Published by The Lawfare Institute
in Cooperation With
From 1996 through 2004, § 2339B provided liability only for conduct occurring “within the United States or subject to the jurisdiction of the United States.” Depending on how broadly courts might prove willing to construe the concept of “subject to the jurisdiction of the United States,” this might preclude reliance on § 2339B for members and supporters of al Qaeda ... at least insofar as such persons were noncitizens outside U.S. territory.If so, § 2339B would not apply to the vast majority of al Qaeda members who fell into U.S. custody in Afghanistan and elsewhere in the months and years after 9/11 . Section 2339B’s jurisdictional limitation was dropped in late 2004, and thus will become less significant over time. For now, however, it remains quite relevant, including with respect to those detained at Guantanamo.... § 2339A (like § 2339B) once was subject to a significant jurisdictional prerequisite. Until the PATRIOT Act was enacted in late 2001, liability under § 2339A attached only with respect to conduct that occurred “within the United States.” For an important cohort of potential defendants—i.e., those who provided support to the jihad movement exclusively outside the U.S. prior to late 2001—prosecutors therefore cannot rely on § 2339A no matter how broadly it is interpreted.
So let's apply this to Hamdan's fact pattern. He was certainly not within the United States prior to his capture, nor was he sensibly described as being under U.S. jurisdiction. So 2339B is off the table. As for 2339A, however, it's rather interesting. It could not apply to him until the PATRIOT Act came into force. That happened on October 26, 2001. As I understand it, Hamdan was not captured until about a month later, and was engaged in conduct during the intervening weeks that in theory could have supported a 2339A charge (providing material support with knowledge or intent that the support be used by others in connection with one of many predicate criminal charges, such as conspiracy to commit murder overseas under 18 USC 956(a)). Hence, it was possible in theory to charge Hamdan under 18 USC 2339A, for whatever that is worth.