To conduct research on terrorism and insurgency, it’s best to be able to talk to people.  Combing through incident reports is helpful, but often an informal conversation over a cup of tea is as, if not more, illuminating.  But according to ban on providing “material support” (18 United States Code (U.S.C.) 2339B), buying a cup of tea for a terrorist can land you in [US] jail.  In 1996 the Antiterrorism and Effective Death Penalty Act (AEDPA) prohibited providing “material support or resources” to terrorists, which included providing goods and financing, in addition to intangibles such as training and personnel.  This was expanded in 2001 in the wake of the September 11th attacks, as part of USA PATRIOT Act, and subsequent court decisions interpreting this law, to include “expert advice and assistance” and coordinated advocacy.

As part of the government’s broader counterterrorism strategy, The Departments of Defense, State, and Homeland Security all have major initiatives and funding today to develop and promote better research on terrorism.  But another element of US counterterrorism – the material support ban – not only directly hinders the conduct of exactly this type of research, but also puts scholars in a position where they risk being fined or even imprisoned for researching terrorism and/or insurgency.
According to the American Bar Association, the material support ban

prohibits “providing material support or resources” to an organization the Secretary of State has designated as a “foreign terrorist organization.” The material support ban was first passed as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The provision’s purpose is to deny terrorist groups the ingredients necessary for planning and carrying out attacks. Congress was concerned that terrorist organizations with charitable or humanitarian arms were raising funds within the United States that could then be used to further their terrorist activities. The provision outlawed any support to these groups, irrespective of whether that support was intended for humanitarian purposes.

The list of foreign terrorist organizations, or FTOs, contains many groups whose members scholars would like to interview to further their own research.  In addition to the restriction on contacts with FTOs and other entities listed on a number of other US Government lists, there are restrictions on bringing the modern tools of research, such as laptop computers and cell phones – into sanctioned countries like Syria or Iran due to trade sanctions and  export controls.

Prominent NGOs such as Human Rights Watch, The Carter Center, and the International Crisis Group and academic centers such as Notre Dame’s Kroc Institute have protested these restrictions, specifically by submitting amicus briefs (see more such briefs here, here, and here) in Holder v. Humanitarian Law Project, which was an unsuccessful test case challenging the constitutionality on First Amendment grounds of the material support ban.  Ambiguity in the Holder decision creates uncertainty about what is legal when conducting research involving people who may be affiliated with terrorists.  Any resources transferred to these groups – be it a discussion of your broader research that could be translated into advice, or buying lunch for a subject to thank them for taking the time to speak with you – could, in theory “free up other resources within the organization that may be put to violent ends,” according to the majority opinion of the court.

The Holder decision is an issue not just for academics, but also for journalists and activists.  Many of the groups co-sponsoring the amicus briefs were engaged in peacebuilding activities with groups such as the LTTE in Sri Lanka.  But the court’s ruling was that training members of these groups in international human rights law was illegal.

The material support ban and export control restrictions serve an important purpose. Terrorists are a proven threat to the US, and we shouldn’t abet them.  But in restricting resource transfers wholesale, we limit our ability to understand and help these groups find alternative means to achieve the ends they currently seek violently.  There are, in other words, important unintended consequences to the law and to the subsequent decision on its constitutionality.

The main danger for scholars is the vagueness of both the law and the court’s decision.  Insofar as academic research tends to stay within the academy, it’s highly unlikely that a terrorism scholar will be prosecuted for buying a cup of tea for an interview subject on the FTO.  But to the extent that scholarship makes it up to the levels of policy debate – which is partly the point of government programs such as the Minerva initiative, as well as foundation and university initiatives such as the Bridging the Gap program – these laws make conducting research on terrorism and insurgency even riskier than it already is.

— Cross-posted from The Monkey Cage