WASHINGTON – More and more, the charge of choice for prosecutors in the war on terrorism is that someone provided material support (search) to terror groups, a count defense lawyers and at least one federal judge say can give the government far too much latitude to pursue a case.
Accused British arms trafficker Hemant Lakhani (search) joins a long list of defendants to face the charge since the Sept. 11 terror attacks. Lakhani was arrested in New Jersey and charged Wednesday with providing material support in an alleged missile-smuggling plot.
Prosecutors say the law, passed by Congress in 1996 and updated in 2001 by the USA Patriot Act (search), is critical in stopping terrorists and their supporters before they act.
"You don't have to wait until the fuse is being lit," said Michael Chertoff, former head of the Justice Department's criminal division and now a federal appeals court judge. "If that were the standard, a lot of bombs would go off and a lot of people would lose their lives."
Defense lawyers counter that the law is so vague, people could be charged with a felony carrying a maximum penalty of 15 years and fines up to $250,000 for such things as writing a check to a charity with hidden links to terror groups.
"If you cast too wide a net and you don't use appropriate discretion to limit these prosecutions, you risk ensnaring innocent people and you demean the entire process of prosecuting terror," said Neal Sonnett, a Miami attorney who is past president of the National Association of Criminal Defense Lawyers.
Rodney Peronius, a Buffalo, N.Y., lawyer who defended one of the members of the "Lackawanna Six" alleged terror cell, said the potential penalties force many suspects to seek plea bargains.
"If you go to trial and lose, you're going to be looking at the maximum," he said.
The law makes it a felony crime to provide "material support or resources" to a foreign terrorist organization. Included in the definition are such obvious things as providing weapons, false identification, safehouses, "lethal substances," money and financial services.
But the law also makes it a crime to supply such things as personnel, transportation and "other physical assets." Some experts say those provisions are far too murky. U.S. District Judge John G. Koeltl of New York agreed recently.
Last month Koeltl dismissed two charges against Lynne Stewart (search), a defense attorney for imprisoned terror leader Sheik Omar Abdel-Rahman (search), on grounds that prosecutors used the material support law in an unconstitutionally vague way.
Stewart, who still faces fraud and false statement charges, was accused of using her phone to deliver messages for Abdel-Rahman, who is serving a life sentence for conspiring to blow up the World Trade Center towers and other New York landmarks in 1993 and to assassinate Egyptian President Hosni Mubarak.
Koeltl found the government had essentially tried, using several different legal theories, to criminalize the use of Stewart's phone.
"A criminal defendant simply could not be expected to know that the conduct alleged was prohibited," Koeltl wrote.
Material support charges were not used frequently until recently. The government's first major use of the law came in 2000, when 18 people were charged in North Carolina with running a cigarette smuggling operation whose proceeds benefited the Hezbollah terror organization in Lebanon.
In the Lackawanna cases, the government obtained guilty pleas from six of the men charged, with a seventh still being sought. Material support in these cases included activities such as attending an Al Qaeda training camp in Afghanistan and purchasing a uniform.
Material support charges also have been brought against defendants in Detroit, Seattle, Portland, Ore., New York and elsewhere.
To the Justice Department, the law is having its intended effect.
Attorney General John Ashcroft recently quoted from a statement to an FBI informant from an alleged member of a suspected terrorist cell in Oregon, Jeffrey Battle, about the law. Battle is accused of attempting to travel to Afghanistan to fight with the Taliban against the United States.
In the statement, Battle said that "everybody's scared" to give support, such as buying airplane tickets for people involved with or supportive of terrorists.
"By me going and me fighting and doing that, they can by this new law, they can come and take you and put you in jail," Battle said, according to the document.