Al Qaeda and the Advent of Multinational Terrorism:
Why "Material Support" Prosecutions Are Key In the War on Terrorism

By PHILLIP CARTER
Wednesday, Mar. 12, 2003

Recently, the U.S. government has invoked the material support statute to go after those who are alleged to have funded terrorist organizations. For instance, former Florida professor Sami Al-Arian is the subject of such a prosecution. So is Enaam Arnaout, who pled guilty to a single count of racketeering connected to sending money to terrorists. And so is Earnest James Ujaama, indicted last year for conspiring to aid Al Qaeda in Oregon with various forms of logistical support.

In addition, federal authorities have targeted several charities, including the Holy Land Foundation and Benevolence International Fund, for allegedly aiding Al Qaeda in the United States.

Critics have suggested that the war on terrorism ought to be conducted without such prosecutions, on the grounds that they violate freedom of religion and freedom of speech. Such arguments have not fared well in court, however: When John Walker Lindh attempted to make such an argument, U.S. District Judge T.S. Ellis III held that material support to terrorism did not qualify for First Amendment protection.

Critics have also argued that such prosecutions are unfair, and tangential to the war on terrorism - for their subjects are merely "small fish." But the operational reality is very different - and prosecutions like these are crucially necessary.

Taking down the financial, logistical, immigration and communications infrastructure of terrorism is as important as throwing the actual terrorists in jail. After all, this infrastructure is what sets Al Qaeda apart from its predecessors like Islamic Jihad. The financial and logistical enablers prosecuted under the "material support" statute give Al Qaeda its international capability to conduct terror operations.

Conceptually, it's useful to imagine Al Qaeda as a multinational corporation - one in which the operations, logistics, and financial cells are all interlinked and interdependent. American counter-terrorism strategies target each cell with different tactics. Together, these strategies make up a coherent overarching plan to prevent Al Qaeda from attacking the U.S. again.

Key among these strategies is one based on initiating "material support" prosecutions. As those who devised this strategy recognize, Al Qaeda would be a local organization of thugs but for its global financial and logistical capability. Prosecutions under the material support statute attack the parts of Al Qaeda that give the terror network its global reach.

A Brief History of International Terrorism

Terrorism - defined as violent action against civilians to achieve political ends - is hardly a new phenomenon. According to legend, Greek warriors used the fabled "Trojan Horse" to enter Troy and kill its occupants, an early act of terrorism. The sacking of Rome by the Visigoths also qualifies as terrorism. Ever since then, belligerents have employed terrorism and guerilla warfare when necessary and expedient. Generally, such tactics have worked.

Modern terrorism emerged during World War II and its immediate aftermath. Allied and Axis powers alike used unconventional warfare to achieve military objectives; for instance, the Allies used partisans to harass German forces in occupied Yugoslavia. Many future revolutionaries - including Mao Zedong and Ho Chi Minh - learned their craft during World War II.

After the war, the use of violence to achieve political ends continued around the world, including in the Middle East. Israeli revolutionaries used bombings to achieve political ends; the 1946 bombing of the King David Hotel, where British troops had made their headquarters, is one example. After Israel won its independence, both sides continued the use of bombings, ambushes, and assassinations.

In the 1960s and 1970s, terrorists around the world shared a number of common characteristics - whether they lived in Europe, Asia or the Middle East. Groups like the Red Army Faction and Irish Republican Army operated within certain boundaries. They hit military and political targets when they had the opportunity to do so, and generally abstained from civilian casualties for political reasons, knowing such deaths would hurt the way they were perceived. These groups remained fairly localized, and though some tried, they never managed to create a transnational terrorist coalition of the sort we see today.

Recent History: The Advent of Al Qaeda

In the 1990s, however, that changed. A confluence of factors, from the end of the Cold War to deepening global interdependence, triggered a paradigm shift in the form terrorism took. Previously-local terrorist groups now spread their wings and acquired a global reach, taking advantage of lowered international barriers to communication, money-transfer, and human movement.

Foremost among these groups was a band of so-called "Afghan Arabs" known as Al Qaeda. The exact details of Al Qaeda's birth remain murky. We know it formed initially as a loose band of insurgents during the Soviet invasion of Afghanistan, and that it was jointly sponsored by the United States and Pakistan. Al Qaeda became known as the "Afghan Arabs" because they included fighters from many other countries - Saudi Arabia, Pakistan, Egypt, Chechnya, and more - and because they were united under a common leader: Osama Bin Laden.

Bin Laden brought more than charismatic leadership to the organization, though his valor in combat against the Soviets still remains lore among the fighters. He also brought organizational and financial talents from his time running the Bin Laden construction business in Saudi Arabia, as well as hundreds of millions of dollars. After beating the Soviets in 1988, Bin Laden decided to continue his war for Islam where he could.

Al Qaeda started as a small band of guerillas in the mountains of Afghanistan. It slowly grew, as Bin Laden established operations in various countries. Al Qaeda didn't just export terror cells (many of which were, for security reasons, insulated from one another). It also established charities, hospitals, schools, and "consulates" of sorts in various countries around the Middle East and Africa. Al Qaeda built strategic alliances with financial institutions, charities, and other organizations around the globe, from Bosnia to the Philippines.

Soon, Al Qaeda had a global network that resembled that of a modern multinational corporation. It had the capability to move money, material and men into nearly any country it desired, either for charitable or terroristic purposes (or for purposes of terrorism guised as charity). Some of this was clearly legitimate; Al Qaeda established schools and health clinics in places like Bosnia and Chechnya the way that Hamas did in the Palestinian territories. However, these ventures also masked Al Qaeda's illicit activity, sometimes to the point where the two were indistinguishable.

Starting in the mid-1990s, Al Qaeda used this capability to attack American and Western targets. In 1996, Al Qaeda bombed the Khobar Towers in Saudi Arabia, killing 19 servicemen. In August 1998, it bombed two U.S. embassies in Africa.

All of these attacks shared some common features. They relied heavily on the presence of Al Qaeda sympathizers in the attacked country, who were needed to facilitate immigration, safe houses and logistics. They depended on the "hawala" financial system, which is an informal version of Western Union, in which merchants around the world act as intermediaries for money transfers. And these attacks utilized modern telecommunications - including cellular phones and Internet e-mail - for command and control.

This sophistication would eventually become Al Qaeda's signature. It would enable Al Qaeda to launch increasingly audacious attacks - up to and including the attacks of September 11, 2001.

Today's Al Qaeda - Still A Global Terror Network, Though a More Diffuse One

In 2001, Al Qaeda was plenty dangerous, as the attacks evidenced. Today, the organization has become more decentralized, more networked, and more global as a result of America's successful campaign in Afghanistan. Al Qaeda has responded to the loss of their Afghan sanctuary by becoming even more amorphous and difficult to track down.

That said, the organization still relies on some of the same financial, communications and logistical enablers. In military parlance, these are the organization's "centers of gravity." If the U.S. can successfully deny Al Qaeda the use of its global infrastructure, then it will be able to reduce the organization to a heavily armed - but local - band of insurgents.

One major facet of this global network is its emigration/immigration capability. Al Qaeda has developed an unprecedented ability to move people around the world. This is largely accomplished through Al Qaeda's networks of supporters in foreign countries, who arrange immigration, travel, housing, and other logistical details.

Key Al Qaeda Enablers: Global Internet Capacities, Global Money Movement

Once its operatives have successfully been placed abroad, Al Qaeda uses various types of electronic communications to maintain command and control over them. Here, the organization has benefited tremendously from the spread of the Internet and its relatively diffuse structure.

With easily available encryption and spoofing (electronic concealment of Internet addresses) techniques, Al Qaeda operatives can send encrypted e-mail from hidden locations on the Internet to and from their commanders in the Middle East. Even with sophisticated Internet surveillance systems such as Carnivore, U.S. authorities have little hope of sorting through the vast amounts of e-mail sent every day, to find the few notes sent by terrorists.

Meanwhile, by far the most important part of Al Qaeda's infrastructure is its ability to move money around the world. This capability includes much more than the ancient hawala network.

Early in its history, Al Qaeda built strategic relationships with legitimate financial institutions in nations like Kuwait, Saudi Arabia and Sudan. Today, these banks have acted as the gateway for Al Qaeda to the world's financial system, enabling the group's members to transfer money around the world - money that goes towards purchasing weapons and supporting their global operations. Many of these financial channels have been shut down by aggressive enforcement after September 11, but some remain.

How Al Qaeda Hides Behind Legitimate Businesses and Charities

In addition to this financial-services network, Al Qaeda also retains a network of "legitimate" businesses and charities that it can use to move money, men and materiel around the world. For instance, as noted above, the federal government has targeted the Holy Land Foundation and Benevolence International Fund for allegedly "fronting" for Al Qaeda.

Mostly, these groups do charitable work as the benevolent arm of the Al Qaeda operation. They finance schools, public health efforts, and other things designed to boost Al Qaeda's political capital and create a recruiting base for the organization. That's only half the story, however.

Federal authorities allege that these charities also raise money and funnel it back to Al Qaeda, in much the same way that the Irish Republican Army used to raise money in Boston for its operations in Ireland.

Such charities also allegedly use their legitimate financial accounts and relationships to move Al Qaeda money, as well as personnel and equipment, around the world. One well-known example is the use of Muslim charities to move partisan fighters and weapons into Bosnia-Herzegovina to fight the Serbs between 1992-1995.

Why "Material Support" Prosecutions Are A Key Part of Anti-Al Qaeda Strategy

One of the most controversial aspects of the U.S.'s strategy to stop Al Qaeda has been the effort to take down its support network in the United States. The strategy is twofold: First, it seeks to designate appropriate organizations as "terrorist" and list them as such. Second, it aims to prosecute those who support such organizations - financially, logistically, or otherwise. There are three basic legal sources for such power: FTO designations, "terrorist financier" designations, and "material support" prosecutions.

For some time, the State Department has had the authority to designate "foreign terrorist organizations." An FTO designation means, among other things, that it is criminal to provide the designated organization with material support. An FTO designation must be based on three State Department findings:

First, the State Department must find that the group is foreign. Second, it must find that the organization engages in "terrorist activity" as defined in the Immigration and Nationality Act. (The USA PATRIOT Act both enlarged the definition of "terrorist activity" and provided more legal consequences for the FTO designation. Third, that it must find that the organization's activity threatens national security or the personal security of U.S. citizens.

The Immigration and Nationality Act provides for judicial review of the FTO designation by the U.S. Court of Appeals for the D.C. Circuit. Generally, the D.C. Circuit has upheld the designations. However, on at least one occasion - in the 2001 case of National Council of Resistance of Iran v. Department of State - the Circuit remanded the FTO designation back to the State Department so that additional procedures could occur.

Meanwhile, under Executive Order 13224, the State Department can additionally, or alternatively, designate organizations as "terrorist financiers." This enables the U.S. government to seize these groups' assets and criminally prosecute individuals associated with the groups. Most recently, this tool has been used to designate the Benevolence International Foundation, seize its assets, and imprison one of its key officials.

Finally, there is a pair of federal laws that prohibit providing "material support" to terrorists, and to foreign terrorist organizations, respectively. This pair of laws was originally enacted in the mid-1990s. In October 2001, it was amended by the USA PATRIOT Act in October 2001. To date, the Justice Department has brought charges under these laws in several high-profile cases, including those of Earnest James Ujaama and Sami Al-Arian.

Fighting An Amorphous Enemy Means Using Multiple Tactics

Some have argued that these prosecutions are a diversion and distraction from the real task of prosecuting terrorists. They could not be more wrong. Assuming the government's allegations against them are accurate, men like Ujaama, Arnaout and Al-Arian are as important to terror networks as the men who actually carry out terror attacks - perhaps even more so. Without such individuals raising money, arranging immigration, and providing other forms of support, the terrorists in Al Qaeda could not conduct the kind of operation we saw on September 11.

America faces a dangerously amorphous adversary in Al Qaeda. Defeating this enemy will require more than a head-on military strategy, or a crime-busting legal strategy. Instead, it requires a subtle combination of both - and it requires prosecutions not only of terrorists, but of those who fund them. We must analyze Al Qaeda to find its most vulnerable parts, and then attack those parts relentlessly using every tool at America's disposal - cutting each of the heads off the Hydra, and making sure it never re-grows.

To ultimately prevail, the United States must attack every part of the Al Qaeda organization - especially its global infrastructure that enables it to strike across borders and oceans. Those who knowingly support that infrastructure are more than merely innocent individuals who gave money to the wrong cause - "small fish" caught in a big net. They are as much the authors of terrorism as those who do the bombing and the killing, and they are rightfully prosecuted as such.


Phillip Carter is a former Army officer who currently attends UCLA Law School and writes on legal and military affairs.

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