Terrorist Material Support: An Overview of 18 U.S.C. §2339A and §2339B Page: 4 of 27
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Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B
Introduction
The two federal material support statutes have been at the heart of the Justice Department's
terrorist prosecution efforts.' One provision outlaws providing material support for the
commission of certain designated offenses that might be committed by terrorists, 18 U.S.C.
2339A. The other outlaws providing material support to certain designated terrorist
organizations, 18 U.S.C. 2339B. They largely share a common definition of the term "material
support."
Background
Since their inception in the mid-1990s, Congress has periodically expanded and sought to clarify
the scope of Sections 2339A and 2339B. Section 2339A passed with little fanfare as part of a
wide-ranging crime package, the Violent Crime Control and Law Enforcement Act of 1994.2
Almost immediately thereafter, Congress amended Section 2339A and supplemented it with
Section 2339B as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).3
As the House committee report explained, new Section 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, 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.4
In 2001, the USA PATRIOT Act amended both sections, increasing the maximum term of
imprisonment from 10 to 15 years (and to life imprisonment when commission of the offense
1 A Review of the Material Support to Terrorism Prohibition Improvements Act: Hearing Before the Subcomm. on
Terrorism, Technology and Homeland Security, 109th Cong., 1" Sess. 45 (2005) (statement of Barry Sabin, Chief,
Counterterrorism Section, U.S. Dept. of Justice); Implementation of the USA PATRIOTAct: Prohibition of Material
Support Under Sections 805 of the USA PATRIOTAct and 6603 of the Intelligence Reform and Terrorism Prevention
Act of 2004, 109th Cong., 1" Sess. 18 (2005) (statement of Barry Sabin, Chief, Counterterrorism Section, U.S. Dept. of
Justice); 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").
2 P.L. 103-322, 120005, 108 Stat. 2022 (1994). The Violent Crime Control and Law Enforcement Act was a three
hundred and fifty-five page amalgam of legislative proposals consisting of thirty-three 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 had been
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, had been included in much the same language in separate legislative
proposals offered by members of both parties in both Houses, see e.g., H.R. 1301, 110 (Representative Schumer);
H.R. 2847, 702 (Representative Sensenbrenner); H.R. 2872, 421 (Representative McCullom); H.R. 1313
(Representative Brooks); S. 8, 702 (Senator Hatch); S. 1488, 726 (Senator Biden).
3 P.L. 104-132, 323, 303, 110 Stat. 1255, 1250, respectively. Section 323 amended Section 2339A to enlarged its
predicate offense list to include 18 U.S.C. 37 (violence at international airports), 81 (arson), 175 (biological
weapons), 831 (nuclear weapons), 842(m) and (n) (plastic explosives), 1362 (destruction of communications facilities),
2155 and 2156 (destruction, or defective production, of war materials), 2332 (terrorist violence against Americans
overseas), 2332a (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) (use of a firearm during a murderous
attack on a federal facility), 1992 (train wrecking), and 2332c (chemical weapons), P.L. 104-294, 601(b)(2), (s)(2),
(s)(3), 110 Stat. 3502, 3506 (1996).
4 H.Rept. 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.Congressional Research Service
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Doyle, Charles. Terrorist Material Support: An Overview of 18 U.S.C. §2339A and §2339B, report, December 8, 2016; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc958653/m1/4/: accessed May 21, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.