Yesterday, Hima Shamsi, our new National Security Project staff attorney, blogged on the Huffington Post about the mistrial declared in the federal case against the Holy Land Foundation. This case, Hima says, points to the problem of flaws in the criminal material support statute - which could use a big overhaul:
Material support prosecutions criminalize guilt by association. Fundamental to this country's conception of criminal responsibility is the requirement that, in the words of the Supreme Court, "guilt is personal." In other words, we do not criminalize guilt by association. The material support statute and the government's application of it, however, do just that by not requiring that the purpose of any support be unlawful."
So even unwitting donors with only good intentions - like supporting humanitarian aid - can still be prosecuted for providing funds to groups the government believes is supporting terrorism.
The New York Times tackled the larger issue of the government bringing misguided terrorism trials. According to the article, "scholars and former prosecutors say the government should have known better than to bring some of its recent failed cases and that a lack of selectivity and judgment, along with a reliance on stale evidence and links to groups not at the core of the current threat, may be harming the effort to combat terrorism."