A Ticking Time Bomb in Anti-Terrorism Law

Last week, the U.S. Court of Appeals for the Second Circuit handed down an opinion that will probably fail to receive much coverage, but it should.

The case concerns a would-be suicide terrorist by the name of Akayed Ullah, who, just six years after arriving in the United States from Bangladesh in 2011, set off a pipe bomb at the Times Square subway station. The device only partially detonated, leaving himself and five others injured. After the attack, Ullah told investigators that he had done so on behalf of ISIS.

Aside from a story of failed assimilation, Ullah’s tale is largely representative of the mass recruitment efforts that define Islamic terrorism. Twelve days before the attack, ISIS issued a video, replete with bombing imagery, instructing supporters to engage in terror attacks in the United States. Ullah heeded the call. The video featured the ISIS slogan “Die in your rage, America,” which Ullah emblazoned on his passport and on the box in which he stored his bomb-making materials. In less than two weeks, he would use those materials to assemble a bomb that thankfully would fail to kill anyone.

Ullah says he chose Times Square as the location for his botched endeavor because he had heard that ISIS had recently threatened Times Square. (Presumably, he was doing his part to ensure the group made good on its threat.) An hour before the attack, Ullah posted a video of himself on Facebook using the ISIS rallying cry of “Baqiya.”

But none of these details seemed to matter to Judge Myrna Pérez, who managed to devote nearly half of her 70-page opinion to the astounding proposition that Ullah had acted “entirely independently” of ISIS, meaning that he could not be guilty of having provided or attempted to provide material support to a terrorist organization under the premier anti-terrorism statute, 18 U.S.C. Section 2339B.

What is even more remarkable than Judge Pérez’s garbled position is the fact that she managed to find another reasonably educated person — Judge Jed Rakoff — to agree with her. The voice of dissent (and sanity) emerges from Judge Steven Menashi, who flatly asserts in response, “The reasoning of the majority opinion is incoherent.” That’s because it is.

Section 2339B is the main mechanism by which the government prosecutes those who provide material support to terrorists. When it argues that someone has done so in the form of “personnel” or “service” in particular, the government must show that the person in question provided or attempted to provide “personnel” to work “under the direction or control” of the terrorist organization, or service “in coordination with, or at the direction of, a foreign terrorist organization.” Here, a New York jury had found Ullah guilty.

Upon review of the decision, Judge Pérez rejects the finding that Ullah attempted to provide personnel or service to ISIS, despite Ullah’s admitting to just that. Instead, Pérez searches for evidence of explicit coordination between Ullah and ISIS and, finding none, determines it impossible for Ullah to have attempted to take directions from ISIS.

The majority comforts itself for arriving at this conclusion by suggesting that it better comports with the much-revered First Amendment. For who among us has not worried that criminalizing bombings conducted at the direction of ISIS risks chilling protected speech and association? Pérez makes a confused analogy that compares Ullah to, say, an independent journalist who writes pieces sympathetic to terrorists. This implies that Pérez rejects the proposition that mass media — a primary means of communication for modern terrorist organizations — can be used for “direction” or to compel action, as they were in Ullah’s case. Notably, prior to watching ISIS videos, Ullah was not committing acts of terror.

Judge Pérez’s opinion is not only muddled but genuinely dangerous, for it allows one of the most potent mechanisms of Islamic terrorism — mass recruitment — to escape scrutiny and punishment under U.S. anti-terrorism laws. Outside of their leadership, global terrorist organizations often are amorphous. The “member list” is a moving target and not easily definable. Frequently, terrorist attacks are executed after followers abroad receive direction from mass distributed propaganda materials. This ad hoc arrangement is what functionally permits terrorist organizations to claim that their operations — and membership — are “global.”

We must therefore ascertain the nature of the relationship between a terrorist and a terrorist organization from a series of indicators provided by the two parties: Did the terrorist, around the time of the attack, consume the group’s material commanding that he attack? Did the terrorist claim to be working for the group? Did he have the group’s insignia on his person? Did the group claim credit for the attack? Here, all but one question is answered in the affirmative (and, as Judge Menashi points out, ISIS may have refrained from taking credit only because the attack failed).

The majority’s opinion makes a fine mess of anti-terrorism law. By determining that the most popular mode of recruitment for Islamists cannot form the basis of a prosecutable terrorism offense, Pérez guts one of the most powerful deterrents of our national security regime. If following the directions of a global terrorist organization, bearing its insignia on your equipment, and declaring an attack to have been conducted in its honor does not amount to an “attempt” to provide “personnel” or “service” to that terrorist organization, it is unclear what would. As Iowa’s Solicitor General Eric Wessan quipped to me, “Placing pipe bombs for ISIS is not expressive activity.”

Adding insult to injury, the majority explicitly fails to establish any standard whatsoever for when terrorist groups’ use of mass media can or might constitute direction, proudly asserting, “We merely hold that the online videos at issue here are not ‘directions’ at all.” Judges, prosecutors, and would-be terrorists are left without an understanding of when directions are no longer “directions” but rather inspirational exhortations.

As Menashi notes, the legislative history gives no reason to think that Congress wanted a cramped reading of the personnel provision in Section 2339B. After all, someone like Ullah who was taking cues from ISIS can hardly be described as a lone wolf acting independently. Still, the majority opinion congratulates itself by noting that Ullah’s life sentence remains unchanged by its reversal of only one count out of the six of which he was convicted. But the long-term consequences are seemingly not lost on Judge Pérez, who wryly notes that this decision will “make a difference in future cases.”

Indeed, it tragically will.