[UPDATE: A reader points out that when discussing this subject back in 2011, the question had arisen as to whether this was indeed the best reading of 2339B(d) for the 1996-2004 period. I had responded that the issue was indeed more complex than I had at first suggested, for the following reason: The actus reus clause of the statute (2339B(a)) was jurisdictionally limited as I suggested, yet there was a separate clause that rather incongruously referred nonetheless to extraterritorial jurisdiction (2339B(d)). My current view is that the more specific (2339B(a)) probably should control over the general (2339B(d)), and that the rule of lenity in any event probably would require adopting the narrower reading had the issue ever arisen. I also think that the addition of a broader enumeration of covered persons in 2004 makes most sense against the backdrop of my reading, though I gather the legislative history is indeterminate on this point. In any event, I agree that there is room for reasonable disagreement on the point. Vis-a-vis Hamdan, the important takeaway, I suppose, is that it is at least far-from-clear that 2339B could have been used.]
In the aftermath of the DC Circuit’s ruling in Hamdan II, one question that arises is whether Hamdan could instead have been prosecuted for material support in federal court. The answer is “no” as to 18 USC 2339B, but probably yes as to 2339A thanks to the fact that Hamdan was not actually captured until November 2001. Let me explain that….
The problem under both statutes is one of extraterritoriality in cases involving non-citizens whose conduct occurred entirely overseas. Here is what I had to say about this a few years ago in a brief article surveying the pros and cons of using federal criminal law in such cases:
From 1996 through 2004, § 2339B provided liability only for conduct occurring “within the United States or subject to the jurisdiction of the United States.” Depending on how broadly courts might prove willing to construe the concept of “subject to the jurisdiction of the United States,” this might preclude reliance on § 2339B for members and supporters of al Qaeda … at least insofar as such persons were noncitizens outside U.S. territory.If so, § 2339B would not apply to the vast majority of al Qaeda members who fell into U.S. custody in Afghanistan and elsewhere in the months and years after 9/11 . Section 2339B’s jurisdictional limitation was dropped in late 2004, and thus will become less significant over time. For now, however, it remains quite relevant, including with respect to those detained at Guantanamo….
§ 2339A (like § 2339B) once was subject to a significant jurisdictional prerequisite. Until the PATRIOT Act was enacted in late 2001, liability under § 2339A attached only with respect to conduct that occurred “within the United States.” For an important cohort of potential defendants—i.e., those who provided support to the jihad movement exclusively outside the U.S. prior to late 2001—prosecutors therefore cannot rely on § 2339A no matter how broadly it is interpreted.
So let’s apply this to Hamdan’s fact pattern. He was certainly not within the United States prior to his capture, nor was he sensibly described as being under U.S. jurisdiction. So 2339B is off the table. As for 2339A, however, it’s rather interesting. It could not apply to him until the PATRIOT Act came into force. That happened on October 26, 2001. As I understand it, Hamdan was not captured until about a month later, and was engaged in conduct during the intervening weeks that in theory could have supported a 2339A charge (providing material support with knowledge or intent that the support be used by others in connection with one of many predicate criminal charges, such as conspiracy to commit murder overseas under 18 USC 956(a)). Hence, it was possible in theory to charge Hamdan under 18 USC 2339A, for whatever that is worth.