JURIST Guest Columnist Christopher Elsee, St. John’s University School of Law Class of 2013, is the author of the tenth article in a 15-part series from the staffers of the Journal of Civil Rights and Economic Development. He discusses the weaknesses of the Terrorist Expatriation Act and suggests how to improve it…

Imagine you have just written a check to an organization that sends mechanical engineering textbooks to students in Afghanistan or Iraq. Now further imagine that you have been engaged in this practice for well over a decade because you are interested in helping individuals in developing countries to improve their technical knowledge, with the hopes of enabling them to better themselves. Are you supporting terrorists? According to a proposed piece of legislation, you may very well be.

The Terrorist Expatriation Act is proposed legislation that addresses what some politicians consider heightened threats since the War on Terror began over ten years ago. The proposed legislation would add more actions to the current statutory scheme that could result in an American citizen losing his or her citizenship. The act adds offenses such as providing material support to foreign terrorist organizations, engaging in or purposefully and materially supporting hostilities against the US or any country engaged in hostilities alongside the US or providing direct operational support to the US. Another section of the act explains that “material support or resources” means, among other things as the list goes on, property, services, training, expert advice or assistance, communications equipment and facilities.

So, with respect to that check you wrote for textbooks for Afghani mechanical engineering students, are you providing “expert advice or assistance” considering that the contents of the books may provide “scientific, technical, or other specialized knowledge?” You may have no way of knowing for certain. Suppose you were unaware that some portion of the funds or books that go to this charitable organization were being siphoned off and funneled to a splinter group in Afghanistan that is fighting directly against American interests. Federal agents could very well show up at your door and accuse you of providing material support or resources to a foreign terrorist group.

A fundamental problem in this scenario is that you did not know that your funds were ever going towards the support of a foreign terrorist organization. This is where the Terrorist Expatriation Act fails miserably: there is no clearly defined standard for what it means to “purposefully and materially” support terrorist organizations. The relevant portion of an accompanying statute indicates that an individual who provides material support or resources “knowing or intending that they are to be used in preparation for” numerous violations under the code is guilty and can be fined and imprisoned for up to a life term. However, there is no further guidance about what it actually means to know that one is supporting a terrorist group.

The Terrorist Expatriation Act, in order to be a viable piece of legislation that actually serves American governmental interests while still protecting the interests of its citizens, needs to be clarified. To that end, Congress should revisit the act and provide clear standards of what it means to “knowingly” engage in support to terrorists. With this change, you could write your check for textbooks without the fear that the government might one day come knocking at your door. To do this, Congress could look to standard penal definitions of “knowingly” for guidance. For example, New York’s penal law defines a knowing act “with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists.” If the Terrorist Expatriation Act included a definition such as this, it would be clear to an individual that in order to be held accountable he or she must be aware that a given activity (such as writing a check or sending textbooks) would actually be going to a terrorist organization as support. In order for that individual to lose their citizenship he or she would have to volitionally support the charitable organization with the knowledge that this support is also going to another organization engaged in hostilities with the US.

Americans have always valued their personal freedoms. The continuation of a war of extraordinary circumstances should not allow for a diminishing of these freedoms. Therefore, the Terrorist Expatriation Act should not be passed as is, but rather should be written to make it clear that an individual must be aware of the consequences of his or her actions before triggering the extreme consequence of losing American citizenship. This would allow the government to better protect American freedoms generally while still prosecuting the War on Terror.

Christopher Elsee is interested in constitutional law promoting the defense of individual liberty and limited government. He is also interested the protection of real property rights. He has clerked at the Institute for Justice and volunteered for the Civil Legal Advice and Resource Office in Queens County, New York.

Suggested citation: Christopher Elsee, Are You Supporting Terrorists? You Just Might Be…, JURIST – Dateline, Nov. 7, 2012, http://jurist.org/dateline/2012/11/christopher-elsee-terrorism-act.php.