Refugees at Risk: The Impact of the Material Support Bar on Refugees Who Seek Asylum in the U.S.

Birdsong oversaw quite a bit of student research on refugee problems last semester. The following paper by my student Shamir Patel is quite interesting and valuable to read to learn how the “Material Support Bar” works to the detriment of many seeking asyum in the United States.

Read and learn.

Refugees at Risk—The Impact of the Material Support Bar

on Refugees Who Seek Asylum in the United States

Shamir J. Patel

“The present interpretation of the material support bar has effectively altered U.S. policy so that refugees and asylum seekers who have suffered at the hands of terrorists and despotic regimes are now no longer welcome to the U.S. as our friends.”

—Letter to President Bush from leaders of faith-based communities including the National Association of Evangelical Churches, the Southern Baptist Ethics & Religious Liberty Commission, and the U.S. Conference of Catholic Bishops[1]I. INTRODUCTION

The United States has a long history of providing safe haven to refugees escaping political oppression and religious persecution in their homelands.[2] But thousands of vulnerable refugees have been prevented from receiving the protection of this country due to the overly broad immigration law definitions contained in USA PATRIOT Act and the REAL ID Act of 2005.[3]

These provisions bar from asylum or resettlement anyone who has provided what the law terms “material support” to “terrorist organizations.”[4] The definitions of these terms in the immigration laws, however, and their application by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) are so exceedingly broad that the bar is tragically affecting refugees who do not support terrorism at all.[5]

These refugees include women who were raped and enslaved by armed militias in Liberia; victims of extortion forced to pay armed terrorists in Colombia to protect their lives and their children; and Cubans who supported a group that took up arms against Fidel Castro in the 1960’s. [6]

II. BACKGROUND

Eighteen U.S.C. § 2339B (the material support statute) prohibits the provision of material support to designated foreign terrorist organizations.[7] The statute was originally enacted as part of the Anti-Terrorism and Effective Death Penalty Act of 1996, and was intended to combat terrorist financing and support in the United States.[8]

This section provides a legal analysis of the material support bar. It demonstrates the breadth of the law as written and applied.

Legal Analysis of Material Support Provision

The material support immigration bar has been part of the Immigration and Nationality Act (INA) since 1990.[9] However, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005 significantly broadened the scope of the material support bar by expanding the definition of “terrorist activity” and “terrorist organization,” relaxing the bar’s mens rea requirement[10] and limiting the availability of discretionary waivers.[11] The current material support provision renders any alien ineligible for entry into the United States if she has committed “an act that the actor knows, or reasonably should know, affords material support (1) for the commission of a terrorist act; (2) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;” or (3) to a designated or non-designated terrorist organization.[12]

1. Definition of Material Support

The current provision of the U.S. Code defining material support does not circumscribe the types of support prohibited.[13] The list of goods and services that are barred is non-exhaustive; there are no limiting principles, and the bar offers no exceptions for the involuntary provision of support.

The material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), states that material support includes the provision of a “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training.”[14] U.S. courts have held that “material support” includes other types of support not enumerated in the provision.[15] In Singh-Kaur v. Ashcroft, the court found that providing food and setting up tents for a religious congregation, which may have included members of the religion’s militant sect, constituted material support to a terrorist organization.[16]

Likewise, DHS has construed the term broadly such that even nominal support is per se material. DHS argued before the Board of Immigration Appeals (BIA) and the Third Circuit Court of Appeals that Congress did not intend for the material support provision to include a de minimis exception, but rather that “material support” is a legal term of art that means any support, no matter how insignificant.[17] The Singh-Kaur court adopted a broad definition of “support,” agreeing with DHS that no de minimis exception applied.[18] The court in Arias v. Gonzales found that material support included a farmer’s payment of his employer’s vacuna to the FARC, even though the money did not belong to the farmer.[19]

DHS and some immigration judges have refused to recognize any duress defense to the material support bar, even in the most extreme cases of threats of imminent bodily harm. In the asylum case In the Matter of R.K., immigration judge Tadal declined to recognize a defense of involuntariness where a Sri Lankan refugee was kidnapped by the Liberation Tigers of Tamil Eelam (LTTE) and forced to pay 50,000 rupees for his release.[20] In the resettlement case of a Liberian woman attacked by rebels from the Liberians United for Reconciliation and Democracy (LURD) who killed her father, gang-raped her, abducted her, and held her against her will, DHS deferred her case on material support grounds.[21] DHS claimed that she provided material support while she was held hostage by LURD rebels for several weeks and forced to perform tasks such as washing the rebels’ clothing.[22] DHS’s failure to apply a duress exception has prevented the resettlement of thousands of victims of terrorism.

1. Definition of a Terrorist Organization

The term “terrorist organization” has an expansive meaning in the context of the material support provision. Under the definition of “terrorist organization,” an individual who gave support to virtually any armed group can be excluded from entry to the United States, whether or not the group was previously designated a terrorist organization. If an organization is not already designated as a terrorist organization, the material support bar allows DHS adjudicators and immigration judges to evaluate whether an organization qualifies as a non-designated Tier III terrorist organization.[23]

Designated terrorist organizations recognized by the material support bar include organizations designated by the Secretary of State through a process laid out in 8 U.S.C. § 1189[24] and organizations “otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in” certain enumerated terrorist activities.[25]

Under the expanded material support bar, a non-designated group of people can be considered a terrorist organization if it is “two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” terrorist activities.[26]

The definition of “terrorist organization” is based on whether illegal violence was used, not on the character of the organization, the nature of the conflict, or the type of government in question.[27] Therefore, the term can apply equally to organizations that the U.S. government opposes and supports. For example, according to DHS, an asylum seeker who provided support to Afghanistan’s Northern Alliance in the 1990s would be barred from entry even though the Northern Alliance was fighting the Taliban government, a regime the U.S. government considered illegitimate.[28] DHS has also recently put on hold the resettlement cases of 147 Cubans who provided support to the Alzados, an armed group that fought against Fidel Castro in Cuba in the 1960s.[29] Similarly, it applies to nationals of Burma (Myanmar) who work with pro-democracy organizations that the United States supports.[30] These refugees are predominately from the Karen ethnic minority who provided indirect support to the Karen National Union, a political and armed group resisting Myanmar’s repressive military regime.[31] The definition of “terrorist organization” is so broad that it would even apply to U.S. military activity abroad, with the U.S. military constituting a “Tier III terrorist organization.”[32]

The statute defines terrorist activities so broadly that a group becomes a non-designated terrorist organization if it consists of more than one person who performs any one of the enumerated terrorist activities, and “material support” is an enumerated terrorist activity. This means that a restaurant in which two or more employees have served beer to members of the FARC could very well constitute a “terrorist organization,” and consequently, all of the customers of the restaurant could be considered to have “engaged in the terrorist activities” because they provided support to the restaurant “terrorist organization.” Moreover, any other individual who then provides support to any one of the restaurant customers, and who is aware that the customer eats at the restaurant, could be considered to have provided material support to an individual who they know has committed a terrorist activity, potentially ad infinitum.

Note, however, that an individual is not barred from entry for providing material support to a non-designated organization if the individual “can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.”[33] It is the refugee’s burden to prove that she “should not reasonably have known” that she had provided material support to a terrorist organization as defined by the statute. This exception for lack of knowledge—the mens rea requirement—is potentially very arduous for refugees to demonstrate. This is a difficult burden given the lack of available evidence generally and the difficulty in substantiating a prior mindset. This defense, moreover, is not available to individuals who provide support to designated “terrorist organizations.”[34] Individuals who provide support to organizations designated as terrorist by the U.S. government are irrevocably presumed to have knowledge that the provision of support to the organization was prohibited under U.S. law.[35]

1. Discretion to Waive the Material Support Bar

There is a waiver provision in the material support bar that would conceivably permit the U.S. government to grant resettlement to refugees who have provided material support where that is deemed necessary or desirable.[36] However, the construction of the waiver provision makes it unlikely that it can be exercised in a meaningful way.[37]

Under Section 1182(a)(3)(B)(i) of the U.S. Code, the Secretary of the Department of Homeland Security and the Secretary of State have discretion to decide to not apply the material support bar.[38] The waiver grants discretionary authority to the Secretary of the Department of Homeland Security and the Secretary of State, after consultation with each other and the Attorney General to “not apply [the bar] with respect to any material support an alien afforded to an organization or individual that has engaged in a terrorist activity.”[39] Likewise, the Secretary of the Department of Homeland Security and the Secretary of State, after consultation with each other and the Attorney General, may determine that a non-designated organization shall not be considered a “terrorist organization” “solely by virtue of having a subgroup” that fits the “terrorist organization” definition.[40]

This structure of the provision seems to indicate that all three executive departments need to be in agreement before a material support waiver is applied. This would be both a heavy burden and administratively difficult to apply. Moreover, the statute does not indicate if and how the authority to exercise discretion might be delegated, and the relevant executive departments have issued no guidance on how the authority should be used.

1. Application to Asylum and Withholding of Removal

The material support bar also applies to individuals who apply for asylum or withholding of removal—the two ways that refugees already in the United States can seek protection from deportation. Under the asylum provision, any alien who is ineligible for entry to the United States under the terrorism provision of Section 1182(a)(3) is also ineligible for asylum.[41] Similarly, a refugee is not eligible for withholding of removal if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.”[42] As the bar is currently applied, an individual who has provided material support, as broadly defined, “shall be considered an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.”[43]

There are currently 512 asylum cases on indefinite hold at the Asylum Office because of material support concerns. In many of these cases, asylum seekers have been held in limbo for years, unable to present their cases to an immigration judge.[44] For example, Binob, a Nepalese political activist, was threatened by Maoist rebels who demanded that Binob join their movement and surrender money. When Binob refused, the Maoists beat him until he surrendered all his money, and then released him, warning him that if he did not give more money within the month, the Maoists would kill him and his wife. Binob fled to the United States, where he applied for asylum in 2002, but his attorney was told that his case was “on review” at DHS headquarters, where it has languished for three years since.[45]

Material Support Provision before the PATRIOT Act

The material support provision was established by Congress in 1996 as part of a revamping of terrorism laws in response to the bombing of the federal building in Oklahoma City.[46] It was meant to provide the Department of Justice a means with which to file criminal charges against those who supplied money, weapons, or other tangible goods to groups on the State Department’s list of terrorist organizations. The original penalty was five years in prison.

Material Support Provision after the Patriot Act

The PATRIOT Act (in § 805) broadened the scope of the law by expanding the definition of what constitutes material support to include “expert advice or assistance” to terrorist organizations. For instance, creating a Web site for a charity that is later charged with laundering money for a terrorist group could result in charges against the designer. The penalty also was increased to a maximum sentence of life in prison if the support could be linked to loss of life.

In 2005, the REAL ID Act expanded the definition of these terrorist organizations to cover any group that has a subgroup that uses weapons.

Under INA § 212(a)(3)(B)(vi), unless an alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization, they will otherwise fall within this exception. A terrorist organization is a group of two or more individuals, whether organized or not, who engage in the activities described in sub clause (I) through (VI) of the INA § 212.

United States Resettlement Program

In 2002, the United Nations High Commissioner for Refugees in Ecuador and the U.S. State Department’s Bureau of Population, Refugees, and Migration (PRM) sought to address the growing refugee crisis by starting a pilot program to resettle Colombian refugees who faced continuing security risks in Ecuador to the United States.[47] When the program first began, there were high hopes for its future. In 2003, UNHCR referred sixty-four percent of its cases (87 of 137 cases) to the United States—a total of 287 Colombian refugees.[48] In the beginning of 2004, the U.S. resettlement program continued to grow.[49] Through September 2004, UNHCR referred a total of 288 Colombian refugees to the United States.[50] PRM anticipated several hundred additional Colombian refugee referrals in FY2004.[51]

In late 2004, however, the program began to face obstacles under U.S. law. Initially, a number of Colombian refugees were denied resettlement because DHS had determined that they were firmly resettled in Ecuador.[52] Under U.S. law, a person is not eligible for refugee status in the United States if that person has been firmly resettled in another country.[53] A person is considered firmly resettled if she has been offered resident status, citizenship, or some other type of permanent residence in a country other than the United States.[54] The U.S. Citizenship and Immigration Services (USCIS) Guidelines on Firm Resettlement require that a refugee demonstrate a continuing fear of persecution in the country of asylum in order to be eligible for resettlement.[55]

III. HARMING VICTIMS WHILE HELPING TERRORISTS?

Problem # 1: Terrorism Definitions Commingle Refugees with Terrorists

Under the definition of “terrorist organization,” an individual who gave support to virtually any armed group can be excluded from entry to the United States, whether or not the group was previously designated a terrorist organization.[56] If an organization is not already designated as a terrorist organization, the material support bar allows DHS adjudicators and immigration judges to evaluate whether an organization qualifies as a non-designated Tier III terrorist organization.[57] DHS asserts that Congress intended the material support inadmissibility ground “to be able to capture all potential forms [of] terrorist activity and material support to terrorist activity.”[58] But the law makes no substantive distinction between actual “terrorist organizations,” such as Al-Qaeda, and organizations struggling against repressive regimes for democracy or liberation, such as the Burmese Chin National Front.[59]

The absurd results of such an expansive definition of a “terrorist organization” do not end there.[63] The definition of terrorist organization is so broad that it would even apply to U.S. military activity abroad. DHS recently admitted in oral argument before the Board of Immigration Appeals (BIA) that the Iraqi national who provided information to the U.S. Marines who rescued American soldier Jessica Lynch would be barred from entry under this law.[64] Under the current definition of “terrorist organization,” the U.S. Marines would qualify as a Tier III terrorist organization because their activity was unlawful during the U.S. occupation of Iraq under Iraqi law and they were fighting against an established government.[65]

Problem # 2: Material Support Provided under Duress

The material support bar provides no explicit defense for duress.[66] In the asylum context, DHS argues, and some courts have agreed, that a duress exception should not be read into the statute. In In the Matter of R.K., immigration judge Tadal did not recognize a defense of involuntariness for a Sri Lankan refugee who was kidnapped by the Liberation Tigers of Tamil Eelam (LTTE) and forced to pay 50,000 rupees for his release.[67]

In the overseas refugee resettlement context, DHS does not apply an exception for duress or involuntary support, causing an outright bar to resettlement for thousands of victims of terrorism. DHS has denied resettlement to UNHCR-recognized refugees who have been brutalized by armed groups and forced to provide funds, goods, or services. A woman gang-raped, abducted, and held hostage by rebels of the Liberians United for Reconciliation and Democracy (LURD) was forced to perform a variety of household tasks, including cooking and laundry. DHS has placed her resettlement case on indefinite hold because the Department considers the laundry and cooking services that she provided “material support to a terrorist organization.”[68] In another case, rebels attacked the house of a Sierra Leonean woman, brutally killed one family member and burned another, and subsequently raped the woman and her daughter. The rebels held the family captive for four days in the family’s own home. DHS has placed the woman’s case on indefinite hold, alleging that the shelter that she “provided” to the Sierra Leonean rebels constitutes “material support” to a terrorist organization.[69] Despite their victimization by terrorist groups, U.S. law considers these women to have “engaged in terrorist activity.”[70]

For many Colombian refugees, compliance with the demands of armed groups was viewed as undesirable, but resistance often resulted in severe consequences.[71] Without a duress exception, the material support bar implies that civilians should allow themselves to be killed or jeopardize the lives of their family members rather than comply with the demands of a controlling terrorist organization.[72] This is a particularly shocking proposition in the Colombian context.[73] More often than not, when a Colombian refugee gave material support, it was under duress and part and parcel of their persecution by terrorist groups.[74]

In the asylum context, interpretations of the material support bar that do not apply a duress defense violate the principle of customary international law and the U.S. treaty obligation of non-refoulement of refugees who have entered the United States under Article 33 of the 1951 Convention.[75] Under Article 33, the United States cannot expel or return a refugee to face persecution unless there are “reasonable grounds for regarding [the refugee] as a danger to the security of the [United States]” and the refugee “constitutes a danger to the community of [the United States].”[76] Applying the material support bar to refugees who provided support to terrorists under duress is inconsistent with the United States’ binding obligations under Article 33. Providing “material support” at gunpoint or under the threat of death does not make a refugee a danger to the security of the United States.[77]

Problem 3: Material Support Includes Immaterial Support

The current law does not explicitly account for the amount and nature of the support given when determining whether an individual provided “material support” or include an explicit exception for de minimis support.[78] The Department of Justice has argued that it was “Congress’s intent that the material support provision be broadly construed and strictly applied.”[79] Further, DHS construes “material support” as though all support, no matter now nominal, is per se “material.” DHS counsel argued before the BIA and the U.S. Court of Appeals for the Third Circuit that Congress intended “material support” as a legal term of art that means any support, no matter how insignificant.[80] As such, the DHS interpretation effectively reads the word “material” out of the provision and concludes that even a contribution of five dollars is “material support.”[81]

In Singh-Kaur v. Ashcroft, the Third Circuit agreed with DHS and adopted a broad definition of “support.”[82] The court found that providing food and setting up tents for a religious congregation, which may have included members of the religion’s militant sect, constituted material support.[83] An interpretation of the material support bar that does not imply a de minimis exception plainly violates international law and U.S. obligations under the 1951 Refugee Convention as incorporated under the 1967 Protocol.[84] Even though providing funds to a “terrorist group” is a criminal offense under international law, according to UNHCR, an individual should not be found guilty of engaging in terrorist activity or a “serious non-political crime”—a bar to refugee protection under the 1951 Convention—“if the amounts concerned are small and given on a sporadic basis.”[85] By not applying a de minimis exception, DHS and U.S. courts are failing to limit the material support bar to actual terrorists and their supporters. Instead, they extend the material support bar to innocent civilians in war-torn regions throughout the world who are often forced to pay negligible “war taxes” in currency or goods to rebel or terrorist groups.[86]

IV. UNINTENDED CONSEQUENCES OF THE MATERIAL SUPPORT BAR

The material support bar has crippled the U.S. resettlement program, a unique private-public partnership through which local communities and church groups across the country assist in welcoming refugees.[87] Thousands of refugees have been prevented from resettling in safety in the United States because of these statutory provisions.

Congress intended the immigration law provisions of the PATRIOT Act and the REAL ID Act to bar from asylum or other relief those who truly mean to provide aid to actual terrorist organizations. Congress clearly did not intend to penalize the victims of terrorists.[88] Yet the literal language of these definitions are so broad that groups can be labeled as “terrorist organizations” simply because they have used armed force against the armies of Saddam Hussein or the Burmese military regime.[89]

Here in the United States, the Department of Homeland Security has put an indefinite hold on the cases of at least 565 asylum seekers because the cases involve the issue of material support.[90]

Victims of the FARC Rebels in Columbia

Miguel was kidnapped by marauding paramilitaries on a killing spree and forced to dig graves for the victims of their slaughter.[91] Other gravediggers were sometimes shot by the paramilitaries and buried in the graves they had just dug.[92] Miguel never knew whether the grave he was digging would become his own.[93] Diana was forced to provide ski-masks and scarves to the paramilitaries before they gang-raped her and set a ferocious dog on her, while Juan, a refrigerator repairman, was taken to a guerilla encampment and forced to repair their appliances.[94] Miguel, Diana, and Juan, who fled Colombia to Ecuador to escape their persecutors, are designated refugees by the United Nations High Commissioner for Refugees (UNHCR). They are all awaiting resettlement to a safe third country because they face serious risk of continued persecution in Ecuador by Colombian armed groups.

Before 2004, Miguel, Diana, and Juan would have been eligible for refugee resettlement in the United States. Today, they are not. Since the enactment of anti-terrorism legislation and its application in 2004 by the Department of Homeland Security (DHS) to overseas refugee resettlement, bona fide refugees from war-torn regions like Colombia are barred from U.S. protection.

Anti-terrorism legislation adopted under the USA PATRIOT Act of 2001[95] and the REAL ID Act of 2005[96] amended section 212 of the Immigration and Nationality Act (INA) to widely expand the class of individuals considered inadmissible to the United States for having “engaged in terrorist activity,” including by providing “material support” to “terrorists” or “terrorist organizations.”[97] The collection of amended terrorism provisions in the INA creates the grounds for inadmissibility that this report refers to as the “material support bar.”[98] Because of its overbroad language and lack of a duress exception, the material support bar has already prevented thousands of refugees from obtaining asylum relief or resettlement in the United States.[99] Although this legislation may have imposed a formidable barrier on the ability of terrorists to pose as refugees, it has also had the perverse effect of shutting the door on thousands of meritorious refugees who are the victims of terrorism.[100] In effect, the United States has foreclosed entry for those individuals who have suffered at the hands of the very terrorist groups it seeks to target.[101]

In the Colombian context, the application of the material support bar to meritorious refugees is inhumane and counterproductive to U.S. interests.[102] The material support bar is written and applied as a catchall that effectively excludes any individual who ever provided goods, services, or funds to an armed group from U.S. refugee protection, even if they are victims of the groups they supposedly “support.”[103] There are two principal problems with the material support bar as applied to the Colombian context.[104] First, as in the case of Miguel, there is no explicit duress defense available in situations where “material support” was provided under the threat of harm.[105] Second, “support” is broadly defined with no exception for minimal levels of support.[106] As a result, DHS interprets “material” support to include even insignificant amounts of support.[107]

In Colombia, for example, where the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army (ELN), and the United Self-Defense Forces of Colombia (AUC) control or contest seventy-five percent of Colombian territory, minimal levels of support to these groups, often provided under duress, is routine.[108] In many rural Colombian contexts, support in the form of “war taxes” or the provision of food or shelter is necessary for survival.[109] Refusing to comply with the material demands of the guerillas or paramilitaries can result in death. UNHCR estimates that between seventy and eighty percent of Colombian refugees seeking asylum in Ecuador are ineligible for resettlement in the United States because they have provided some form of material support to these irregular armed groups, as broadly defined.[110]

School Teacher from Burma

An elementary school teacher from Burma permitted two men wearing plain clothes to speak about democracy at her school.[111] The men wearing plain clothes were from the Chin National Front (CNF). [112] The men stayed at the school for two nights while they addressed the village, and the teacher and the other villagers gave the speakers food and shelter.[113] The Burmese military retaliated by burning down the teacher’s home and beating him so severely that he fell unconscious.[114] The teacher was eventually able to escape from Burma, and he sought refuge in the United States. [115]

The Department of Homeland Security argued that by feeding the three speakers and letting them sleep at the school, the teacher had provided material support to a terrorist organization.[116] The teacher has currently awaiting review by the Board of Immigration Appeals (BIA), and since Congress has intended the material support bar so broadly, it would be difficult for any judge to conclude that this was not what Congress intended.[117]

Nurse from Colombia

A nurse from Colombia who was kidnapped and assaulted by Revolutionary Armed Forces of Colombia (FARC) had her asylum request rejected by the United States.[118] The FARC had forced her to give medical treatment to their members. Seeking refuge, she fled with her young daughter to the United States.[119] The Department of Homeland Security denied her asylum claims on grounds that she gave aid to a terrorist organization giving rise to material support of a terrorist organization under Congress broad definitions. Her request for asylum is now pending before the BIA.[120]

V. CONSTITUTIONAL CHALLENGES TO THE MATERIAL SUPPORT BAR

On December 7, 2001, the Secretary of State designated by publication in the Federal Register 39 entities as “terrorist organizations” pursuant to the new procedures under Section 411(a)(B)(vi). The Federal Register notice does not mention INA § 219, leading to the conclusion that the designations are based on INA § 212(a)(3)(B)(vi)(II). The statutory requirement has been satisfied because the classified and or unclassified information available to the Secretary of State contains findings that the named groups have committed, or have provided material support to further terrorist acts.[121]

Six organizations and two U.S. citizens, seeking to provide support to the humanitarian and political activities of two organizations designated by the Secretary of State as foreign terrorist organizations under the AEDPA, challenged those designations as being un-constitutional.[122] The Court concluded that (1) the enactment of the AEDPA was within the constitutional power of the government; (2) the AEDPA furthers the government’s substantial interest in national security and foreign relations; (3) the government’s interest in prohibiting contribution for political and humanitarian activities to the designated organizations was not related to the suppression of the plaintiffs’ political speech or advocacy of the political agenda of those organizations; (4) the AEDPA restricts the plaintiffs’ right to political association and expression no more than is essential to further its compelling interest in national security and foreign policy; and (5) based on the foregoing, the plaintiffs failed to demonstrate a likelihood of success on the merits of their claim that the AEDPA’s prohibition of all contributions to the organizations in question despite the plaintiffs’ lack of specific intent to further illegal activities was an impermissible restriction on their First Amendment freedoms.[123]

The Court also concluded that the plaintiffs failed to establish a probability of success on their claims that the AEDPA affords the Secretary of State unfettered discretion, or that it is impermissibly vague because it grants the Secretary unfettered discretion; however, the Court did conclude that the plaintiffs did demonstrate probable success on the merits and irreparable injury based on their claim regarding § 303 of the AEDPA, which provides that “whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to the foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than ten years, or both,” and defines the term “material support or resources” as “currency or other financial securities, financial services, lodging, training, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious material.”[124]

The Ninth Circuit Court of Appeals affirmed the decisions of the District Court and held: (1) the provisions at issue did not impose guilt by association; (2) the provisions were narrowly tailored under the First Amendment; (3) the provisions did not give the Secretary of State unfettered discretion to limit the plaintiffs’ right to associate with foreign organizations; and (4) the terms “training” and “personnel” were unconstitutionally vague.[125]

VI. POSSIBLE LEGAL ARGUMENTS

For this section, I will create a hypothetical situation based on a missionary in Colombia and act as her defense team and try to break down her situation with regards to all the material support laws.

Hypothetical: The Colombian Helper

Jane Reyes is a foreign national from Colombia. Ms. Reyes is a full-time Christian missionary who preaches to and tries to convert Colombian people, including FARC rebels. Not all of the rebels she speaks with convert to Christianity, and soon the leaders of these rebels find out what is going on and try to have Ms. Reyes killed. After receiving death threats from rebel leaders at her home, she flees to the United States and applies for asylum. Asylum is denied on the grounds that Ms. Reyes materially supported a terrorist group and therefore cannot be granted asylum within the United States.

a. Whether Jane Reyes Materially Supported the FARC Rebels?

According to the U.S.C § 2339A, material support means any property, tangible or intangible, or services, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, and transportation, except medicine and religious material. The INA § 212(A)(3)(B)(vi) states that, “unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization,” they will otherwise fall within this exception.

Last year, Congress passed a law that was supposed to clarify the intent needed to prosecute for “material support.” Under § 6603 of the Intelligence Reform and Terrorism Prevention Act of 2004, the government must prove that assistance was provided knowing that the organization had been designated as a “foreign terrorist organization” or that the organization had been involved in international terrorism.

Opposing council/government will focus in on the word “lodging” within U.S.C. § 2339A and the fact that Jane knew that these were FARC rebels, thus satisfying INA Act § 212(A)(3)(B)(vi). The Department of Homeland Security began using § 212(A)(3)(B)(i) of the Act in earnest in 2003 and 2004. The REAL ID Act’s expansion of these terror-related grounds has also resulted in increased use of these provisions. Not only does the definition of a terrorist organization now include undesignated terrorist organizations, but under § 212(a)(3)(B)(vi)(III), a terrorist organization is simply defined as any group of two or more individuals, organized or not, who engage in any of the “terrorist activities” listed under § 212(a)(3)(B)(iv). This expansion has created serious problems for asylum applicants where the basis for the asylum claim was assisting rebel groups.

Ms. Reyes’ defense team will have to argue that material support implicitly includes an intent requirement because there is no knowledge requirement and Jane Reyes did not have the requisite intent. The opposing council/government may then argue that the statute does not have a specific mens rea analysis and try to disregard this. Ms. Reyes will have to counter this by stating that material support within criminal law is something that is substantial and by applying the same standards to what Jane, her actions were not substantial (the criminal law material support definition was updated at the same time as the PATRIOT Act was published).

As a final effort, Ms. Reyes can try to portray herself as a humanitarian and her missionary group as an organization. It can be argued that material support laws do not appear, as a practical matter, to allow humanitarian organizations to provide vital resources to people living under FARC control or those FARC rebels who would like to change, because such resources generally cannot be provided without providing “material support.” As the currently written law defines material support, it encompasses much of what is needed for humanitarian relief work, including food, forms of shelter, and many other materials needed to detach from a terrorist organization. Because the law makes no distinction between lethal aid and non-lethal aid, a missionary seeking to help FARC rebels change their ways and start to live a law-abiding life may be violating the material support laws of the United States. As a result, qualified individuals who have the ability to convert terrorists in a non-lethal way will fear doing so.

Finally, Ms. Reyes must argue that change is of critical importance. The law will soon provide an extremely broad definition of what constitutes a terrorist organization—a definition that will include groups that engage in absolutely no violent activities of any kind. Such expansion must be accompanied by a corresponding narrowing in the definition of what constitutes material support if we are to prevent our laws from prohibiting entirely innocent and vitally important missionary and humanitarian activity.

VII. CONCLUSION AND RECCOMENDATIONS

The United States should bring its laws and administrative procedures into line with the Refugee Convention and the U.S. tradition of extending protection to those who flee from prosecution. Both Congress and the current administration need to act immediately.

Georgetown University Law Case Study[126]

In order to prevent meritorious refugees fleeing persecution from suffering the effects of the material support bar, the Georgetown University Law Center Fact-Finding Group recommends that Congress urgently amend the material support bar to:

1. Establish an involuntary support exception for those who provided “support” under explicit or implicit duress. Where terrorist groups operate, people are often forced to provide goods or services through threats, intimidation, and violence. There is no statutory duress exception to the material support bar.

2. Provide a de minimis exception for those who provided insignificant “support.” Under the current interpretation, there are no exceptions for levels of support too small to be material support to terrorist activity. This interpretation reads the word “material” out of “material support.”

3. Require the U.S. government to certify an organization as a “terrorist organization” before an individual can be barred for providing “material support” to that group.

4. Provide a time bar exception for support provided before the age of consent or many years prior to the application for resettlement.

Further, the Georgetown Group[127] recommends that the Department of Homeland Security create guidelines that:

1. Interpret the material support bar to include exceptions for involuntary support and de minimis support, a requirement that terrorist organizations be certified, and a time bar.

2. Explicitly exempt individuals who inadvertently provided material support to a designated or non-designated terrorist organization, with neither knowledge nor intention to support an armed group.

Finally, the Georgetown Group recommends that the Secretary of the Department of Homeland Security, the Secretary of State, and the Attorney General appropriately delegate their authority to waive the material support bar in cases where it should not apply. The waiver provision in the material support bar is currently impracticable.[128]

Interview with Bill Frelick, Director of Amnesty International USA’s Refugee Program

Georgetown Law University student R. Brent Wisner recently interviewed Bill Frelick on his views on the material support bar and its effects today on refugees.[129] All answers below are quoted directly from Bill Frelick.

a. What do asylum seekers have to worry about today that they did not have to worry about before 9-11?

The PATRIOT Act and the REAL ID Act in particular changed the definition of terrorist activities, terrorist organizations, and what it means to provide material support. The new definition basically allows the United States to deny asylum to anyone it chooses under the proviso of national security, and in the process there are a lot of babies being thrown out with the bath water. Many innocent people who are victims of terrorism rather than members of terrorist organizations are being denied asylum because of the threats perpetrated on these asylum seekers by organizations on the Foreign Terrorist Organizations List.

b. What is the solution to fixing these material support issues?

Changing the law is fundamentally the solution. It is a bad law. Whatever the court decisions, whatever, administrative waivers, let’s just change the law. Congress needs to take the final step to fix this. With the definition of terrorism being indistinguishable from most other armed opposition to any authority, and the material support bar itself having such broad ramifications, the material support statute absolutely needs to be tightened to identify people who really do pose a threat. Possibly changing the definition of “material” to mean support “material to the commission of the terrorist act,” or adding “willingly” to the provision to make an exemption for situations of duress. It would be also helpful to clarify that terrorist activities must threaten the U.S. or U.S. nationals, as it is overly broad to include any established opposition to any established authority in any country anywhere in the world. The law is so broad that it is simply dangerous.

Recommendations

Congress should clarify the overly broad immigration law definitions contained in the USA PATRIOT Act and the REAL ID Act to ensure that refugees who have fled oppression and terror and who pose no threat to the security of the United States can receive this country’s protection. These changes would not alter criminal or other liability for those who intentionally and voluntarily provide material support to terrorist organizations.

The Department of Homeland Security, Department of State, and Department of Justice should implement a series of administrative measures to ensure that refugees who are victims of terrorism and oppression are not barred from asylum or resettlement in this country.

Both Congress and the current administration should recognize that duress is an implicit defense to the material support provisions of the immigration laws. This recognition will ensure that qualified refugees who are the victims of coercion can be granted asylum or resettlement in the United States. The law provides an extremely broad definition of what constitutes a terrorist organization—a definition that will include groups that engage in absolutely no violent activities of any kind. Such expansion must be accompanied by a corresponding narrowing in the definition of what constitutes material support if we are to prevent our laws from prohibiting entirely innocent and vitally important missionary and humanitarian activity.

[1] Letter to President George W. Bush, dated August 24, 2006, from the following faith-based communities and individuals: American Values, Becket Fund for Religious Liberty, Center for Religious Freedom, Freedom House, Christian Freedom International, Church World Service, Concerned Women for America, Episcopal Church, Ethics and Public Policy Center, Hudson Institute, Institute on Religion and Democracy, Institute on Religion and Public Policy, International Christian Concern, Jesuit Conference USA, Jubilee Campaign USA, Leadership Council for Human Rights, Ministerial Alliance of Midland, Texas, National Association of Evangelicals, National Council of Churches of Christ, North American Religious Liberty Association, Religious Action Center of Reform Judaism, Religious Freedom Coalition, Southern Baptist Ethics & Religious Liberty Commission, U.S. Conference of Catholic Bishops’ Committee on Migration, United Methodist Church, We Care America, and World Evangelical Alliance, available at https://www.refugeecouncilusa.org/ms-sgnltr-faithorgbush8-24-06.pdf (accessed September 20, 2006).

[2] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[3] Id.

[4] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[5] Id.

[6] Id.

[7] 18 U.S.C. § 2339B (2000).

[8] Pub. L. No. 104-32, 110 Stat. 1214.

[9] Immigration Act of 1990, P.L. 101-649, 1990, Title VI, § 601; 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[10] Id.

[11] 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[12] Id.

[13] Id.

[14] Id.

[15] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3rd Cir. 2004)..

[16] Id.

[17] Transcript of Oral Argument at 20, In re Ma San Kywe, U.S. Department of Justice, Executive Office for Immigration Review, United States Immigration Court, Jan. 26, 2006 (on file with author); Brief for Respondent, Arias v. Gonzales, 143 F.App’x 464 (3d Cir. 2005).

[18] Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[19] Arias v. Gonzales, 143 F.App’x. 464 (3d Cir. 2005).

[20] In the Matter of R.K., Oral Opinion, Judge Mirlande Tadal, United States Immigration Court, Elizabeth, New Jersey (May 9, 2005) (on file with author). Just months later, in the asylum case of a Nepali government employee and medical aide who was kidnapped and forced at gunpoint to treat wounded Maoist combatants, the immigration judge ruled that a defense of duress does apply to the material support to terrorism bars to asylum and withholding of removal. The case, however, is now on appeal to the BIA. See e-mail from Counsel for Respondent Brian D. O’Neill, Summarizing Oral Opinion of Judge Daniel L. Meisner, Immigration Court, Newark, New Jersey on October 21, 2005 (on file with author); see also Susan Benesch and Devon Chaffee, The Ever-Expanding Material Support Bar, 83 INTERPRETER RELEASES 465, 468 (Mar. 13, 2006).

[21] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), Case Summaries (on file with author).

[22] Id.

[23] Id.

[24] Id.

[25] 8 U.S.C. § 1182(a)(3)(B)(vi)(I) (2005).

[26] 8 U.S.C. § 1182(a)(3)(B)(vi)(II) (2005).

[27] See INA § 212(a)(3)(B); 8 U.S.C. § 1182(a)(3)(B).

[28] See Rachel L. Swarns, Provision of Antiterror Law Delays Entry of Refugees, N.Y. TIMES (Mar. 8, 2006).

[29] Id.

[30] See, generally, Human Rights Program, Harvard Law School, Preliminary Findings and Conclusions on the Material Support for Terrorism Bar as Applied to the Overseas Resettlement of Refugees from Burma (Feb. 2006).

[31] Id.

[32] DHS recently admitted in oral argument before the Board of Immigration Appeals (BIA) that the Iraqi national who provided information to the U.S. Marines who rescued U.S. soldier Jessica Lynch would be barred from entry under this law. Under the current definition of “terrorist organization,” the U.S. Marines would qualify as a Tier III terrorist organization because their activity was unlawful during the U.S. occupation of Iraq under Iraqi law and they were fighting against an established government. Transcript of oral argument at 24-35, In re Ma San Kywe, U.S. Department of Justice, Executive Office for Immigration Review, United States Immigration Court, Jan 26, 2006 (on file with author).

[33] Id.

[34] See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) (2005).

[35] Id.

[36] 8 U.S.C. § 1182(d)(3)(B)(i) (2005).

[37] The only instance in which a waiver has ever been granted was for Burmese refugees stranded in Thailand. Exercise of Authority under Sec. 212(d)(3)(B)(i) Secretary of State Condoleeza Rice, May 3, 2006, available at https://www.rcusa.org/ms-inapplic.pdf; U.S. Department of State, Fact Sheet: Secretary Decides “Material Support” Bar Inapplicable To Ethnic Karen Refugees in Tham Hin Camp, Thailand, May 5, 2006, available at https://www.rcusa.org/ms-dos-fctsht-karen5-6-06.pdf; U.S. Department of State, Office of the Spokesman, The Department of State Decides Material Support Inapplicable to Second Group of Karen Refugees in Thailand (Aug. 30, 2006), available at https:// www.rcusa.org/ms-thamhin-prdos8-30-06.pdf. DHS barred the Burmese refugees’ entry into the U.S. because their provision of support to pro-democracy groups in Burma constituted “material support” to a “terrorist organization.” Note that the situation of the 9,500 Burmese at the Tham Hin refugee camp in Thailand was especially urgent, yet no workable solution materialized for at least eighteen months after DHS blocked the resettlement. See Human Rights Program, Harvard Law School, Preliminary Findings and Conclusions on the Material Support for Terrorism Bar as Applied to the Overseas Resettlement of Refugees From Burma, 8 (Feb. 2006).

[38] 8 U.S.C. § 1182(d)(3)(B)(i) (2005). Before the REAL ID Act was passed, the Secretary of Homeland Security and the Attorney General, in consultation with each other, held discretionary power. See REAL ID Act, supra note 7, at Div. B §§ 104.

[39] 8 U.S.C. § 1182(d)(3)(B) (2005).

[40] Id.

[41] See 8 U.S.C. § 1158(b)(2) (2005). 8 U.S.C. § 1158(b)(2) states that the asylum provisions shall not apply to any alien described in 8 U.S.C. § 1227(a)(4)(B). The provision referenced, 8 U.S.C. § 1227(a)(4)(B), states “[a]ny alien who is described in subparagraph (B) … of § 1182(a)(3) of this title [the terrorism bar to admissibility] is deportable.”

[42] 8 U.S.C. § 1231(a)(3)(B)(iv) (2005).

[43] See 8 U.S.C. § 1231(a)(3)(B)(iv). This provision states that an alien described in 8 U.S.C.S. § 1227(a)(4)(B) is deportable. The provision referenced, 8 U.S.C.S. § 1227(a)(4)(B), states “[a]ny alien who is described in subparagraph (B) … of § 1182(a)(3) of this title [the terrorism bar to admissibility] is deportable.”

[44] See USCIS Headquarters Asylum Meeting with Community-Based Organizations (Nov. 8, 2005). USCIS “stated that eighty percent of the cases on hold are from Nepal, India, Sri Lanka, and Colombia.” See Melanie Nezer, The ‘Material Support’ Problem: An Uncertain Future for Thousands of Refugees and Asylum Seekers, 10-24 BENDER’S IMMIGRATION BULLETIN 2 (2005).

[45] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[46] 18 U.S.C. § 2339A.

[47] Bureau of Population, Refugees, and Migration (PRM), U.S. Department of State, Refugee Admissions Program for Latin America and the Caribbean (Nov. 2002), available at www.state.gov/g/prm/rls/fs/15498.htm.

[48] UNHCR-Ecuador, Resettlement Unit Report, Unit for the Analysis of Cases with Special Protection Needs, Jan. 2006, at 2 (on file with author).

[49] Id.

[50] Id.

[51] U.S. Department of State, Bureau of Population, Refugees and Migration, Fact Sheet: Refugee Admissions Program for Latin America and the Caribbean (January 16, 2004), available at https://www.state.gov/g/prm/rls/fs/2004/28211.htm.

[52] 8 C.F.R. § 208.15; U.S. Citizenship and Immigration Services (USCIS), Eligibility: Who May Apply to Be Resettled in the United States as a Refugee? (Jan. 20, 2006), available at https://uscis.gov/graphics/howdoi/RefElig.htm; See interview with Walter Sánchez, Resettlement Officer, UNHCR-Ecuador, in Quito, Ecuador (Mar. 2006).

[53] Id.

[54] See Id.

[55] Interview with Walter Sánchez, Resettlement Officer, UNHCR-Ecuador, in Quito, Ecuador (Mar. 2006).

[56] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[57] Id.

[58] In re Ma San Kywe, Oral Argument Transcript, Board of Immigration Appeals (BIA) (Jan. 26, 2006) at 25 (on file with author).

[59] See Id.

[60] See INA § 212(a)(3)(B); 8 USC § 1182(a)(3)(B); see e.g., In re Ma San Kywe, oral argument.

[61] See Id. at 22.

[62] See Rachel L. Swarns, “Provision of Antiterror Law Delays Entry of Refugees,” New York Times (Mar. 8, 2006) at A20.

[63] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[64] In re Ma San Kywe, oral argument at 25.

[65] See Id. at 24-25; INA § 212(a)(3)(B)(vi)(III); 8 USC § 1182(a)(3)(B)(vi)(III).

[66] The lack of a duress defense in this context can be contrasted with the well-established duress defense in U.S. criminal law. In the criminal context, an individual forced to give money or goods to an armed group would be considered a victim of criminal extortion, not a participant in the crime under U.S. criminal law. See MODEL PENAL CODE § 2.09(1) (defining duress as “an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist”); Joshua Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching for its Proper Limits, 62 S. CAL. L. REV. 1331, 1343 (1989) (stating that “[t]hirteen states have adopted in whole or in substantial part the definition of duress framed by the American Law Institute (ALI) in the MPC”); see, e.g., United States v. Bailey, 444 U.S. 394, 409, 411 n.8 (1980) (finding that under the common law, duress “excuse[s] criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which threat caused the actor to engage in conduct violating the literal terms of the criminal law” and “duress excuses criminal conduct…‘because given the circumstances other reasonable men must concede that they too would not have been able to act otherwise”’).

[67] In the Matter of R.K., oral opinion, Judge Mirlande Tadal, United States Immigration Court, Elizabeth, New Jersey (May 9, 2005) (on file with author).

[68] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), case summaries (on file with author); see also Editorial, Terrorists or Victims? N.Y. TIMES, April 3, 2006, at A16.

[69] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), case summaries (on file with author).

[70] 8 U.S.C. §1182(a)(3)(B)(iv)(VI) (2005).

[71] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[72] Id.

[73] Id.

[74] Id.

[75] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[76] Id.

[77] Id.

[78] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[79] Letter to the Honorable Marcia M. Waldron of the United States Court of Appeals for the Third Circuit Re: Amaya Arias v. Gonzales, No. 04-1999, from Lyle D. Jentzer, Trial Attorney, Office of Immigration Litigation, Civil Division, Dep’t of Justice (June 21, 2005) (on file with author).

[80] See In re Ma San Kywe, oral argument at 20; Brief for Respondent, Walter Antonio Amaya Arias v. John Ashcroft, No. 04-1999.

[81] In re Ma San Kywe, oral argument at 20.

[82] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[83] Id.

[84] Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

[85] UNHCR, Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees (Sept. 4, 2003) at ¶ 82; see also Kolude Doherty, Regional Representative for the U.S. and the Caribbean, UNHCR Response to Mr. Edward Neufville re: Request for Advisory Opinion (June 15, 2005) (on file with author).

[86] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[87] https://www.acf.hhs.gov/programs/orr/

[88] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[89] Id.

[90] Refugee Council USA, U.S. Refugee Admission Program for Fiscal Year 2006 and 2007: The Impact of the Material Support Bar

[91] 37 Geo. J. Int’l L. 759.

[92] Interview with “Miguel,” Colombian Refugee EMSA-05 (Mar. 2006) (on file with author).

[93] Id.

[94] Interview with “Diana,” Colombian Refugee SA-01 (Mar. 2006) (on file with author). Interview with “Juan,” Colombian Refugee EMSA-01 (Mar. 2006) (on file with author).

[95] The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act, Pub. L. No. 107-56, 115 Stat. 272 (2001) [hereinafter USA PATRIOT Act].

[96] The REAL ID Act, Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005).

[97] See INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (2005).

[98] 37 Geo. J. Int’l L. 759.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[108] See Brief of Amicus Curiae Human Rights First in Support of Petitioner at 6-7, Amaya Arias v. Ashcroft, 143 F.App’x. 464 (3d Cir. 2005) (citing UNHCR Working Paper, Protecting Colombian Refugees in the Andean Region: The Fight Against Invisibility, Mar. 2003, at 5), available at https:// www.humanrightsfirst.org/asylum/pdf/Brf-Ams-Cre-Walter-Amaya-Arias.pdf.

[109] In Colombia, a “war tax” is known as a vacuna (literally, “vaccine”) because it provides inoculation from guerilla or paramilitary attacks.

[110] See interview with Walter Sánchez, Resettlement Officer, UNHCR-Ecuador, in Quito, Ecuador (Mar. 2006); UNHCR-Ecuador, Resettlement Unit Report, Unit for the Analysis of Cases with Special Protection Needs, Jan. 2006, at 2.

[111] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] 66 Fed. Reg. 63620 (Dec 7, 2001).

[122] People’s Mojahedin Organization of Iran v. U.S. Dept. of State, 182 F.3d 17 (D.C. Cir. 1999).

[123] Humanitarian Law Project v. Reno, 9 F. Supp 2d 1176, 1205, (C.D> Cal. 1998), judgment aff’d, 205 F.3d 1130 (9th Cir. 2000)

[124] Id.

[125] Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000).

[126] The following report is a product of a fact-finding mission to Ecuador taken by a group of Georgetown University Law Center students in March 2006. The students examined the effects of a change in U.S. law on the resettlement of Colombian refugees from Ecuador to third countries. Upon their return, they advocated within Congress to amend the material support bar to asylum and refugee resettlement. An Appendix to this report contains summaries of interviews conducted by the group, all of which are on file with the authors.

[127] Jennie Pasquarella and recent graduates of Georgetown University Law Center (GULC). A group of GULC students undertook a ten-day fact-finding investigation in Ecuador in March 2006 to interview Colombian refugees barred from resettlement in the United States because of the material support bar. This article benefits from the tireless research of group members Shaina Aber, Devon Chaffee, Mia Cohen, Edward Dougherty, Mark Fleming, Emi MacLean, Elizabeth Matos, Rebecca Schaeffer, Jeffrey Smith, Tom Smith, Amanda Taub, Sarah Yeomans, and Professor Andrew Schoenholtz.

[128] Georgetown Journal of International Law, Unintended Consequences: Refugee Victims of the War on Terror. 37 Geo. J. Int’l L 759 (2006).

[129] 12 Geo. Pub. Pol’y Rev. 21. Bill Frelick is the director of Human Rights Watch’s Refugee Policy Program, through which he monitors, investigates, and documents human rights abuses against refugees, asylum seekers, and internally displaced persons. From 2002-2005, Mr. Frelick was the director of Amnesty International USA. He was also the director of the U.S. Committee for Refugees for 18 years. The Review’s Brent Wisner and Jacqueline Geis sat down with Mr. Frelick in December 2006 to discuss the controversy over material support provisions for asylum seekers.

Read and learn.

Refugees at Risk—The Impact of the Material Support Bar

on Refugees Who Seek Asylum in the United States

Shamir J. Patel

I. INTRODUCTION

II. BACKGROUND

This section provides a legal analysis of the material support bar. It demonstrates the breadth of the law as written and applied.

Legal Analysis of Material Support Provision

1. Definition of Material Support

1. Definition of a Terrorist Organization

1. Discretion to Waive the Material Support Bar

1. Application to Asylum and Withholding of Removal

Material Support Provision before the PATRIOT Act

Material Support Provision after the Patriot Act

In 2005, the REAL ID Act expanded the definition of these terrorist organizations to cover any group that has a subgroup that uses weapons.

United States Resettlement Program

III. HARMING VICTIMS WHILE HELPING TERRORISTS?

Problem # 1: Terrorism Definitions Commingle Refugees with Terrorists

Problem # 2: Material Support Provided under Duress

Problem 3: Material Support Includes Immaterial Support

IV. UNINTENDED CONSEQUENCES OF THE MATERIAL SUPPORT BAR

Here in the United States, the Department of Homeland Security has put an indefinite hold on the cases of at least 565 asylum seekers because the cases involve the issue of material support.[90]

Victims of the FARC Rebels in Columbia

School Teacher from Burma

Nurse from Colombia

V. CONSTITUTIONAL CHALLENGES TO THE MATERIAL SUPPORT BAR

VI. POSSIBLE LEGAL ARGUMENTS

Hypothetical: The Colombian Helper

a. Whether Jane Reyes Materially Supported the FARC Rebels?

VII. CONCLUSION AND RECCOMENDATIONS

Georgetown University Law Case Study[126]

3. Require the U.S. government to certify an organization as a “terrorist organization” before an individual can be barred for providing “material support” to that group.

4. Provide a time bar exception for support provided before the age of consent or many years prior to the application for resettlement.

Further, the Georgetown Group[127] recommends that the Department of Homeland Security create guidelines that:

1. Interpret the material support bar to include exceptions for involuntary support and de minimis support, a requirement that terrorist organizations be certified, and a time bar.

2. Explicitly exempt individuals who inadvertently provided material support to a designated or non-designated terrorist organization, with neither knowledge nor intention to support an armed group.

Interview with Bill Frelick, Director of Amnesty International USA’s Refugee Program

a. What do asylum seekers have to worry about today that they did not have to worry about before 9-11?

b. What is the solution to fixing these material support issues?

Recommendations

[2] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[3] Id.

[4] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[5] Id.

[6] Id.

[7] 18 U.S.C. § 2339B (2000).

[8] Pub. L. No. 104-32, 110 Stat. 1214.

[9] Immigration Act of 1990, P.L. 101-649, 1990, Title VI, § 601; 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[10] Id.

[11] 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[12] Id.

[13] Id.

[14] Id.

[15] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3rd Cir. 2004)..

[16] Id.

[18] Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[19] Arias v. Gonzales, 143 F.App’x. 464 (3d Cir. 2005).

[21] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), Case Summaries (on file with author).

[22] Id.

[23] Id.

[24] Id.

[25] 8 U.S.C. § 1182(a)(3)(B)(vi)(I) (2005).

[26] 8 U.S.C. § 1182(a)(3)(B)(vi)(II) (2005).

[27] See INA § 212(a)(3)(B); 8 U.S.C. § 1182(a)(3)(B).

[28] See Rachel L. Swarns, Provision of Antiterror Law Delays Entry of Refugees, N.Y. TIMES (Mar. 8, 2006).

[29] Id.

[31] Id.

[33] Id.

[34] See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) (2005).

[35] Id.

[36] 8 U.S.C. § 1182(d)(3)(B)(i) (2005).

[39] 8 U.S.C. § 1182(d)(3)(B) (2005).

[40] Id.

[42] 8 U.S.C. § 1231(a)(3)(B)(iv) (2005).

[45] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[46] 18 U.S.C. § 2339A.

[48] UNHCR-Ecuador, Resettlement Unit Report, Unit for the Analysis of Cases with Special Protection Needs, Jan. 2006, at 2 (on file with author).

[49] Id.

[50] Id.

[53] Id.

[54] See Id.

[55] Interview with Walter Sánchez, Resettlement Officer, UNHCR-Ecuador, in Quito, Ecuador (Mar. 2006).

[56] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[57] Id.

[58] In re Ma San Kywe, Oral Argument Transcript, Board of Immigration Appeals (BIA) (Jan. 26, 2006) at 25 (on file with author).

[59] See Id.

[60] See INA § 212(a)(3)(B); 8 USC § 1182(a)(3)(B); see e.g., In re Ma San Kywe, oral argument.

[61] See Id. at 22.

[62] See Rachel L. Swarns, “Provision of Antiterror Law Delays Entry of Refugees,” New York Times (Mar. 8, 2006) at A20.

[63] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[64] In re Ma San Kywe, oral argument at 25.

[65] See Id. at 24-25; INA § 212(a)(3)(B)(vi)(III); 8 USC § 1182(a)(3)(B)(vi)(III).

[67] In the Matter of R.K., oral opinion, Judge Mirlande Tadal, United States Immigration Court, Elizabeth, New Jersey (May 9, 2005) (on file with author).

[69] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), case summaries (on file with author).

[70] 8 U.S.C. §1182(a)(3)(B)(iv)(VI) (2005).

[71] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[72] Id.

[73] Id.

[74] Id.

[75] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[76] Id.

[77] Id.

[78] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[80] See In re Ma San Kywe, oral argument at 20; Brief for Respondent, Walter Antonio Amaya Arias v. John Ashcroft, No. 04-1999.

[81] In re Ma San Kywe, oral argument at 20.

[82] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[83] Id.

[84] Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

[86] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[87] https://www.acf.hhs.gov/programs/orr/

[88] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[89] Id.

[90] Refugee Council USA, U.S. Refugee Admission Program for Fiscal Year 2006 and 2007: The Impact of the Material Support Bar

[91] 37 Geo. J. Int’l L. 759.

[92] Interview with “Miguel,” Colombian Refugee EMSA-05 (Mar. 2006) (on file with author).

[93] Id.

[94] Interview with “Diana,” Colombian Refugee SA-01 (Mar. 2006) (on file with author). Interview with “Juan,” Colombian Refugee EMSA-01 (Mar. 2006) (on file with author).

[96] The REAL ID Act, Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005).

[97] See INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (2005).

[98] 37 Geo. J. Int’l L. 759.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[109] In Colombia, a “war tax” is known as a vacuna (literally, “vaccine”) because it provides inoculation from guerilla or paramilitary attacks.

[111] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] 66 Fed. Reg. 63620 (Dec 7, 2001).

[122] People’s Mojahedin Organization of Iran v. U.S. Dept. of State, 182 F.3d 17 (D.C. Cir. 1999).

[123] Humanitarian Law Project v. Reno, 9 F. Supp 2d 1176, 1205, (C.D> Cal. 1998), judgment aff’d, 205 F.3d 1130 (9th Cir. 2000)

[124] Id.

[125] Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000).

[128] Georgetown Journal of International Law, Unintended Consequences: Refugee Victims of the War on Terror. 37 Geo. J. Int’l L 759 (2006).

Read and learn.

Refugees at Risk—The Impact of the Material Support Bar

on Refugees Who Seek Asylum in the United States

Shamir J. Patel

I. INTRODUCTION

II. BACKGROUND

This section provides a legal analysis of the material support bar. It demonstrates the breadth of the law as written and applied.

Legal Analysis of Material Support Provision

1. Definition of Material Support

1. Definition of a Terrorist Organization

1. Discretion to Waive the Material Support Bar

1. Application to Asylum and Withholding of Removal

Material Support Provision before the PATRIOT Act

Material Support Provision after the Patriot Act

In 2005, the REAL ID Act expanded the definition of these terrorist organizations to cover any group that has a subgroup that uses weapons.

United States Resettlement Program

III. HARMING VICTIMS WHILE HELPING TERRORISTS?

Problem # 1: Terrorism Definitions Commingle Refugees with Terrorists

Problem # 2: Material Support Provided under Duress

Problem 3: Material Support Includes Immaterial Support

IV. UNINTENDED CONSEQUENCES OF THE MATERIAL SUPPORT BAR

Here in the United States, the Department of Homeland Security has put an indefinite hold on the cases of at least 565 asylum seekers because the cases involve the issue of material support.[90]

Victims of the FARC Rebels in Columbia

School Teacher from Burma

Nurse from Colombia

V. CONSTITUTIONAL CHALLENGES TO THE MATERIAL SUPPORT BAR

VI. POSSIBLE LEGAL ARGUMENTS

Hypothetical: The Colombian Helper

a. Whether Jane Reyes Materially Supported the FARC Rebels?

VII. CONCLUSION AND RECCOMENDATIONS

Georgetown University Law Case Study[126]

3. Require the U.S. government to certify an organization as a “terrorist organization” before an individual can be barred for providing “material support” to that group.

4. Provide a time bar exception for support provided before the age of consent or many years prior to the application for resettlement.

Further, the Georgetown Group[127] recommends that the Department of Homeland Security create guidelines that:

1. Interpret the material support bar to include exceptions for involuntary support and de minimis support, a requirement that terrorist organizations be certified, and a time bar.

2. Explicitly exempt individuals who inadvertently provided material support to a designated or non-designated terrorist organization, with neither knowledge nor intention to support an armed group.

Interview with Bill Frelick, Director of Amnesty International USA’s Refugee Program

a. What do asylum seekers have to worry about today that they did not have to worry about before 9-11?

b. What is the solution to fixing these material support issues?

Recommendations

[2] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[3] Id.

[4] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[5] Id.

[6] Id.

[7] 18 U.S.C. § 2339B (2000).

[8] Pub. L. No. 104-32, 110 Stat. 1214.

[9] Immigration Act of 1990, P.L. 101-649, 1990, Title VI, § 601; 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[10] Id.

[11] 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2005).

[12] Id.

[13] Id.

[14] Id.

[15] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3rd Cir. 2004)..

[16] Id.

[18] Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[19] Arias v. Gonzales, 143 F.App’x. 464 (3d Cir. 2005).

[21] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), Case Summaries (on file with author).

[22] Id.

[23] Id.

[24] Id.

[25] 8 U.S.C. § 1182(a)(3)(B)(vi)(I) (2005).

[26] 8 U.S.C. § 1182(a)(3)(B)(vi)(II) (2005).

[27] See INA § 212(a)(3)(B); 8 U.S.C. § 1182(a)(3)(B).

[28] See Rachel L. Swarns, Provision of Antiterror Law Delays Entry of Refugees, N.Y. TIMES (Mar. 8, 2006).

[29] Id.

[31] Id.

[33] Id.

[34] See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) (2005).

[35] Id.

[36] 8 U.S.C. § 1182(d)(3)(B)(i) (2005).

[39] 8 U.S.C. § 1182(d)(3)(B) (2005).

[40] Id.

[42] 8 U.S.C. § 1231(a)(3)(B)(iv) (2005).

[45] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[46] 18 U.S.C. § 2339A.

[48] UNHCR-Ecuador, Resettlement Unit Report, Unit for the Analysis of Cases with Special Protection Needs, Jan. 2006, at 2 (on file with author).

[49] Id.

[50] Id.

[53] Id.

[54] See Id.

[55] Interview with Walter Sánchez, Resettlement Officer, UNHCR-Ecuador, in Quito, Ecuador (Mar. 2006).

[56] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[57] Id.

[58] In re Ma San Kywe, Oral Argument Transcript, Board of Immigration Appeals (BIA) (Jan. 26, 2006) at 25 (on file with author).

[59] See Id.

[60] See INA § 212(a)(3)(B); 8 USC § 1182(a)(3)(B); see e.g., In re Ma San Kywe, oral argument.

[61] See Id. at 22.

[62] See Rachel L. Swarns, “Provision of Antiterror Law Delays Entry of Refugees,” New York Times (Mar. 8, 2006) at A20.

[63] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[64] In re Ma San Kywe, oral argument at 25.

[65] See Id. at 24-25; INA § 212(a)(3)(B)(vi)(III); 8 USC § 1182(a)(3)(B)(vi)(III).

[67] In the Matter of R.K., oral opinion, Judge Mirlande Tadal, United States Immigration Court, Elizabeth, New Jersey (May 9, 2005) (on file with author).

[69] United States Department of State’s Bureau of Population, Refugees and Migration (“PRM”), case summaries (on file with author).

[70] 8 U.S.C. §1182(a)(3)(B)(iv)(VI) (2005).

[71] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[72] Id.

[73] Id.

[74] Id.

[75] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[76] Id.

[77] Id.

[78] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[80] See In re Ma San Kywe, oral argument at 20; Brief for Respondent, Walter Antonio Amaya Arias v. John Ashcroft, No. 04-1999.

[81] In re Ma San Kywe, oral argument at 20.

[82] See Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004).

[83] Id.

[84] Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

[86] Victims of Terror Stopped at the Gate to Safety: The Impact of the Material Support to Terrorism Bar on Refugees, 13 Hum. Rts. Brief 28 (2006).

[87] https://www.acf.hhs.gov/programs/orr/

[88] Statement of Rep. Sensenbrenner, 151 Cong. Rec. H550 (Feb 10, 2005).

[89] Id.

[90] Refugee Council USA, U.S. Refugee Admission Program for Fiscal Year 2006 and 2007: The Impact of the Material Support Bar

[91] 37 Geo. J. Int’l L. 759.

[92] Interview with “Miguel,” Colombian Refugee EMSA-05 (Mar. 2006) (on file with author).

[93] Id.

[94] Interview with “Diana,” Colombian Refugee SA-01 (Mar. 2006) (on file with author). Interview with “Juan,” Colombian Refugee EMSA-01 (Mar. 2006) (on file with author).

[96] The REAL ID Act, Division B of the Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief, 2005, Pub. L. No. 109-13, 119 Stat. 231 (2005).

[97] See INA § 212(a)(3)(B), 8 U.S.C. § 1182(a)(3)(B) (2005).

[98] 37 Geo. J. Int’l L. 759.

[99] Id.

[100] Id.

[101] Id.

[102] Id.

[103] Id.

[104] Id.

[105] Id.

[106] Id.

[107] Id.

[109] In Colombia, a “war tax” is known as a vacuna (literally, “vaccine”) because it provides inoculation from guerilla or paramilitary attacks.

[111] Human Rights First, Abandoning the Persecuted: Victims of Terrorism and Oppression Barred from Asylum, available at https:// www.humanrightsfirst.info/pdf/06925-asy-abandon-persecuted.pdf.

[112] Id.

[113] Id.

[114] Id.

[115] Id.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] 66 Fed. Reg. 63620 (Dec 7, 2001).

[122] People’s Mojahedin Organization of Iran v. U.S. Dept. of State, 182 F.3d 17 (D.C. Cir. 1999).

[123] Humanitarian Law Project v. Reno, 9 F. Supp 2d 1176, 1205, (C.D> Cal. 1998), judgment aff’d, 205 F.3d 1130 (9th Cir. 2000)

[124] Id.

[125] Humanitarian Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000).

[128] Georgetown Journal of International Law, Unintended Consequences: Refugee Victims of the War on Terror. 37 Geo. J. Int’l L 759 (2006).

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