U.S. v. Ullah and the Problem With the ‘Lone Wolf’

On April 21, the U.S. Court of Appeals for the Second Circuit issued an opinion in the case United States v. Akayed Ullah. On the morning of Dec. 11, 2017, Ullah arrived at a crowded New York City subway station wearing a suicide bomb and detonated it, injuring himself and others. In Ullah’s own words, he did the bombing “on behalf of the Islamic State,” referring to the foreign terrorist group also known as ISIS.

The Department of Justice charged Ullah with providing material support to a foreign terrorist organization (FTO) under 18 U.S.C. § 2339B(a)(1), a bedrock terrorism statute that federal prosecutors use to pursue cases ranging from terrorist financing to mass shooting plots. A jury found Ullah guilty of material support to ISIS, among several other charges, and he was sentenced by a federal judge in the Southern District of New York to life in prison. The Second Circuit upheld on appeal Ullah’s life sentence but overturned his material support conviction, issuing a split decision that effectively requires direct communication with an FTO to fall within the statute. In short, the Second Circuit viewed Ullah as a “lone wolf.”

The decision has significant implications for future material support investigations and prosecutions. Many terrorists do not directly communicate with FTOs. Far from being “lone wolves,” though, they facilitate or, worse, directly carry out violent acts following instructions FTOs provide, spreading FTO symbols and messages, and doing it all in the FTOs’ names. After Ullah, absent another federal offense, investigators and prosecutors may have their hands tied until these kinds of subjects either attempt to, or succeed in, making direct contact with a terrorist group, commit another violation, or commit the attack itself. This may result in longer, riskier investigations and will require law enforcement to have sufficient investigative tripwires in place to know when subjects’ conduct establishes an arrestable offense. This article discusses the Ullah prosecution, the material support statute designed to stop terrorists earlier, and the potential ramifications of this decision for future counterterrorism cases.

Ullah Prosecution

Akayed Ullah was born on a small island off the coast of Bangladesh in 1990, before immigrating to the United States in 2011. By his early 20s, ISIS propaganda had already reached him in Brooklyn, New York, with its message for supporters to take up the jihadist fight in their homelands.

According to his defense attorneys, Ullah grew depressed after his father died and became increasingly resentful toward U.S. foreign policy, leading him down the path of radicalization. He began accessing ISIS content online in 2013, including a video in which ISIS instructed its supporters to commit acts of terror in their home countries if they were unable to join the fight overseas. In the year before the attack, Ullah searched for and consumed ISIS video calls to action and ISIS slogans and, relatedly, videos on how to build improvised explosive devices.

In the weeks leading up to his attack, he built a homemade bomb using a combination of Christmas tree lights, a nine-volt battery, and metal screws. He stored his bomb-making materials in a box on which he inscribed ISIS slogans, including one that read, in English, “die in your rage, America”—a slogan he also wrote on his passport. He never interacted with ISIS leadership or its members directly, digesting only the content ISIS put out publicly, including messages to its followers to carry out attacks where they live.

Eventually, Ullah selected his target: the subway station underneath Manhattan’s Port Authority bus terminal. His choice was deliberate: Out of all 472 stations in New York’s subway system, the station beneath the Port Authority was the busiest, with roughly 7,800 buses and 260,000 passengers traveling through the station every day. Ullah told law enforcement that he was inspired to target the station after watching a television interview in which a commuter passing through the station said he did not feel threatened by ISIS’s recent threats against the United States. Ullah wanted to send a message that ISIS should indeed be feared by targeting the location he believed the interview had taken place.

On the morning of Dec. 11, 2017, Ullah posted a video to Facebook in which he repeated an ISIS rallying cry, stating, “O Trump, you fail to protect your nation. Baqiah.” Then, at 7:18 a.m., Ullah walked into the Port Authority subway station with his homemade bomb zip tied to his chest and detonated it surrounded by scores of unsuspecting commuters. Miraculously, all of the commuters survived. A piece of shrapnel hit one person in the leg, several others sustained partial hearing loss, and some could no longer ride the train, significantly impacting their lives. Ullah also survived. The bomb tore through his clothes, and emergency responders transported him to the hospital, but it did not cause any major injuries.

There, under arrest at the hospital, Ullah plainly told investigators, he did it “on behalf of the Islamic State.”

He was federally charged with providing material support and resources to a designated FTO, along with four other charges related to the attack. Less than a year later, in November 2018, a federal jury in the Southern District of New York convicted him on all charges and, in April 2021, he was sentenced to life in prison.

The Material Support Statute and Ullah’s Appeal

The material support statute prohibits “knowingly provid[ing] material support or resources to a foreign terrorist organization, or attempt[ing] ... to do so.” Support is defined under the statute as encompassing three general categories: (a) things, such as money or weapons; (b) personnel, including oneself; and (c) services, which can include creating media content on behalf of the FTO. In any of these situations, the material support statute allows the government to charge either the substantive offense, in other words, the act of support has been completed; an attempt, which requires a substantial step; or conspiracy, an agreement with another person to provide support.

To fall within that statute’s personnel prohibition, § 2339B(h) provides that a person must “work under that organization’s direction or control. Individuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization’s direction and control.” Similarly, in Holder v. Humanitarian Law Project, the Supreme Court held that the statute’s provision for “services” carried out for a terror group “reaches only material support coordinated with or under the direction of a designated foreign terrorist organization.”

The Supreme Court did not articulate how much “coordination” or “direction” is required for “services” to fall within the meaning of § 2339B. Indeed, in Holder, the Court acknowledged that “gradations of fact or charge would make a difference as to criminal liability, and so adjudication of the reach [of § 2339B] must await a concrete fact situation.” Although not defined under the statute, Holder found that “a person of ordinary intelligence would understand the term ‘service’ to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.”

At trial, Ullah was convicted under two theories: (a) that he provided material support to ISIS in the form of himself, under a “personnel” theory, and (b) that he performed a “service” in the form of a bombing. Neither survived on appeal.

Ullah’s attorneys argued to the Second Circuit that he could not attempt to provide himself as personnel under the statute because he was not a member of ISIS before the attack, nor did he plan to join afterward in light of the suicidal nature of the attack. Referring to Ullah as a “lone wolf,” they argued that the text of the material support statute explicitly excludes these kinds of attacks from prosecution, citing the statute’s language exempting “[i]ndividuals who act entirely independently of the foreign terrorist organization.” Even though ISIS may have inspired the attempted bombing, Ullah’s team explained, Ullah did not act in coordination with ISIS, and so he fell outside the scope of the material support statute.

The government responded by citing expert testimony elicited at trial that ISIS has a long history of taking credit—and claiming membership of—attackers who martyred themselves in ISIS’s name. This testimony, they contended, allowed the jury to reasonably conclude that Ullah attempted to provide himself to ISIS because he took the extraordinary step of detonating the bomb, regardless of whether he was successful in martyring himself.

The government also cited Holder, in which the Supreme Court held that “service” includes “an act done for the benefit … of another” and highlighted Ullah’s unambiguous confession that the attack was carried out for ISIS’s gain. According to the government, Ullah’s history of consuming ISIS propaganda that urged its followers to carry out attacks further supported the conclusion that he coordinated his attack with the group’s commands.

Majority Opinion

On appeal, the Second Circuit majority, composed of Judge Myrna Pérez and Judge Jed Rakoff, determined the evidence presented at trial was insufficient to convict Ullah under the material support statute. Regarding the personnel prong, the circuit held that “[b]eing inspired by ISIS propaganda and claiming to further ISIS’s cause through his acts do not, by themselves, establish that he acted as ISIS ‘personnel’ as it is defined by the statute and further refined by the Supreme Court’s decision in Humanitarian Law Project.” In particular, the court acknowledged that “ISIS wanted people to do what [Ullah] attempted to do, and [Ullah] attempted his attack intending to further ISIS’s global strategy. But that is not enough to establish that [Ullah] did or attempted to ‘work under [ISIS’s] direction or control’ within the meaning of the statute.” Acting on inspiration alone was insufficient to conclude that a defendant acted under the direction of a terrorist group. Direct contact was likely necessary to meet that standard. The majority found that, lacking that kind of contact here, the defendant acted “entirely independently.” A lone wolf. So the statutory exception applied, and he could not be found guilty under a “personnel” theory of liability.

The court also held the evidence was insufficient to convict Ullah under a service theory, finding the defendant acted “entirely independently” of ISIS. Generally, the court held that, like “personnel,” “service” “covers only acts ‘performed in coordination with, or at the direction of, a foreign terrorist organization.’” The court expanded the service prong by holding that, to meet that definition, a service must be provided “to” a FTO, requiring some nonzero degree of connection between an individual and the organization. Acting on “a terrorist organization’s general exhortation” is insufficient.

The Second Circuit disregarded the government’s argument that the definition of service includes “for the benefit of” a terrorist organization, finding that the “for the benefit of” prong cannot be viewed in a vacuum. Doing so, the majority cautioned, would open up broad swaths of activity to prosecution that the Supreme Court has already excluded from the material support statute. In any event, the majority responded, any benefit must still be provided to the terrorist group through the coordination or direction of the group. In sum, the majority concluded the evidence was insufficient to meet these standards, and so it overturned Ullah’s conviction on the material support charge.

Dissenting Opinion

Judge Steven Menashi disagreed. According to his dissenting opinion, Ullah’s conduct met both the “personnel” and the “services” theories of liability. As for the personnel theory, Ullah did not act merely on “inspiration” from ISIS, but instead received a direction from ISIS and attempted to act under that direction. And that is exactly ISIS’s model of terrorism, according to an expert witness’s testimony at trial: Instead of relying on integrated members in the organization to wage attacks, “the Islamic State puts out messages calling for their supporters to conduct these attacks, as well as literature which provides guidance on how to do some of these attacks.” Simply put, ISIS considers those who carry out attacks in its name “as martyrs, as part of their cause, as well as soldiers of the caliphate.”

The dissent reasoned that the majority reads limitations into the statute about the extent of direction that simply do not exist—both broadly disseminated videos with calls to act and direct messages with calls to act are each examples of directions. Therefore, the dissent concludes, Ullah acted under the direction of ISIS after receiving its call to attack the United States and carrying out that call. Nor did Ullah fall into the “narrow” exception of acting “entirely independently” of ISIS, the dissent stressed. “Even the majority agrees,” the dissent pointed out, “that Ullah attacked the subway station because ISIS instructed its supporters to conduct such attacks.” That is not acting entirely independently, as the statutory exception requires.

Likewise, the dissent found the evidence sufficient enough to conclude Ullah attempted to provide a “service” to ISIS. The disagreement between the two opinions mirrors those under the “personnel” theory, largely revolving around whether the defendant provided a service “at the direction of” ISIS. Again, the dissent explained, the majority read limitations into the statute that do not exist. Nothing in the statute requires the defendant to directly connect with ISIS to provide a service at their direction.

Indeed, the dissent noted, it would be news to Ullah to hear there was no “connection between the service and the foreign group,” harking back to Ullah’s own statements to investigators that he heard ISIS’s direction to attack, he attacked, and he did so on behalf of ISIS. Similarly, nothing in the statute requires the terrorist group to provide some threshold amount of specificity in their direction. The exhortation to attack, the dissent pointed out, was sufficient for Ullah to understand and carry it out. Put differently, the defendant was not a “lone wolf,” but instead an extension of ISIS.

Investigating and Charging Terrorism Cases Moving Forward

The Ullah decision has significant potential implications for each stage of terrorism investigations and prosecutions.

Investigations

At the outset, requiring direct connections to an FTO may shrink the government’s counterterrorism toolkit early in the life of an investigation. That extratextual burden may delay the government from being able to use § 2339B as a predicate statute for search warrants until it can develop probable cause that a subject attempts to or makes contact with an FTO—something that may never occur. Part of § 2339B’s value is that it allows the government to investigate and even charge defendants multiple steps before something goes “boom.” That investigative power earlier on a radicalization timeline can make all the difference, especially when trying to stop someone willing to use regular household items to kill people in his neighborhood. Requiring direct contact effectively removes this statute as a tool to learn when such an attack may occur before it occurs.

The government of course has other statutes available. If the subject attempts to or intends to use certain prohibited weapons, for example, there are federal statutes the government can use as the basis for early legal process to collect evidence. But these are not adequate substitutes for the material support statute. Constraining counterterrorism investigations to only circumstances involving certain weapons, or another independent violation, far undercaptures the ways in which subjects can support FTOs both nonviolently and violently. Section 2339B is tailored so that knowingly supporting a violent FTO is enough to initiate an investigation, regardless of whether an actor has taken physical steps, such as building a bomb, to support it. By limiting the scope of the warrant, the evidence the government is allowed to search for, and seize, is also limited.

Another tool the government may increasingly turn to after Ullah is the sister charge of providing material support to terrorists under 18 U.S.C. § 2339A, also charged in Ullah. Section 2339A requires the knowing provision of support, which can include personnel or services, to a list of enumerated statutory violations, all of which are considered acts of terrorism. While this statute provides the kind of breadth and early intervention opportunities akin to § 2339B, it still introduces a higher mens rea burden of needing to prove the defendant knowingly and intentionally provided the material support with the knowledge that it would be used to commit one of the enumerated terrorist acts. If no evidence of those specific predicate acts exists, § 2339A will not be available, removing both of the material support statutes in the counterterrorism toolkit.

Finally, most concretely, terrorist organizations often emphasize communication using encrypted applications—such as Telegram. Encrypted communications are often not captured in search warrant returns because the information is stored locally as opposed to on a provider’s servers. Establishing a direct connection is therefore no easy task and may require more overt steps—such as obtaining a search warrant for physical devices—or more extensive use of classified information. Both carry significant risks of either revealing an investigation too early, leading to the potential deletion of evidence by the subject or co-conspirators, or burning intelligence tools by declassifying evidence.

Charging

In personnel or services cases, where there is often no evidence of contact or attempted contact, the government will face a steeper climb to prosecution, absent other charges.

The successful prosecution of Thomas Osadzinski in the Northern District of Illinois is a helpful illustration of a conviction that could not have been brought under Ullah and where the government had no other charging option except § 2339B. Osadzinski, a DePaul University student, was convicted of attempting to provide material support—in the form of services—to ISIS for writing a computer script that would copy and repopulate ISIS propaganda on Telegram.

Osadzinski detailed his intent in a document titled “Operation: Heralds of the Internet,” in which he explained his desire to provide services directly to ISIS’s official media outlets. While Osadzinski communicated his plan to multiple undercover FBI agents, the government did not introduce evidence that Osadzinski was in direct contact with ISIS members. Rather, like in Ullah, the government’s evidence established that ISIS had instructed its followers to engage in “media jihad” and that Osadzinski cited and followed the instructions broadcast by ISIS.

Osadzinski appealed his conviction, arguing in part that the material support statute was unconstitutionally vague as applied to him because a reasonable person would not know that “independently downloading, organizing and even sharing ISIS-related videos with others is an act of terrorism.” The U.S. Court of Appeals for the Seventh Circuit held that Osadzinski followed the directions provided by ISIS in its messaging to its followers.

Osadzinski acted in response to what he perceived to be a solemn directive from ISIS contained in the Inside 8 video: “Support your khilafah on the digital front” by “adopt[ing] the messaging put out by its official media,” and “striv[ing] to disseminate it far and wide.” In discussions with the undercover law enforcement agents, he explicitly referenced Inside 8’s directive: “[I]f they close one account, open another three. And if they close three, open another 30.” And he sought to do just that. For months, Osadzinski labored diligently to answer ISIS’s call for help in waging its media campaign.

In cases like Osadzinski, where there is no evidence of direct contact with the FTO, or attempt at direct contact, no conspiracy, and no other potential charges, under Ullah, the government could not go forward with a prosecution. The consequences of this are that avowed and active supporters of terrorist groups may be able to continue that support without consequence.

Discovery

The Ullah verdict may also have far reaching implications regarding discovery and, consequently, the government’s ability to bring a case in the first instance. In national security cases, prosecutors check with organizations that are part of the U.S. intelligence community, like the CIA, National Security Agency, and others, to determine if those organizations have any information that is discoverable and required to be produced to the defendant. If the prosecutors find no relevant and helpful information, then there is nothing to produce. After Ullah, the contours of what is “relevant and helpful” may now change.

The intelligence community’s lack of information illustrating direct connections may now be relevant and helpful for the defense to show that a defendant did not act under the direction or control of an FTO. Admitting what the federal government does not know, however, may inform FTOs and other bad actors of potential vulnerabilities or gaps in U.S. intelligence coverage. So it is possible that intelligence agencies will not allow prosecutors to produce that kind of absence of information. This potentially sets up a conflict between the intelligence community and prosecutors, who may now need to disclose this information to satisfy their statutory and constitutional obligations.

The Current Threat

What makes these limitations especially troubling is that they coincide with a stage of terrorism increasingly carried out by actors radicalized and acting on ISIS’s calls to action without direct contact with the group. Nearly 200 defendants were charged with material support of terrorism for ISIS-related activities since the terrorist group’s inception in 2014. In the post-caliphate period, from April 2019 until today, only 35 percent of ISIS supporters charged in the U.S. attempted to travel to join the group, with the other 65 percent focusing their activities in the United States. In our collective experience, many cases did not involve direct communications with an FTO, but the subject was nevertheless assessed to be a significant national security risk.

In fact, in the nearly four years it took for the Second Circuit to rule, multiple attempted or successful attacks were carried out by individuals acting in the name of ISIS. On New Year’s Day in January 2025, a man rammed his car into crowds on New Orleans’s iconic Bourbon Street, killing 14. The attacker did not appear to have directly connected with ISIS, but the FBI reported that he was “100% inspired by ISIS”—a claim ISIS supported in its own statement after the attack. In December 2025, a Charlotte teenager plotted to commit a suicide attack on New Year’s Eve and unilaterally stated he was a “soldier for the state,” referring to the Islamic State. And in March 2026, a 26-year-old man, who had been previously convicted of § 2339B(a)(1) in 2016, killed an ROTC instructor during an attack at Old Dominion University.

In these last two examples, the subjects may have been in direct contact with ISIS operatives years earlier, but it does not appear they had such contact anywhere near the time of their planned attacks in the name of ISIS. The Second Circuit’s decision in Ullah, essentially requiring direct contact with foreign terrorist organizations to provide them material support, would likely prevent the government from being able to charge these actors under § 2339B.

Even more troubling, younger actors who are more “online” and less obviously connected to terrorist groups are making up more of ISIS’s supporters, yet may now be more able to commit acts of violence in the name of terrorist groups before they are caught. As Jacob Ware writes, the digital forum “has eviscerated geographical barriers between extremist groups and movements and their potential recruits.” A February 2025 study from the Combating Terrorism Center (CTC) at the U.S. Military Academy at West Point analyzed nearly 100 online ISIS networks and over 25 recent ISIS arrests around the world, and found that:

As an older generation of Islamic State ideologues, fighters, and propagandists dies out or is arrested ... a younger cadre of supporters is taking up the mantle of support for the group. They are forming the backbone of an unofficial ecosystem of Islamic State support spread across platforms, while evading takedowns and producing unsanctioned content in the name of the group.

Detailing ISIS’s “digital caliphate,” the study concluded that “playing a central part in all of these arrests was the role of the internet, and specifically the Islamic State’s reach across the open web and the vital role its communities of support online play in radicalization and attack planning and preparation.” Recent reports by the United Nations Analytical Support and Sanctions Monitoring Team, concerning ISIS, al-Qaeda, the Taliban, and other associated groups, document rising concerns around “radicalized individuals” who were “often younger, some being minors, with direct or indirect connections” with terrorist groups “through online encrypted messaging platforms,” as well as the expansion of terrorist groups’ “use of digital platforms.”

Terrorist groups like ISIS know this. As the CTC study notes, “Online, the Islamic State continues to expand the boundaries of its valuable internet ecosystem, connected through social media platforms such as Facebook, Instagram, TikTok, and X as well as messaging applications such as Telegram, WhatsApp, RocketChat, and Element.” And the unofficial accounts go further, spreading ISIS’s calls to action to anyone with an internet connection. They not only use platforms familiar to young people but also create the content these followers seek to consume in an internet culture and hyper-online language they understand.

As large language models of artificial intelligence (i.e., Anthropic’s Claude, OpenAI’s ChatGPT, Microsoft’s Gemini) become more accessible and capable, terrorist groups like ISIS and their online supporters may only become more empowered in creating and spreading content to reach and radicalize others into action without ever making contact with them. Viewing these actors with this expansive digital ecosystem behind them, it becomes clear why the term “lone wolf” is a misnomer—one that may lead to court decisions like Ullah. Requiring direct contact in order to be found guilty of acting under the direction of a group like ISIS misreads the statute as the dissent explains, but it also misunderstands how the group now operates—all of which hinders the government’s ability to keep pace with increasingly inexpensive, decentralized models of terrorism.

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Section 2339B is the bread and butter of the Department of Justice’s terrorism charges. And, until now, it was a useful counterterrorism tool to combat foreign terrorist organizations that have adjusted to a crowdsourcing model of enacting violence on a wider scale around the globe. Ullah may limit the government’s ability to stop those who take up the call to commit acts of violence in the name of ISIS or other groups, as defendants based in the U.S. have rarely taken personal direction from, or coordinated with, the leadership or members of these terrorist organizations.

The future of Ullah is uncertain. For now, there is a split in the courts, at least between the Second and the Seventh Circuit Courts of Appeals. Potentially illustrating just how impactful the opinion is, both the government and Ullah’s defense attorneys have filed for the full Second Circuit to rehear the case en banc. Ullah’s attorneys seek a resentencing, while the government reiterates the arguments made in Judge Menashi’s dissent. Will the full Second Circuit or other circuits follow Ullah? Whether other circuits follow or not, will the Justice Department make Ullah the standard for personnel and service cases nationwide?