Material Support Prosecutions and their Inherent Selectivity

The government’s maintenance of a list of designated foreign terrorist groups and criminalization of any meaningful interaction or transactions – whether peaceful or violent - with such groups are no longer novel concepts. Inherent in both listing these groups and prosecuting individuals for assisting them, even in trivial ways, is the government’s essentially unreviewable discretion to classify groups and proceed with any subsequent prosecutions. A summary review of the past quarter-century reveals the government’s predilection for pushing the boundaries of what it deems “material support” to terrorist groups, all the while making greater and greater use of a criminal statutory scheme for foreign policy purposes. This Article explores the dynamics of the designation process and material support prosecutions, highlighting the selectivity inherent at every turn, which tells who and from what major monotheistic faith the terrorist threat emanates.