The Second Circuit reversed a material support conviction under 18 U.S.C. § 2339B where a lone-wolf attacker discharged an explosive after consuming ISIS propaganda online, adopting ISIS slogans, and telling investigators he acted “on behalf of the Islamic State” – but having no actual connection to or relationship with ISIS. On this evidence, the majority held the government failed to prove Ullah, represented by this Office, provided “material support” to ISIS. He “act[ed] entirely independently” of ISIS to advance its goals — conduct Congress expressly excluded from § 2339B’s reach. His concurrent life sentences on five other terrorism counts are undisturbed.
Section 2339B criminalizes providing “material support or resources” to a designated foreign terrorist organization, including “personnel” and “services.” But § 2339B(h) limits the personnel prong to individuals who “work under that terrorist organization’s direction or control,” and expressly excludes “[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives.”
The question was whether a self-radicalized person who responds to broadcast propaganda — with no operational contact, coordination, or two-way communication with the organization — falls within the statute or within the exclusion. The government proceeded on both a “personnel” theory (Ullah provided himself) and a “service” theory (he “served” ISIS via the bombing itself).
The Court held the evidence insufficient to sustain a material-support conviction under either theory.
On personnel, the Court found that watching publicly available videos is not acting “under” someone’s “direction or control” in any ordinary sense of those words: “[A] person cannot ‘work under [ISIS’s] direction or control’ if he is acting alone, and if ISIS does not know he exists, has no expectation he will hear ISIS’s messages or act on them, and will not know, or care, or have any recourse if he ignores the message completely.” Op. at 15. The independent-actor exclusion would be meaningless otherwise.
The Court leaned on Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), which held that § 2339B “reaches only material support coordinated with or under the direction of a designated foreign terrorist organization,” and with legislative history showing that the same 2004 legislation (IRTPA) that added the independent-actor exclusion to § 2339B simultaneously amended FISA to cover lone wolves acting “on inspiration rather than affiliation” — demonstrating that Congress knew how to reach actors like Ullah and chose not to in the material support context. Op. at 23-24.
On the “service” theory, HLP was dispositive: “service” covers only acts “performed in coordination with, or at the direction of, a foreign terrorist organization.” Id. at 28. HLP also held that “the term ‘service’ in § 2339B cannot cover conduct that is specifically excluded by the statute’s definition of ‘personnel.’” Id.
Prior § 2339B convictions affirmed (in Farhane and Pugh from the Second Circuit and in Alebbini from the Sixth) are distinguishable because those defendants attempted to join the organization or coordinate directly with its operatives. Id. 26-27. Finally, if any ambiguity remains in the statutory definition, “we would nonetheless be compelled by the rule of lenity to resolve that ambiguity in Defendant’s favor.” Id. at 28.
The dissent (Menashi, J.) argued the majority collapsed the disjunctive “direction or control” into a single concept, rendering “direction” superfluous. ISIS provided “guidance” through its videos; Ullah followed that guidance. And the word “entirely” in the exclusion (“individuals who act entirely independently”) sets a high bar that Ullah plainly did not meet: “If the supporter acted mostly or largely independently of the foreign terrorist organization — but not entirely independently — then his conduct is not protected from liability.” (Dissent at 9.)