The rise of homegrown terrorism presents distinct challenges for prosecutors and policymakers. Headlines are riddled with stories of American teenagers posting messages of support for the Islamic State on social media, some even going as far as to travel to Europe or the Middle East in attempts to join the terrorist group. Given the youth of many of these individuals, concerns arise regarding how to best prosecute them.
For Hamzah Khan, a 19-year-old Chicagoan who was arrested with his two siblings at O’Hare International Airport as he attempted to board a plane to Istanbul, prosecutors elected to use the material support statute, 18 U.S.C. § 2339(b). This statute prohibits providing material support or resources to a foreign terrorist organization, and the individual must have knowledge that the organization is a designated terrorist organization or that it engages in terrorism as defined by 18 U.SC. § 140(d)(2). It is alleged that Khan “knowingly attempted to provide material support and resources” – in the form of personnel – to a foreign terrorist organization. Khan’s attorney argues that individuals like his client do not fit any acceptable criminal justice definition of a terrorist, and that youths like Khan are becoming pawns in the political rhetoric surrounding the war on terror. But the case against Hamzah Khan is, in many ways, one of the most clear-cut of the ISIS recruit cases because Khan took actual steps, in the form of purchasing the plane tickets, towards joining ISIS. Because the possibility of recruitment itself is not an element of the material support statute, the question becomes one of line-drawing: What level of support or action is necessary for an individual to be liable under the material support statute?
The material support statute has always presented demarcation issues, but the growth of social media creates additional challenges because prosecutors must balance concerns relating to both freedom of speech and freedom of religion in ways that prior cases did not contemplate. Many of the material support decisions deal directly with purchasing or providing a tangible item – the crux of the legal issue was not speech or recruitment. See, e.g., United States v. Al Kassar, 660 F.3d 108 (2d Cir. 2011). In U.S. v. Cromitie, 272 F.3d 194 (2d Cir. 2013), the defendant participated in the FBI informant’s discussion about acquiring missiles and bombs, making statements indicating he would “take . . . down” “a whole synagogue of men.” While the defendant in Cromitie demonstrated a willingness to coordinate a legitimate attack, something not present in the case of the Khan siblings, the fear of escalation from social media messaging to action is legitimate. Assistant Attorney General John Carlin recently expressed concerns about the possibility of escalation from social media posts to plotting attacks on American soil: “[A]s we disrupt travel and make it harder for potential ISIL recruits in this country to get to Syria and Iraq, ISIL adapts, increasingly encouraging individuals in the West to conduct terrorist attacks at home. No passport or travel required.” But because the material support statute contains no mens rea requirement, to criminalize such ‘encouragement’ raises concerns about criminalizing an individual’s thoughts or even religious beliefs.
For many teenagers, social media posts serve as an important form of self-expression, but for Mariyam Khan, Hamzah Khan’s sister, joining a hashtag campaign for a Muslim prisoner and retweeting photos of victims of violence in the Middle East serve as evidence of her intent to leave the United States and join ISIS. While it seems unlikely that these messages alone could ever be the sole basis for prosecution under the material support statute, the potential that they could serve as the basis for a law enforcement investigation conjures up memories of the Red Scare and the overzealous use of the Smith Act to criminalize those espousing leftist ideologies.
This concern is exacerbated by the fact that ISIS’ messaging to fellow Muslims is not centered on the violent acts ISIS commits. Abu Bakr al-Baghdadi issued a direct call to all Muslims to help build a new Islamic State – a message that is much more attractive and positive than the negative message sent by Al Qaeda, which hinged on committing suicide bombings and other terrorist acts. ISIS’ message can be summarized as, “Come and help us build you a new state . . . a Sunni political utopia . . . that will protect every single Muslim . . . ” This messaging is attractive to Muslim-American teenagers because, in the words of Omer Mozaffar, an Islamic scholar at Loyola University in Chicago, “[i]f you’re a Muslim-American teenager, America has been at war with the Muslims for as long as you’ve been conscious.” But because the messaging is less violent, it is inherently more aligned with the kinds of statements that could be seen as religious speech. This facet of ISIS’ messaging creates First Amendment concerns beyond those present in prior material support cases.
The fact that Mariyam Khan has not yet been charged with a crime speaks to the difficulties of these cases. Yet Khan’s initiation of communication with a well-known Somali-American jihadi should be as concerning as Cromitie’s nonchalant attitude toward his acquaintance’s plans to commit jihad. Although Cromitie had actually established a plan to commit an attack, the informant initiated this action, whereas Khan’s radicalization was a product of her own initiative. While entrapment doctrine is well-developed and can curb concerns relating to cases like Cromitie’s, the same cannot be said for material support cases like Khan’s.