supp. 3d 1288, 1290–92

(M.D. Fla. 2017).

187 18 U.S.C. §§ 3583(j), (b). A term of supervised release is a period of time during which a defendant, having been

released from prison, is subject to the supervision of the Probation Service and a number of conditions which may

restrict his travel, employment, associations, or use of the Internet, among other things, 18 U.S.C. §§ 3583(c), (d); see

generally CRS Report RL31653, Supervised Release (Parole): An Overview of Federal Law, by Charles Doyle.

Congressional Research Service

Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Extraterritorial Jurisdiction

In general, federal criminal law is territorial—that is, it applies only to conduct within the

territory of the United States—unless Congress signifies otherwise.188 Congress has used one of

two methods to signal overseas application of a criminal statute. In some cases, the statute states

in general terms, without more, that it has extraterritorial application.189 In others, it describes the

circumstances under which it reaches offenses committed overseas.190

Section 2339B has both a general statement of extraterritorial jurisdiction (§ 2339B(d)(2)) and an

enumerating statement of extraterritorial jurisdiction (§ 2339B(d)(1)).191 The general statement

declares, “There is extraterritorial Federal jurisdiction over an offense under this section,”192 The

enumerating statement provides, “There is jurisdiction over an offense under subsection (a) if –

(A) an offender is a national of the United States . . . or an alien lawfully admitted for

permanent residence in the United States . . . ;

(B) an offender is a stateless person whose habitual residence is in the United States;

the United States, even if the conduct required for the offense occurs outside the United

States;

(D) the offense occurs in whole or in part within the United States;

(E) the offense occurs in or affects [U.S.] interstate or foreign commerce; or

(F) an offender aids or abets any person over whom jurisdiction exists under this paragraph in

committing an offense under subsection (a) or conspires with any person over whom

jurisdiction exists under this paragraph to commit an offense under subsection (a).”193

The general statement has been part of the section since its inception.194 The enumerative

statement appeared as part of the Intelligence Reform and Terrorism Prevention Act of 2004.195

The legislative history of the 2004 legislation does not explain why the apparently overlapping

enumerative statement was thought necessary.196 Had the general statement been dropped at the

time, it would be clear Congress intended extraterritorial application to be confined to situations

188 Smith v. United States, 507 U.S. 197, 203 (1993); Small v. United States, 544 U.S. 385, 388–89 (2005); cf. RJR

Nabisco, Inc. v. European Community, 579 U.S. 325 (2016); see generally CRS Report 94-166, Extraterritorial

Application of American Criminal Law, by Charles Doyle.

189 18 U.S.C. § 351(i) (crimes committed against Members of Congress) (“There is extraterritorial jurisdiction over the

conduct prohibited by this section”); 18 U.S.C. § 2381 (treason) (“Whoever . . . within the United States or elsewhere .

. . .”).

190 18 U.S.C. § 175(a) (relating to biological weapon offenses) (“There is extraterritorial Federal jurisdiction over an

offense under this section committed by or against a national of the United States”); 18 U.S.C. §1203(b)(1) (relating to

hostage taking) (“[I]t is not an offense under this section if the conduct required for the offense occurred outside the

United States unless – (A) the offender or the person seized or detained is a national of the United States; (B) the

offender is found in the United States; or (C) the governmental organization sought to be compelled is the Government

of the United States.”).

191 18 U.S.C. § 2339B(d)(1), (d)(2).

192 18 U.S.C. § 2339B(d)(2).

193 18 U.S.C. § 2339B(d)(1).

194 Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 303, 110 STAT. 1250 (codified at 18

U.S.C. § 2339B(d) (2000)).

195 Pub. L. No. 108-458, § 6603(d), 118 STAT. 3763 (2004).

196 H.R. Rep. No. 108-724, pt. V, at 172–73; pt. VI, at 173–74 (2004).

Congressional Research Service

Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

in the enumerative statement. Including both suggests Congress may have intended

extraterritorial application in any situation that falls under either provision. Several district courts,

however, may have reached a different conclusion, although their explanations might be

attributable to the language of the indictments at issue.197

In response to the contention that § 2339B prosecutions violate due process constraints, some

courts have stated that “[f]or non-citizens acting entirely abroad, a [due-process-required]

jurisdictional nexus exists when the aim of that activity is to cause harm inside the United States

or to U.S. citizens or interests.”198

Civil Actions

Section 2339B(c) authorizes the Attorney General or the Secretary of the Treasury to bring a civil

suit in district court to enjoin violation of the section, but has yet to be the subject of any reported

case.

As with violations of § 2339A, § 2333 may provide victims of § 2339B with a cause of action for

triple damages and attorneys’ fees. “Any national of the United States[,] injured in his or her

person, property, or business by reason of an act of international terrorism[,]” may recover under

§ 2333.199 Acts of international terrorism consist of dangerous crimes, such as violations of

§ 2339B,200 apparently committed for terrorist purposes,201 and having some international

nexus.202

197 United States v. Ahmed, 94 F. Supp. 3d 394, 411 (E.D.N.Y. 2015) (“Defendants are mistaken that the statute has

‘boundless’ extraterritorial reach . . . [T]he statute includes an ‘extraterritorial jurisdiction’ element, which provides a

disjunctive list of circumstances under which the statute has extraterritorial reach . . . thus, any extraterritorial

application of the statute is limited by this list.”) (The court refers to the extraterritorial list in § 2339B(d)(1), but does

not mention the general extraterritorial statement in § 2339B(d)(2).); United States v. Elshinawy, 228 F. Supp. 3d 520,

538, 538 n.10 (D. Md. 2016) (“In order to satisfy its burden of proof as to these counts [under § 2339B], the

government must prove . . . that one of the jurisdictional requirements in the statute is satisfied.”) (citing to § 2339B(d)

but seeming to refer only to § 2339B(d)(1)); United States v. Jama, 217 F. Supp. 3d 882, 887 (E.D. Va. 2016) (“The

Court has jurisdiction as to each count [under § 2339B] with respect to each Defendant if, among other grounds, she is

a national . . . .”) (referring to some of the enumerated grounds for jurisdiction under § 2339B(d)(1), without any

apparent reliance on the general statement of jurisdiction under § 2339B(d)(2)).

198 United States v. Al Kassar, 660 F.3d 108, 118 (2d Cir. 2011); see also United States v. Naseer, 38 F. Supp. 3d 269,

272–73 (E.D.N.Y. 2014); Ahmed, 94 F. Supp. 3d at 408–09; but see In re Sealed Case, 936 F.3d 582, 593–94 (D.C. Cir.

2019) (“We have repeatedly declined, however, to hold that the Due Process Clause demands such a nexus—or to even

resolve ‘whether the Due Process Clause constrains the extraterritorial application of federal criminal laws’ at all. . . .

‘The animating principle governing the due process limits of extraterritorial jurisdiction,’ to the extent such limits exist,

‘is the idea that no man shall be held criminally responsible for conduct which he could not reasonably understand to be

proscribed.’”) (first quoting United States v. Ballestas, 795 F.3d 138, 148 (D.C. Cir. 2015); and then quoting United

States v. Ali, 718 F.3d 929, 944 (D.C. Cir. 2013)).

199

Section 2333 also permits recovery a victim’s estate, survivors, heirs.

200 18 U.S.C. § 2331(1)(A) (“the term ‘international terrorism’ means activities that –(A) involve violent acts or acts

dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a

criminal violation if committed within the jurisdiction of the United States or of any State. . . .”).

201 18 U.S.C. § 2331(1)(B) (“the term ‘international terrorism’ means activities that – . . . (B) appear to be intended – (i)

to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or

(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping . . . .”).

202 18 U.S.C. § 2331(1)(C) (“the term ‘international terrorism’ means activities that – . . . (C) occur primarily outside

the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are

accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate

or seek asylum.”).

Congressional Research Service

Terrorist Material Support: An Overview of 18 U.S.C. § 2339A and § 2339B

Injuries resulting “by reason of” of the defendant’s conduct are those proximately caused by the

defendant’s conduct.203 The precise meaning of proximate cause, however, has long been a matter

of some dispute, as noted earlier with respect to § 2339A. Again, the Supreme Court has said “the

notion of proximate cause reflects ‘ideas of what justice demands, or of what is administratively

possible and convenient.’”204 In the Second and District of Columbia Circuits the § 2333

proximate cause test involves asking “(1) whether the defendants’ acts were a ‘substantial factor’

in the sequence of events’ that led to the plaintiffs’ injuries; and (2) whether those injuries were

‘reasonably foreseeable or anticipated as a natural consequence of’ defendants’ conduct.”205

The courts have concluded that the violations of § 2339A or § 2339B may constitute “acts of

international terrorism” under § 2333.206 They do so by construing violations of § 2339A or §

2339B as acts of “international terrorism” as defined in § 2331(1).207 Liability extends to those

who aid and abet a terrorist organization in its commission of acts of international

terrorism.208This aiding and abetting liability requires that the defendant “conscious[ly],

203 Crosby v. Twitter, Inc., 921 F.3d 617, 623 6th Cir. 2019); Fields v. Twitter, Inc., 881 F.3d 739, 744 (9th Cir. 2018);

Kemper v. Deutsche Bank AG, 911 F.3d 383, 391 (7th Cir. 2018); see also Retana v. Twitter, Inc., 1 F.4th 378, 384

(5th Cir. 2021) (“. . . the correct test for secondary liability is proximate cause. . . .”).

204 Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON

ON THE LAW OF TORTS § 41, p. 264 (5th ed. 1984)).

205 Crosby v. Twitter, Inc., 921 F.3d 617, 624 (6th Cir. 2019) (citing Owens v. BNP Paribas, S.A., 897 F.3d 266, 273

(D.C. Cir. 2018) and Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013)) (holding plaintiffs before it had failed to

establish proximate cause).

206 Boim v. Quranic Literacy Inst., 291 F.3d 1000, 1015 (7th Cir. 2002) (“If the plaintiffs could show that [the

defendants] violated either section 2339A or section 2339B, that conduct would certainly be sufficient to meet the

definition of ‘international terrorism’ under sections 2333 and 2331. . . . Congress has made clear, though, through the

criminal liability imposed in sections 2339A and 2339B, that even small donations made knowingly and intentionally

in support of terrorism may meet the standard for civil liability in section 2333.”); Linde v. Arab Bank, PLC, 97 F.

Supp. 3d 287, 322 (E.D.N.Y. 2015) (“I agree with those courts that have held that a violation of 18 U.S.C. § 2339B is

itself an act of international terrorism. . . . Violations of 18 U.S.C. § 2339B and § 2339C are recognized as international

terrorism under 18 U.S.C. § 2333(a)”), vacated on other grounds, 882 F.2d 314 (2d Cir. 2018) (holding the

congressional addition of aiding and abetting liability did not apply retroactively); see also Abecassis v. Wyatt, 785 F.

Supp. 2d 614, 649 (S.D. Tex. 2011).

207 Boim v. Holy Land Found., 549 F.3d 685, 690 (7th Cir. 2008) (en banc) (“The first panel opinion discussed