Agents of the Enemy: Targeting “Lone Wolf” Terrorism Under the Material Support Statutes

Samuel E. Chestna*

Two prominent anti-terrorism statutes, 18 U.S.C. §§  2333 and 2339B, prohibit the provision of material support to anyone who is part of a Foreign Terrorist Organization (FTO).  Both statutes have a broad scope, holding individuals and entities liable for knowingly providing material support to an FTO, regardless of intent to contribute to the FTO’s terrorist activities.  For this reason, the material support statutes have come under scholarly criticism for imposing guilt by association.  Additionally complicating matters is the lack of any statutory criteria for determining who should be considered part of an FTO for the purposes of §§ 2333 and 2339B.  As a result, the law is ambiguous regarding whether “lone wolf” terrorists, who purport to be acting on behalf of an FTO, count as members of that organization, and whether individuals or entities that provide support to lone wolves can be held liable under the existing material support laws.  This Note examines the limited case law addressing the issue and analyzes three proposed tests for determining membership in an FTO, concluding that all three current proposals are inadequate.  It then examines analogous legal doctrines in both domestic and international law which could guide future courts in answering the FTO membership question.  It concludes by suggesting that courts should draw from both the domestic and international realm to craft a new, four-part test for determining which individuals should be regarded as part of an FTO

*  Notes Editor, Columbia Journal of Transnational Law; J.D., Columbia Law School, 2023.  Thank you to Professor Michel Paradis for his invaluable guidance and mentorship throughout the process of writing this Note.  I am also grateful to the hardworking staff of the Columbia Journal of Transnational Law for their editorial assistance.  Finally, thank you to my parents and to my fiancée, Jess, for their love and support.