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(ii) Material support of terrorism and related civil exposure

The material support of terrorism is a federal crime under 18 U.S.C. §§2339 (A) and (B). The Intelligence Reform and Terrorism Prevention Act of 2004[284] amended the definition of “material support” to include:

(1)    the term “material support or resources” means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation, except medicine or religious materials;

(2)    the term “training” means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and

(3)    the term “expert advice or assistance” means advice or assistance derived from scientific, technical or other specialized knowledge.[285]

A Shariah authority issuing, promoting or advocating a legal ruling for Jihad to anyone for the purpose of conducting terrorism would quite clearly fall within the definition of “expert advice” “derived from . . . specialized knowledge”. In addition, a New York federal district court has concluded that an attorney that passed along a legal ruling calling for Jihad had provided “material support” in the form of “personnel” as part of a terror-laden conspiracy. In U.S. v. Satter[286], the court upheld attorney Lynne Stewart’s conviction for violating Section 2339(A) by merely passing along a fatwa or legal ruling regarding Jihad issued by her client, Sheikh Omar Abdel Rahman, to terrorists in Egypt who respected his authority in matters of Shariah. The court concluded that passing along a legal ruling was like providing “personnel” to the co-conspirators and amounted to material support.[287]

A that promotes the legal rulings of a Shariah authority who is known for issuing such rulings on the Law of Jihad could risk extraordinary criminal exposure. While it is not likely that the company would promote the actual rulings relative to Jihad or do so with the actual intent to cause violence, this will not be the standard. The question will be what role does the Shariah authority occupy within the company or what relationship does he have to the company if he is an “outside advisor”. To the extent that criminal respondeat superior implicates the corporate entity in the Shariah authority’s scienter, a defense built upon lack of knowledge by the board of directors will not likely be effective. And, the fact that such legal rulings are published in broad daylight and available from English open sources will render the corporation’s plea of lack of intent all the more unavailing to the extent it rises to the level of “willful blindness” or “recklessness”.

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