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Introduction
Recent high-profile white supremacist violence in the US has, once more, prompted calls for expansions of the legal and policing apparatus seeking to counterterrorism. This paper urges caution by way of historical example. I focus on the Antiterrorism and Effective Death Penalty Act of 1996 (104th Cong. Public Law 104-132; hereafter AEDPA) and its relationship to the criminal charge of providing material support for terrorism. In so doing, I aim to illustrate how policy changes in the wake of right-wing terrorist attacks instead become incorporated into the policing of communities of color, particularly black Muslim communities.
This paper briefly reviews the origins of bans on material support for terrorism, explores how those provisions have manifested racialized surveillance practices, and offers some introductory analysis of the events of January 6, 2021 at the US Capitol. I do so to argue that, should policing indeed prove to be the best course of action for countering terrorism, preexisting statutes (and the racialized constraints under which they are enforced) merit further review in the struggle against white supremacist violence.
Material Support
One of many afterlives of the Oklahoma City Bombing, the AEDPA substantially altered the legal architecture of counterterrorism in the United States by criminalizing providing material support to designated foreign terrorist organizations. Prosecutors have used this charge in a majority share of the over five-hundred terrorism cases tried in American courts to date (Aaronson and Williams 2019). Other common charges include immigration offenses or lying to police. Because all but four material support convictions to date occurred in cases concerning a designated foreign terrorist organization, there is a popular misconception that the US does not have laws criminalizing domestic terrorism (German and Robinson 2018). This is not the case.
Material support first appears as a term of art in the Immigration and Nationality Act, which codified the category of foreign terrorist organizations and established providing material support to one as grounds for inadmissibility to the US. The term entered the US criminal code through the Violent Crime Control and Law Enforcement Act of 1994 (103th Cong. Public Law No: 103-322). Codified at 18 U.S.C. 2339A, the 1994 Crime Bill defines material support as currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification,...