The district court did not err in convicting and sentencing two U.S. citizens who engaged in online fundraising activities for a foreign terrorist organization. The evidence supporting the convictions – obtained through ex parte, in camera FISA review – was not improperly obtained and proved the defendants’ intended support of the organization’s terrorist activities.
Between 2011 and 2013, Appellants Muna Osman Jama and Hinda Osman Dhirane participated in an online chat room for members of the Somali diaspora around the world. Topics included, among other things, the activities of al-Shabaab, a group designated as a foreign terrorist organization by the U.S. State Department. Al-Shabaab’s leaders and representatives would sometimes speak to the group and solicit support, including financial support, for their terrorist activities.
The Appellants also participated in a private chat room only for individuals who had been or who could be persuaded to become committed supporters of al-Shabaab. The members pledged periodic payments in support of al-Shabaab’s operations. The Appellants kept track of those commitments, contributed money themselves, and arranged for al-Shabaab representatives to speak to the group to solicit financial support. They then transmitted collected money to al-Shabaab representatives in Kenya and Somalia.
The government gathered evidence of these activities through electronic surveillance authorized under the Foreign Intelligence Surveillance Act. Transcripts of their conversations showed the Appellants and their co-conspirators sharing advice about how to avoid being caught and discussing instances where their financial help had assisted fighters in the field.
The Appellants and others were charged with 20 substantive counts of providing material support under 18 U.S.C. § 2339B(a)(1). After a bench trial, the district court found the defendants guilty and sentenced them to lengthy prison terms.
On appeal, the defendants contend that the district court erred by: (1) not suppressing evidence obtained unconstitutionally in light of FISA’s ex parte and in camera judicial review process; (2) applying an incorrect legal standard to conclude that two co-conspirators were “part of” al-Shabaab; and (3) applying sentencing enhancements based on intent, knowledge, or reason to believe that the support given would be used to assist in the commission of violence.
Ex parte FISA proceedings
The Appellants argue that it was contrary to our constitutionally established adversary system to deny their counsel —who had the requisite security clearance – access to the warrant application and supporting materials to assess whether they met FISA requirements and were consistent with the Fourth Amendment.
In enacting FISA, Congress intended that the procedures provided strike a reasonable balance between protecting individuals’ constitutional guarantees and promoting national security. It reasoned that the additional benefit of an unconditional adversarial process was outweighed by the nation’s interest in protecting itself from foreign threats. This court shares the view of every federal court to have considered the issue: FISA did in fact reach a reasonable and constitutional balance of those competing interests.
Material support for terrorism
The Appellants are correct that § 2339B does not require them to be “part of” a foreign terrorist organization. The statute prohibits anyone from knowingly providing or attempting to provide material support or resources to a foreign terrorist organization.
The district court apparently misunderstood the statutory requirements, but it nevertheless appropriately convicted both defendants based on its factual findings. Those findings included the following: al-Shabaab was designated as a foreign terrorist organization and was engaging in terrorist activities; the defendants knew of these activities and were “ardent, committed, and active supporters” of the organization; and the defendants, through an internet chat room, were committed to providing monthly financial contributions” for the organization’s benefit.
The district court further found that Jama “personally solicited contributions,” “monitored whether the individual members had satisfied their monthly commitments and whether those sums had been successfully transmitted to and received by [al-Shabaab] contacts,” and served as “an enforcer by following up with those … who had not paid their monthly commitments.” Dhirane played a similar role.
Soliciting money to satisfy al-Shabaab’s expressed needs, collecting that money, and then transmitting it to individuals associated with al-Shabaab for the sole purpose of funding al-Shabaab’s activities violated § 2339B. Moreover, in this case the monies actually went to maintain safehouses for al-Shabaab militants and to acquire trucks, transportation, and other support services for the militants. These facts undoubtedly fulfill the elements of the prohibited conduct.
Mens rea enhancement
Sentencing Guidelines § 2M5.3(b)(1)(E) does not require that support be traced to or be designed to lead to a specific act of violence, as the Appellants suggest. It instead requires that the defendants intended, knew, or had reason to believe that their support would be used to assist in acts of violence by the terrorist organization.
Here, the district court found that the defendants engaged the leaders of al-Shabaab – a designated foreign terrorist organization – to learn of and respond to specific needs arising “as a result of [al-Shabaab] military operations.” Further, the defendants coordinated their fundraising with those specific needs.
Because the defendants’ financial support was directed at and designed to support al-Shabaab’s military operations in Somalia and Kenya, the district court had sufficient evidence with which to apply the two-level enhancement.
United States v. Dhirane, Case No. 17-4205, July 16, 2018. 4th Cir. (Niemeyer), from EDVA at Alexandria (Trenga). Geremy C. Kamens for Appellants; Jonathan Y. Ellis for Appellee. VLWN o. 018-2-150, 19 pp.