In 2014 the FBI arrested nine young Minnesotan men for plotting to join ISIS in Syria. Six of them pleaded guilty, while a jury in Minneapolis found the other three guilty following trials. These are not isolated cases in the United States. On the contrary, the media are increasingly reporting similar stories. In 2014, the FBI arrested three teen siblings at the Chicago International airport when they were about to board on a flight to Turkey with the goal of joining the Islamic State. Similarly, in 2015 two young Mississippi fiancées were arrested at a Mississippi airport on their way to Syria for the same purpose. The young woman, 20 years of age chemistry sophomore at Mississippi State University, former cheerleader and honor student, recently pleaded guilty.
The most commonly charged offense in these cases is conspiracy to provide material support to ISIS. The offence is found at the federal level in § 2339B of title 18 of the US Code (Providing material support or resources to designated foreign terrorist organizations). It punishes with imprisonment up to 20 years and a fine of up to $250,000 “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so.”
The Commentary to §2M5.3 of the Federal Sentencing Guidelines Manual indicates for this offense a Base Offense Level of 26 triggering, with a criminal history score of between 0 or 1 (Criminal History Category I), a recommended custodial sentence between 63 and 78 months. Furthermore, in material support cases terrorism enhancement under §3A1.4 is generally added, which increases the Base Offense Level by 12 points and the Criminal History Category up to VI. This way, the applicable sentence would jump to a range between 360 months to life in prison. Yet, §5G1.1(a) intervenes to “mitigate” by stating: “Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.” As a result, courts should impose the statutory maximum (i.e., 20 years) as the recommended sentence. (It must be noted that often in the exercise of their discretion, prosecutors charge the same defendant with conspiring and attempting to support a designated foreign terrorist organization, thus bringing the potentially maximum sentence to a total of 40 years).
Conspiracy to provide material support in violation of Section 2339B is the agreement to provide such support. However, while the support need only be planned and not actually delivered, conspiracy to provide material support carries the same penalties as if the offense was completed. As to the “material support or resources” for purposes of Section 2339B, in all recently reported cases the young people trying to join ISIS represented the only support to be provided to the terrorist group. No currency or monetary instruments, no lethal substances, weapons or false documentation were involved. In this regard, the category to be used is that of “personnel,” which may include the charged person herself.
Between September 1, 2001 and December 31, 2011 494 people were convicted for terrorism-related offenses. 96 percent of the 48 people convicted only of Providing Material Support to Designated Terrorist Organizations (18 U.S.C. § 2339B) were given prison sentences averaging 87 months. Of those, 15 percent were given the then-maximum 15-year sentence.
Since its enactment in 1996 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), section 2339B was intended to represent the primary tool to incapacitate highly dangerous individuals with the ability and skills to provide substantial support to listed terrorist organizations. Profiles the drafters had primarily in mind were international arms traffickers, document forgers, money launderers, as well as people mastering weapon and guerilla-like skills—all categories of individuals able to significantly contribute to keep a terrorist group or organization in business and thrive.
Since ISIS took the stage and became the main global terrorist organization, the number of foreign fighters—individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology and religion—has grown exponentially. In a 2015 testimony before Congress, Gen. James Clapper, the director of national intelligence, estimated at roughly 180 the number of U.S. citizens who have traveled or attempted to travel to Syria to fight for ISIS or ISIS-related factions. Without a doubt, ISIS broke new ground in the way they proved able to utilize social media and the Internet to reach out and recruit young people in Western countries.
Previously, cases like that of John Phillip Walker Lindh—a U.S. citizen who was captured as an enemy combatant in 2001 during the war in Afghanistan—were deemed rare and exceptional. In fact, the 2002 Lindh case was the first one in which a federal court ruled, with precedential status, that it is possible to indict someone under § 2339B based on the theory that the accused was attempting to provide “personnel” (his or her own body) to a foreign terrorist organization (United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002)).
While Section 2339B was rarely used before 9/11, it is now proving very important to decrease the growth in ISIS membership. At the same time, from a sentencing perspective the draconian prison terms triggered by the charge raise serious ‘just desert’ concerns when confronted by the inherent harm caused or threatened by the actual conduct.
Section 2339B was drafted having in mind individuals able to give a substantial contribution to a certain terrorist groups for the skills they have or the money they can provide. However, cases like the ones previously mentioned do not deal with inherently dangerous individuals to be incapacitate at all costs. Rather, they concerns young people that often times merely plotted to join ISIS having no money, connections, training, or skills to offer to the self-proclaimed Caliphate. In other words, they are only potentially dangerous individuals, caught more than once after having a few exchanges on social media with undercover agents testing their willingness to actually leave for Syria. Put differently, the threatened harm is even more remote than the one envisioned by the drafters of the statutory provision.
It seems very unlikely that prosecutors will become more selective in bringing charges in this kind of situation, primarily in order not to undermine the general deterrent effect of such prosecutions. As far as fact-finding is concerned, it appears very easy for prosecutors to prove the existence of the very few and tenuous elements of the conspiracy to provide material support to a terrorist group or organization.
In such a scenario, courts will play a major role in the evaluation of pleas reached by the parties, and in the exercise of their sentencing powers in case of trial. The sentencing stages of the criminal justice process will ultimately tell whether or not in cases like those of young ‘wannabe terrorists’ the principle of proportionality of the punitive response still has a role to play in the context of the hyper-preventive approach to the war on terror.
Andrew Ashworth and Lucia Zedner, Preventive Justice (2014).
Center on Law and Security, NYU School of Law, Terrorist Trial Report Card: September 11, 2001 – September 11, 2011 (2011), http://www.lawandsecurity.org/portals/0/documents/ttrc%20ten%20year%20issue.pdf
Robert M. Chesney, Federal Prosecution of Terrorism-Related Offenses: Conviction and Sentencing Data of the “Soft-Sentence” and “Data-Reliability” Critiques, 11 Lewis & Clark L. Rev. 837 (2007).
Fabio Fasani, Terrorismo islamico e diritto penale (2016).
Nicole Hong, ‘Material Support’ Statute Is Front and Center in Antiterror Push, The Wall Street Journal, May 27, 2015, http://www.wsj.com/articles/material-support-statute-is-front-and-center-in-antiterror-push-1432719002.
Human Rights Watch, Illusion of Justice Human Rights Abuses in US Terrorism Prosecutions (July 21, 2014), https://www.hrw.org/report/2014/07/21/illusion-justice/human-rights-abuses-us-terrorism-prosecutions.
Peter Margulies, Material Support of Terrorism: Tool for Public Safety or Recipe for Overreaching?, in National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers 243 (2012).
Wadie E. Said, Sentencing Terrorist Crimes, 75 Ohio St. L.J. 477 (2014).
Wadie E. Said, The Material Support Prosecution and Foreign Policy, 86 Ind. L. J. 543 (2011).
Lucia Zedner, Terrorizing Criminal Law, 8 Crim. Law & Philos. 99 (2014).