Terror Financing, Guilt by Association and the Paradigm of Prevention in the ‘War on Terror’

Material support has become the watchword of the post-9/11 era. Material support to groups that have been designated as terrorist has been the U.S. government\u27s favorite charge in post-9/11 terrorism prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a war crime. This essay argues that the criminalization of material support to designated terrorist organizations is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership and association with the Communist Party did during the Cold War. I first outline the ways in which guilt by association has been revived through the concept of penalizing \u27material support\u27 for organizations labeled terrorist. I then discuss the constitutional questions that these laws present, and sketch how the courts have thus far resolved those questions. In short, the courts have sought to trim the worst excesses of the laws, but have been largely unwilling to confront head on their fundamental infirmity - the imposition of guilt by association without any proof of intent to further any terrorist acts. The essay concludes by explaining how the material support laws fit into the United States\u27 broader paradigm of prevention in confronting the threat of terrorism. That term, coined by former Attorney General John Ashcroft, describes an amalgam of tactics in which the government employs highly coercive and intrusive measures against groups and individuals based not on proof of past wrongdoing, but on necessarily speculative fears about what they might do in the future. The material support laws further this goal by expanding the definition of what constitutes a past crime, just as the Smith Act membership provision of the Cold War era did. These laws are not purely preventive, in that they do require proof of some past wrongdoing. But their expansive definitions of wrongdoing stretch that concept beyond its limits in the name of preventing future harm