The United States has for decades faced persistent and evolving threats from highly agile and adaptable terrorist organizations. Recognizing the need for more robust domestic counterterrorism efforts in the early 1990s, the U.S. government has since made significant use of the legal system to disrupt inchoate plots and degrade terrorists’ support structures. Among the tools most heavily used on this front have been the material support statutes and the International Emergency Economic Powers Act (“IEEPA”), which aim to deprive terrorists of necessary resources by targeting those who support or do business with them. Though used against hundreds of individuals to date, there has been a dearth of organizational prosecutions in this realm. Recognizing the crucial facilitating role corporate actors often play, the Department of Justice (“DOJ”) has long targeted neutral intermediaries to get at underlying crime, from tax evasion to drug trafficking. Recent cases suggest the DOJ is increasingly comfortable pursuing entities that do business with bad actors, including through novel applications of existing laws.
This Note argues that the material support statutes and IEEPA can and should be applied against corporate actors that do business with terrorists, as a means of both disrupting the terrorist “supply chain” and incentivizing greater private sector cooperation. Examining in particular the potential for prosecution of social media and content-hosting companies, encrypted messaging providers, and nontraditional financial intermediaries exploited by terrorists, this Note argues that a credible and carefully wielded threat of terrorism-related charges would be an important addition to prosecutors’ toolkits where appeals to good corporate citizenship fall flat. An effective all-tools counterterrorism strategy requires imagination and adaptation. This Note argues the material support statutes and IEEPA are tools that can be brought to bear against those that play the role of willing supporter or are otherwise indifferent to the harm they facilitate.