The Material Support of Hillary Clinton and Tarek Mehanna

18 USC 2339(A) and 18 USC 2339(B) proscribe the material support of terrorism and designated foreign terrorist organizations. In short, it is the “material support” law:

the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

During oral argument on the now seminal defining case as to the astounding reach of this statute, Holder v. HLP, now Supreme Court Justice Elena Kagan argued, as Solicitor General, that even humanitarian lawyers could be charged and convicted under the wide ranging provisions:

JUSTICE KENNEDY: Do you stick with the argument made below that it’s unlawful to file an amicus brief?

GENERAL KAGAN: Justice Kennedy —

JUSTICE KENNEDY: I think I’m right in saying it that that was the argument below.

GENERAL KAGAN: Yes, I think that would be a service. In other words, not an amicus brief just to make sure that we understand each other. The Petitioners can file amicus briefs in a case that might involve the PKK or the LTTE for themselves, but to the extent that a lawyer drafts an amicus brief for the PKK or for the LTTE, that that’s the amicus party, then that indeed would be prohibited.

Kagan argued for an interpretation so broad that even the filing of an amicus brief would be violative of the material support prohibitions and the Supreme Court so held.

So, surely, the DOJ is going to heed the words and intent of the right honorable Justice Kagan over this report then, right?

The Iraqi government has promised to shutter Camp Ashraf — the home of the Iranian dissident group Mujahedeen e-Khalq (MEK) — by Dec. 31. Now, the United Nations and the State Department are scrambling to move the MEK to another location inside Iraq, which just may be a former U.S. military base.

The saga puts the United Nations and President Barack Obama’s administration in the middle of a struggle between the Iraqi government, a new and fragile ally, and the MEK, a persecuted group that is also on the State Department’s list of foreign terrorist organizations.

The Marxist-Islamist group, which was formed in 1965, was used by Saddam Hussein to attack the Iranian government during the Iran-Iraq war of the 1980s, and has been implicated in the deaths of U.S. military personnel and civilians. The new Iraqi government has been trying to evict them from Camp Ashraf since the United States toppled Saddam in 2003. The U.S. military guarded the outside of the camp until handing over external security to the Iraqis in 2009. The Iraqi Army has since tried twice to enter Camp Ashraf, resulting in bloody clashes with the MEK both times. (emphasis added)

Well, no, there will be no prosecution for aiding and abetting these terrorists. Now, in all seriousness and fairness, Secretary of State Clinton is probably exempted under 18 USC 2339(B)(j) which provides:

No person may be prosecuted under this section in connection with the term “personnel”, “training”, or “expert advice or assistance” if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act).

Still, the point being the hypocrisy of the US Government who on one hand is willing to prose3cute even attorneys trying to give humanitarian legal assistance to alleged terrorist organizations to help reform them, but is on the other hand willing to actively and affirmatively work to provide a former US military base and accoutrements to shelter a known and designated violent terrorist group, one that has a history of killing Americans, both military and civilian.

While there may be an exemption for the State Department itself, there certainly is not for other US citizens and officials who have, for years, directly aided and abetted the MEK within the definition of “material support. Again, from Josh Rogin’s report in FP’s The Cable linked above:

As part of its multi-million dollar lobbying effort, the MEK has paid dozens of top U.S. officials and former officials to speak on its behalf, sometimes at rallies on the State Department’s doorstep. MEK supporters have been stationed outside the State Department non-stop for months now, and are even showing up at Congressional hearings.

Their list of advocates, most who have admitted being paid, includes Congressman John Lewis (D-GA), former Pennsylvania Gov. Ed Rendell, former FBI Director Louis Freeh, former Sen. Robert Torricelli, Rep. Patrick Kennedy, former CIA Deputy Director of Clandestine Operations John Sano, former National Security Advisor James Jones, former Vermont Gov. Howard Dean, former New York Mayor Rudolph Giuliani, former Joint Chiefs Chairman Gen. Richard Myers, former White House Chief of Staff Andy Card, Gen. Wesley Clark, former Rep. Lee Hamilton, former CIA Director Porter Goss, senior advisor to the Romney campaign Mitchell Reiss, Gen. Anthony Zinni, former Pennsylvania Gov. Tom Ridge, former Sen. Evan Bayh, and many others.

The Department of Justice has just convicted a man, Tarek Mehanna, in Massachusetts for, in significant part, material support in the form of posting videos on the internet. Adam Serwer has a nice description of the parameters of the Mehanna case at Mother Jones that includes this analysis:

“This case is being used by the government to really narrow First Amendment activity in dangerous new ways,” says Nancy Murray of the Massachusetts branch of the American Civil Liberties Union. “It might be speech that horrifies people, but it’s the nature of the First Amendment to protect that speech, unless it’s leading to imminent lawless action.”

Civil liberties advocates say the case represents a slippery slope. In the 2010 case Holder v. Humanitarian Law Project, which decided whether or not providing nonviolent aid (such as legal advice) to terrorist groups constitutes material support for terrorism, the Supreme Court ruled that even protected speech can be a criminal act if it occurs at the direction of a terrorist organization. Based on that ruling, you could be convicted of materially supporting terrorism merely for translating a document or putting an extremist video online, depending on your intentions.

Adam’s article is worth a full read to gain a glimpse of the fine line in material support cases.

Well, it is a fine line in some cases, not so much if it concerns our terrorists. You know, the good terrorists the US Government favors. Tarek Mehanna may think this a pretty inconsistent posture.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
19 replies
  1. MadDog says:

    I was already saying to myself “because they’re our terrorists” before I ever reached the end of your piece.

    In any event, another gauge on just how fookin’ dumb our government really thinks we are.

  2. emptywheel says:

    @MadDog: Right. Along with the allegations that they’re one of teh entities we’ve used in Iran to kill scientists, etc.

    And I’ll repeat: Jamie Dimon is also someone who doesn’t get the Mehanna treatment for his entity’s material support for terrorism. We’re quickly getting to a point where Material Support is just the Admin’s opportunity to selectively prosecute those who don’t heed its line.

  3. bmaz says:


    We’re quickly getting to a point where Material Support is just the Admin’s opportunity to selectively prosecute those who don’t heed its line.

    Right. And when we are doing that in terms of even prosecuting what, at least in another time, would be considered political speech, we are getting pretty far down the rabbit hole.

    Of course we have extrajudicially killed an American citizen for what used to be protected First Amendment Religious and political speech, so I guess this is all kind of silly at this point.

  4. P J Evans says:

    I think we may not have elections in another decade. Or at least not ones that are any more than the kind the Soviet Union had, where you were rubber-stamping the official choices. (As long as they pretend we’re a democracy, we’ll pretend our votes matter.)

  5. brendanx says:

    Has anyone done a post on MEK’s funding? This group masquerades in front of the White House as ashraf-orphans, yet has most of the Republican party, and presumably a lot of Democrats, on its payroll. It doesn’t even look like anyone’s even pretending with this one.

  6. brendanx says:

    As Patrick Clawson said at the start of the invasion, “They’re not terrorists. They do armed attacks inside Iran.”

    What don’t you understand.

  7. lefty665 says:


    Ollie North’s arming of the Iranians helped them defend themselves from MEK attacks, among other things. Which side of the argument do you want?

    “material support…” could come off North’s resume.

  8. Jeff Kaye says:

    This government has been using the epithet “terrorist” to label, imprison or destroy anyone who they feel seriously challenges their rule, or, as the Mehanna case reveals, advocates for any other entity — even as a matter of Free Speech — which they oppose.

    The hypocrisy is sickening, and who knows how many generations of new “terrorists” will be created, seeing in militant Islam, or some other ideology, an sharp rebuke to a society that wallows in such hypocrisy and crime.

    But the MEK is only one instance. Back in 2010, I wrote about “CIA Training Intelligence Agents for ‘State Sponsor of Terrorism’ Sudan.” The story was originally broken by Jeff Stein at his then-Washington Post blog, Spy Talk.

    I was struck by the wording you quote (and btw, great article, bmaz):

    No person may be prosecuted under this section in connection with the term “personnel”, “training”, or “expert advice or assistance” if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity (as defined in section 212(a)(3)(B)(iii) of the Immigration and Nationality Act).

    The bolded portion is their legal cover, as in the case of the Sudan, where the “material support” — for the U.S. that means cash, training, advisers, guns, bombs, logistical support, etc. — is not supposed to be used for “terrorist activity”. But then, how the money is used is not audited in any public way, so we don’t really know that, do we?

    Furthermore, the whole point is that “material support” matters because if frees up resources that otherwise can be used for “terrorism” or other unlawful activities. So… an attorney who files an amicus brief, or a blogger who posts a video, is giving support because the resources that otherwise would be used to hire an Al Qaeda attorney, or an IT person to post videos online, can now be used to recruit or train terrorists. It’s the principle of the fungibility of money applied to terrorism ad absurdum.

    But that really isn’t here nor there, because the U.S. follows only one principle anymore, viz. that might is right.

    Perhaps the US rulers, obviously more and more insecure, even as their arsenal and supremacy grows, should ponder the words of this English revolutionary terrorist-poet, “Who overcomes by force hath overcome but half his foe.”

  9. matt carmody says:

    A good primer on how war is sold through orchestrated questionable events is found in I. F. Stone’s The Hidden History of the Korean War. Everything that has been done by the perpetual war cabal in the government, from the Tonkin Gulf lie straight through to the WMD lie, is present including the manipulation of public opinion by taking advantage of the element of fear.

    I’ve bought 5 copies as xmas gifts for Korean war vets I know who have turned remarkably against the government as a result of Afghanistan.

  10. corinne says:

    Well, no, there will be no prosecution for aiding and abetting these terrorists.

    bmaz omits a little piece of history: How MEK happened to end up on the FTO. In 1997, the Clinton administration added the MEK to the State Department’s blacklist in what a senior administration official, then described as a good will gesture to Iran.

    In June 2003, US forces took control of Camp Ashraf and MEK was consolidated, **all their weapons were secured by military police and their munitions and caches destroyed.** Over the past couple of years, the unarmed residents of Ashraf have come under attack by the Iraqi Army; the most recent on April 8, 2011, when Iraqi security forces in bulldozers and Humvees stormed Camp Ashraf, killing 38 and wounding others. (

    In July 2010, MEK won a ruling from the Court of Appeals for the District of Columbia Circuit that the Secretary of State must reconsider the designation of MEK as a foreign terrorist organization because the information she was relying on to continue that designation was not sufficient.

    Since MEK has effectively been disarmed since 2003, what acts of terrorism have they committed since that should keep them on the FTO list? (

  11. bmaz says:

    @corinne: Well golly, al-Nashiri has been “consolidated” by the US and has not committed any acts since at least fall of 2002, should we give him a free pass instead of trying him in a military commission with the death penalty alleged? Do terrorist attacks on Iran not count in your book because the mean girls of the US government don’t want Iran in their little clique?

    I bet the folks in the Holy Land Foundation and Pete Seda up in Oregon would love to hear your theory of why some designated terrorists who purport to be good guys are okay and should not be the basis of prosecution, and others are not.

  12. Bill Michtom says:

    @jo6pac “May be sooner than we think on that election thingy.”
    Correct me if I’m wrong, but I remember an election way back in 2000 …

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