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Terrorists' Nemesis By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, September 26, 2002


Just as two federal statutes took down Taliban John Walker Lindh, the same two are going to nail every domestic terrorist the FBI can find. Just as Lindh pleaded guilty and faces a long prison sentence, so, too, will all the rest.

Section 371 is the federal conspiracy statute. To prove the crime, the government need only show that at least two individuals agree to commit a federal crime, and that at least one of them performed an act in furtherance of that agreement, even if the act itself was not illegal. Thus, if Omar and Abdul decide to hold up a federally insured bank (an agreement to commit a federal crime), and Omar immediately purchases an automobile (a legal act) for their getaway, the boys from Yemen have violated 18 USC 371.

Section 2339 (actually, there are two sections, 2339A and 2339B) makes it a federal felony to provide "material support" to terrorists (2339A) or terrorist organizations (2339B). "Material support or resources" is defined in Section 2339A(b) as "currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials."

Together, these two federal statutes — even without individual statutes like Section 2339 — constitute America's silver bullet for any terrorist (citizen and non-citizen alike) subject to the jurisdiction of a United States court.

The Lindh case is a good example. Among other crimes — e.g., actually providing material support and resources to terrorist organizations — Taliban John was charged with conspiring to provide material support and resources to terrorist organizations. Over a score of overt acts in furtherance of that conspiracy were alleged. Despite his defense camp's huffing and puffing about how Lindh was innocent and how they would secure his acquittal, in the cold light of the facts and the law they copped a plea, their client accepting a deal that will cost him nearly two decades in federal prison.

As I have written previously in these pages, the same scenario will probably play out for American lawyer Lynne Stewart, as well as the three Middle Eastern men indicted with her in New York last summer for conspiring to provide material support and resources to a foreign terrorist organization by, among other crimes, facilitating communications between terrorists.

Also last summer, a U.S. citizen named Ujaama was indicted by a Seattle grand jury for conspiring to "provide material support and resources" to terrorists and terrorist organizations in the United States and elsewhere by, among other activities, establishing a training camp in the United States. According to the indictment, "The purpose of the conspiracy was to offer and provide facilities in the United States of America for training of persons interested in violent jihad; to provide safe houses in the United States of America for the conspirators; to recruit persons interested in violent jihad and jihad training; to provide actual training of such persons in firearms, military and related activities." Among the acts charged to have been in furtherance of the conspiracy to establish an al-Qaeda training camp in Washington State are searching for property, inspecting possible sites, and establishing security for the property. Knowing that the government can prove an agreement to provide material support and resources, and at least one act in furtherance of that conspiracy, it is likely that Ujaama eventually will plead guilty.

At about the same time Ujaama was being indicted in Seattle, a Detroit grand jury charged five Middle Eastern men with operating a "covert underground support unit" and a "sleeper operational combat cell" on behalf of a radical Islamic movement associated with al-Qaeda. Charging a conspiracy to violate Section 2339A — providing material support to terrorists — the indictment's list of overt acts is lengthy. Like the defendants in the New York and Seattle cases, the Detroit defendants will probably strike a deal with the government because failure to do so would result in long prison sentences if they were convicted — as most certainly they would be.

The same fate awaits the "Buffalo Six," arrested recently and charged with providing material support to terrorists. Interestingly, their few defenders contended that the accused didn't actually do anything — meaning, I suppose, that they had not yet engaged in any terrorist activities within the United States. That argument, of course, entirely misses the point of Sections 2339A and 2339B, let alone when these sections are tied to Section 371. Among other acts, Section 2339A(b) defines "material support" to include "training," — and that is exactly what the government has charged the defendants with: training at terrorist camps in Afghanistan. The men who did that are guilty under Section 2339A and/or Section 2339B. And if there was some sort of an agreement to travel and train, they would be guilty, as well, of conspiracy under Section 371

So discount the assertions of the naysayers, the pessimists, and the fearful, that the United States government lacks the resources to deal with people within our jurisdiction who engage in active or sleeper terrorist activities. Sections 391 and 2339 are more than up to the challenge. Rest assured that, thanks to these two statutes, accused domestic terrorists will fall like tenpins.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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