More on "Substantial Support", "Material Support," LOAC, and the First Amendment

By Robert Chesney
Wednesday, September 19, 2012, 11:41 PM

I'd like to expand on Ben's post below in relation to Hedges and the First Amendment, focusing on the "material support"/"substantial support" issue.  (I'm having to write quickly, so please excuse any typos in what follows.)

Specifically, I'd like to expand on the point that the NDAA's "substantial support" language should be understood to be no more sweeping than (or even narrower than) the "material support" concept embodied in 18 USC 2339A & 2339B.  The Bush administration began using the material support concept early on in the detention setting, plainly (IMHO) drawing the language directly from 18 USC 2339A and 18 USC 2339B (indeed, blending them together). It would have made little sense at that time, I think, to describe the government as conceptualizing the scope of conduct at issue as being broader than the set of actions that could amount to "material support" under the criminal statutes (note that I'm talking here about the kinds of conduct at issue, not the separate issue of which groups can count as predicates for application of the support concept).  Later, the Obama administration modified this concept by shifting to the “substantial support” formulation, a move that seems clearly to have been meant to  narrow the reach of the concept so as to exclude de minimis forms of support (ala the infamous Little Old Lady in Switzerland scenario).  Next, Congress came along to codify that narrower "substantial support" language. In light of all this, it seems to follow that whatever else may be true about "substantial support" under the NDAA, it is narrower than the range of conduct constituting "material support" under 2339A & B.

Of course, the NDAA version grows narrower still if one thinks that LOAC applies as an additional layer of constrain informing the meaning of the NDAA (which I think it does) and that under LOAC not all of the conduct prosecutable under 2339A or B would also justify detention.  To explore that latter point a bit, let's assume that LOAC indeed applies. It seems to me that LOAC detention standards can intersect with the support concept in two ways.  First, by analogy to GCIII art 4, you can take some scenarios of support—particularly those involving persons accompanying a force in a physical sense—and analogize them to suttlers and the like (i.e., non-members of the armed force who accompany the force and are subject to detention as POWs upon capture).  Second, by analogy to the GCIV security internment regime, one can say separately that non-criminal detention also is permitted under LOAC for any support (irrespective of physical proximity) if that support otherwise implicates the “imperative threat to security” standard.    Combining these two possibilities, it seems to me that one ends up with a narrrower set of "support" circumstances under the NDAA than one could prosecute under 2339A/B--and certainly no more than could be prosecuted under 2339A/B.  And if that is right, then Ben’s point about the conduct at issue here not falling within the 2339A/B standard in the first place (thanks to the clarity provided by Holder v. HLP with respect to how the support concept interacts with the First Amendment) would seem to make Hedgesa pretty simple--and very narrow--case.