Sahar F. Aziz (Tex. Wesleyan U. School of Law) has posted Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities. The abstract follows.

The laws that prohibit providing material support to terrorism are the linchpin of the preventive counterterrorism paradigm. These laws are often the fall-back criminal provisions employed when the government cannot prove terrorism charges. But they are so broad and vaguely worded that they effectively criminalize a myriad of activities that would otherwise be constitutionally protected. Moreover, as the government is not statutorily required to prove that the defendant had a specific intent to support terrorism, it has carte blanche to prosecute a broad range of legitimate activities, such as charitable giving, peace building, and human rights advocacy. The Department of Justice, with the Supreme Court’s blessing, has consequently criminalized training and advocacy in support of nonviolence on the justification that such activities legitimize a designated group or individual. The government’s standards for what it deems as “legitimizing” are so broad that then- Solicitor General Elena Kagan went so far as to call for prosecuting lawyers for filing an amicus brief on behalf of a terrorist organization.

Similarly, humanitarian aid delivered to noncombatant civilians living under the control of a terrorist organization can be illegal based upon the unproven theory that it frees up resources to redirect toward violence. This untenable theory of liability, also known as the “fungibility” doctrine punitively denies many innocent beneficiaries abroad of food, water, and shelter. But for their misfortune of being trapped in a conflict zone where one party is designated as terrorist, these civilians would have received much-needed aid from American civil society. Furthermore, Muslim American charities providing the humanitarian aid are punished through government-led smear campaigns and prosecutions.

With few exceptions, the executive branch has exercised its broad discretion to selectively target Muslim charities engaged in seemingly legitimate humanitarian aid. The result is a serious chilling effect on Muslim communities’ willingness to openly partake in political dissent and for Muslim charities to effectively provide international aid using religiously mandated charitable donations.

Since 9/11, Muslim donors have been scared to make such contributions because they fear prosecution for providing material support to terrorism even though they do not intend to support terrorism. They also fear that their donations will invite government scrutiny and harassment in the form of tax audits, immigration checks, requests for voluntary FBI interviews, inclusion on watch lists, and surveillance. Indeed, donations to Muslim charities fell precipitously in the years immediately following 9/11. As law enforcement increasingly questions Muslims about such donations during voluntary interviews, immigration benefit proceedings, and at the border, this chilling effect is magnified. Ten years after 9/11, many Muslim charities still struggle to return to pre-9/11 donation levels.