Document Type

Article

Disciplines

International Law

Abstract

Terrorists are an elusive bunch. The ability to track and terminate the source of terrorists' funding is central to making large strides against international terrorism. But the United States has had only limited success-terrorists have proved themselves to be thoughtful and formidable enemies, able to frustrate the most sophisticated efforts of their enemies by using the unconventional combination of ancient guerilla warfare tactics and advanced technologies to accomplish their goals.' In response to the tragic attacks of September 11, 2001, Congress passed the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, or USA Patriot Act (Patriot Act), and the United States' intelligence agencies refocused and redoubled their efforts to combat terror. Some of these efforts, however, may frustrate rather than further U.S. goals.

To avoid detection by global intelligence services resulting from the electronic, traceable trails of their financial transactions, terrorists often resort to a centuriesold form of unlicensed money transfer called hawallah' This not only protects the identities of the terrorists themselves but also the identities of those who fund terrorists. Before September 11, 2001, Congress criminalized the financing of terrorism within the United States with section 2339A of Title 18 ("section 2339A"). 3 The Patriot Act, however, strengthened section 2339A's prohibition against the provision of material support to terrorists by permitting its extraterritorial application.' In addition, the Patriot Act amended section 2339B of Title 18 ("section 23398"), which directly proscribed the provision of material support not only to terrorists themselves but to foreign terrorist organizations ("FTOs"), and provided for lengthier prison sentences, up to life imprisonment.

The United States is far from being the only nation to condemn the financing of terrorists and FTOs. On December 9, 1999, the United Nations General Assembly adopted the International Convention for the Suppression of the Financing of Terrorism ("the International Convention"). It was not until June 2002, however, that the United States ratified the International Convention. Shortly thereafter, Congress passed section 2339C of Title 18 ("section 2339C") which extraterritorially proscribed the provision or collection of funds for terrorists, fulfilling the United States' obligation under the International Convention. Specifically, the International Convention recalls the General Assembly resolution calling on all States to "take steps to prevent and counteract, through appropriate domestic measures, the financing of terrorists and terrorist organizations, whether such financing is direct or indirect through organizations which also have or claim to have charitable, social or cultural goals or which are also engaged in unlawful activities .... ."' While the Department of Justice ("DOJ") has used sections 2339A and 2339B to prosecute the provision of material support to terrorists and FTOs, the DOJ has yet to prosecute an offender under section 2339C.7 Sections 2339A, 2339B, and 2339C provide the DOJ with ample authority to prosecute the financing of FTOs domestically and abroad. Their extraterritorial reach, however, is broad and controversial and the wisdom of their application is questionable.

This article will examine the extraterritorial application and efficacy of sections 2339A, 2339B, and 2339C. Part I of this article discusses the policies underlying sections 2339A, 2339B, and 2339C, their prohibited acts, mechanics, and jurisdictional predicates. Because of the complexity of section 2339C, this article explores section 2339C's operation and extraterritorial application in great detail. Part II of this article examines the principles of international law that permit the extraterritorial application of a nation's criminal laws, and attempts to place the application of sections 2339A, 2339B, and 2339C within those principles. Part III of this article examines whether extraterritorially prosecuting the provision of material support to terrorists and FTOs is a useful tool to combat terrorism in the context of intelligence agencies' obligation to protect sources and methods. Finally, in conclusion, this article provides recommendations designed to protect the efficacy of the United States intelligence community's operations with respect to the war on terror while also furnishing the DOJ with powerful tools to prosecute the provision of material support to terrorists and FTOs.

Accessibility Requirements

1

Download

Share

COinS