Access*: Interdisciplinary Journal of Student Research and Scholarship Volume 1 Article 8 Issue 1 Inaugural Issue - Fall 2017 2017 Material Support Laws and Critical Race Theory Nichole M. Pace University of Washington Tacoma, [email protected] Follow this and additional works at: https://digitalcommons.tacoma.uw.edu/access Part of the First Amendment Commons, Human Rights Law Commons, Immigration Law Commons, International Law Commons, Law and Politics Commons, Law and Race Commons, Legal Writing and Research Commons, Legislation Commons, National Security Law Commons, Nonprofit Organizations Law Commons, Other Arts and Humanities Commons, Other Legal Studies Commons, Other Public Affairs, Public Policy and Public Administration Commons, Policy Design, Analysis, and Evaluation Commons, Politics and Social Change Commons, Public Policy Commons, Race and Ethnicity Commons, and the Terrorism Studies Commons Recommended Citation Pace, Nichole M. (2017) "Material Support Laws and Critical Race Theory," Access*: Interdisciplinary Journal of Student Research and Scholarship: Vol. 1 : Iss. 1 , Article 8. Available at: https://digitalcommons.tacoma.uw.edu/access/vol1/iss1/8 This Undergraduate Research Paper is brought to you for free and open access by the Teaching and Learning Center at UW Tacoma Digital Commons. It has been accepted for inclusion in Access*: Interdisciplinary Journal of Student Research and Scholarship by an authorized editor of UW Tacoma Digital Commons. Pace: Material Support Laws Abstract The paper examines terrorism designation and material support laws for structural racism using Critical Race Theory. Legislation concerning terrorist organizations continues to limit efforts of humanitarian organizations and refugee applicants. The impact of such legislation extends beyond the designated terrorist organizations to the communities and countries they inhabit. This article describes the legal statutes and issues related to terrorist designation and material support laws before defining Critical Race Theory. The article seeks to understand the structural racism involved in the defined statutes and procedures. Using Critical Race Theory, the article defines how material support laws and terrorist designation procedures are inherently racist. The paper finishes by exploring avenues to address and counter the impact left by the current statutes and procedures related to material support laws and terrorist designation. Keywords: Critical Race Theory, terrorism, foreign policy, institutional racism, material support laws, terrorist designation, humanitarian, Middle East 1 Published by UW Tacoma Digital Commons, 2017 1 Access*: Interdisciplinary Journal of Student Research and Scholarship, Vol. 1 [2017], Iss. 1, Art. 8 Material Support Laws and Critical Race Theory Since 9/11 and the War on Terror, legislation attempting to address national security concerns have passed through Congress with little consideration for the potential implications of the laws claiming to protect the citizens of the United States (Nezer, 2006). Laws prohibiting the offering or giving of material support to designated foreign terrorist groups purport to prevent attacks and stabilize regions, but these laws potentially do the exact opposite—an idea this paper will explore (Fraterman, 2014). This paper can be divided into three sections. The first section defines terrorism and the process of becoming a designated foreign terrorist organization, discusses the issues behind the process, and provides an overview of the material support clause and its history. The second section defines critical race theory and discusses experiences of Muslim and Arab individuals after 9/11. The third section provides an analysis of material support laws and the designation of foreign terrorist organizations from a critical race perspective. Critical race theorists extensively examine social and government policies, practices, norms, and laws within the United States. The critiques from critical race theory address how race impacts choice, laws, outcomes, and treatment, among other topics (Harris, 2012). Currently, little research seems to exist concerning a critical race perspective of the United States material support laws and the foreign terrorist designation process. This paper attempts to use critical race theory to analyze material support laws and the foreign terrorist designation process in order to broaden dialogue and awareness surrounding the impact of these policies. Through this process, this analysis of material support laws using critical race theory finds that these laws and procedures are structurally racist because the laws impact primarily non-white regions or 2 https://digitalcommons.tacoma.uw.edu/access/vol1/iss1/8 2 Pace: Material Support Laws countries, do not allow support for war-torn regions, and prevent refugees from these areas from entering the United States. Defining Components and Processes An analysis of material support laws cannot start at the law itself, but must begin at the defining components and the point where material support laws apply. Discussing these components and processes first is important because material support laws do not apply until a group has been put on the designated foreign terrorist organization list. As such, an analysis requires an overview of how terrorism is defined in the United States, the process of designating organizations to the foreign terrorist organization list, the list of organizations designated as terrorist organizations, and the potential impact and implications of both designation and material support laws. Once these components are defined and examined, a critique of not only material support laws but of how terrorist organizations are designated in general is possible. Defining Terrorism Two types of terrorism exist in law: domestic terrorism and international terrorism. The focus of the paper on material support laws targeting foreign terrorist organizations leads to an emphasis on international terrorism. The U.S. Code defines international terrorism with three components. First, an action must “involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State” (18 U.S.C. § 2331, 2015). The second component is that an action must “appear to be intended to intimidate or coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of a government by mass destruction, assassination, or kidnapping” (18 U.S.C. § 2331, 2015). The final component states that the action must “occur 3 Published by UW Tacoma Digital Commons, 2017 3 Access*: Interdisciplinary Journal of Student Research and Scholarship, Vol. 1 [2017], Iss. 1, Art. 8 primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum” (18 U.S.C. § 2331, 2015). The statute detailed here is used to identify organizations who might qualify for the designated foreign terrorist organization list (U.S. State Department, n.d.). So how does the government pick and choose which groups to label as a foreign terrorist organization? The Designation Process In order for an organization to be designated as a foreign terrorist organization, it must meet three criteria: “It must be a foreign organization. The organization must engage in terrorist activity… or retain the capability and intent to engage in terrorist activity or terrorism. The organization’s terrorist activity or terrorism must threaten the security of U.S. nationals or the national security… of the United States” (U.S. State Department, n.d., “Legal Criteria for Designation under Section 219 of the INA as amended,” para. 3). The organization is investigated by the State Department where, if they deem sufficient evidence exists, a proposal is sent to the Secretary of State to designate the group as a foreign terrorist organization (Wyatt, 2009). The Secretary of State works alongside the Attorney General and Secretary of Treasury to determine whether the organization qualifies for designation. Once they determine that an organization meets the criteria for designation, they notify Congress who then has an opportunity to block the designation within a week. After that week, the group is considered a foreign terrorist organization with all of the legal ramifications and stigma that follow (Wyatt, 2009). Once an organization is designated as a foreign terrorist organization, several penalties are implemented against the organization. Members of the organization are not allowed in the United States, and can be deported if they are currently in the United States. Financial 4 https://digitalcommons.tacoma.uw.edu/access/vol1/iss1/8 4 Pace: Material Support Laws institutions are obligated to take control over any assets if it becomes apparent that foreign terrorist organizations use their services. Lastly, the material support laws against foreign terrorist organizations apply immediately, once the group is designated. All of these consequences serve to isolate the organizations, potentially exacerbating an already tense situation (Van Bergen, 2004). The designation statute lends itself to minimal accountability or review and an abundance of