Can ISIL Supporters Be Prosecuted for Providing Material Support to AQI?

DOJ sent out a notice earlier today involving yet another ISIL-related material support case, this one involving a California man who had hoped to get to Syria in order to join ISIL (United States v. Dundach). He has pled guilty to one false-statement charge, and one charge of material support to ISIL in violation of 18 USC 2339B. All of which is interesting in itself, if only as (i) another example in the wave of similar cases from recent months and (ii) another example of a prevention-oriented, terrorism-related case amply handled by the civilian criminal justice system. But I'm posting on it now because of an obscure feature of the case that could have (but did not) precipitated a judicial ruling on a question that previously has generated attention only in connection with the 2001 AUMF: Does ISIL properly count as al Qaeda, as the administration has claimed in the AUMF context?

The Dundach case implicates that question not as to the AUMF, but instead as to the State Department's process for formally designated certain groups as foreign terrorrist organizations. Once so designated, it becomes a crime to provide material support to the group under 18 USC 2339B (and it thus is not necessary to show the defendant intended that the support be used to facilitate certain specific types of crimes as is required under 18 USC 2339A). As I understand it, ISIL received its designation in May 2014, in a move that formally replaced the preexisting designation of al Qaeda in Iraq. Well, some of Dundach's conduct pre-dated that change, and some of it post-dated the change. In light of that latter fact, Dundach was unlikely to get anywhere in challenging the relevance of 2339B. But what if his conduct in support of ISIL had entirely pre-dated the switch? He then might have moved to dismiss the charge, arguing that ISIL was not AQI at the time of his conduct. This would have created an opportunity for a judge to weigh in on a version of the inheritance/organic-successor argument that has been central to the administration's claim that the 2001 AUMF applies to ISIL.

It's not the exact same question, to be sure, but it is closely-related. Now, to be clear, I'm not suggesting that the right answer is that ISIL had ceased to count as AQI in late 2013-early 2014. I think a judge most likely would reject that argument, in fact. Still, it would be interesting if it were to be litigated in a criminal case; it certainly is not going to be litigated as to the AUMF, it seems.

From DOJ’s press release on Dundach's guilty plea:

Adam Dandach, 21, of Orange, California, pleaded guilty today to a two-count second superseding information charging him with attempting to provide material support to the Islamic State of Iraq and the Levant (ISIL) and making a false statement in a passport application….

“Adam Dandach attempted to travel to Syria to provide material support to ISIL, and lied in his passport application in order to do so,” said Assistant Attorney General Carlin. “One of the National Security Division’s top priorities remains stemming the flow of foreign fighters and bringing to justice those who seek to provide material support to foreign designated terrorist organizations.”

… Dandach admitted, pursuant to court documents, that beginning in approximately November 2013 and continuing until July 2, 2014, he attempted to travel to Syria to join ISIL with the purpose of providing material support to the designated foreign terrorist organization. He further admitted that he knew that ISIL was a designated foreign terrorist organization that engaged in terrorist activity and terrorism.

According to court documents, on July 1, 2014, Dandach purchased a ticket to fly from Santa Ana, California, to Istanbul. The FBI intercepted Dandach at the John Wayne International Airport the following day. Dandach told FBI special agents that his ultimate destination was Syria and that he intended to pledge allegiance to ISIL’s leader, Abu Bakr al-Baghdadi. He explained that he wished to live under the control of ISIL and intended to undergo weapons training.

Dandach also admitted that he made a false statement in a passport application, namely that he had lost his previous passport. In fact, a family member had taken Dandach’s passport from him during the previous year when he expressed an interest in traveling to Syria.

Dandach faces a statutory maximum sentence of 15 years for providing material support to a designated foreign terrorist organization and a statutory maximum sentence of 10 years for making a false statement in a passport application. A sentencing hearing is scheduled for Jan. 11, 2016. ….