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The War on Terror and Charitable Giving

It is not often that the GWOT affects the world of T&E law, but  the Supreme Court’s June 21 6-3 opinion in Holder v. Humanitarian Law Project, 561 U.S. ____ (2010) is an exception to the general rule. The opinion upheld the Patriot Act provision providing for fines and up to 15 years’ imprisonment for persons who knowingly provide material support or resources to groups designated as foreign terrorist organizations by the Secretary of State. For purposes of the statute, “material support and resources” includes lots of sketchy and obviously terrorist things like explosives, weapons, and safehouses. Relevantly for charitable donors, however, it also includes any property, tangible or intangible.

Humanitarian Law Project involved a law professor and others who wished to provide instruction to Kurdish separatists (the PKK) and the Tamil Tigers (in Sri Lanka) on how to advance their objectives through international law and other (allegedly) peaceful means. The Court noted that some terrorist groups conduct both peaceful and violent activities, but that the violent activities may so taint the organization that “any contribution to such an organization facilitates [the criminal] conduct.”

Milton Cerny, Mark Brzezinski, and Michele A.W. McKinnon at McGuire Woods note in their useful white paper on international charitable giving and estate planning that Humanitarian Law Project means that “any provision of charitable assistance to a terrorist organization, including humanitarian aid, would be considered ‘material assistance’ precluded by Federal law until the Court rules otherwise.”

Most clients’ charitable plans aren’t affected by the Supreme Court’s opinion, but any client making international charitable contributions now needs to be mindful not only of deductibility issues, but also staying out of jail. The Secretary of State’s list of terrorist groups is available here. In addition to the usual suspects in Palestine and Our Friends the Saudis, the list also includes Basque, Irish, and Colombian groups.

It’s been said, perhaps too glibly, that one man’s terrorist is another man’s freedom fighter (e.g., here and here). Without ignoring the reality of the terrorist threat, it’s fair to describe Humanitarian Law Project as a broad decision that, in its pursuit of national security objectives, opts to basically regard everything a terrorist does as terrorism. (Consider whether this is the national security law equivalent of the “collateral source rule” many readers learned in Torts during 1L year?) The breadth of the opinion concerned Justices Breyer, Ginsburg, and Sotomayor (their dissent is here).

We can’t know which group will be responsible for a future terrorist attack. It’s not impossible that a client who had given to such a group before an attack on the US could face very serious questions, risks, and criminal prosecution after the fact, even if the client had only been a fellow traveler, at most. For the time being, caution should be the order of the day for any possibly questionable international contributions, and the State Department list should be consulted before any gift is made.

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