Accountable Altruism: The Impact of the Federal Material Support Statute on Humanitarian Aid

Abstract

Humanitarian groups face a dilemma after the Supreme Court’s decision in Humanitarian Law Project v. Holder (HLP) upholding Congress’s prohibition on “material support” to designated foreign terrorist organizations (DFTOs). Prohibited material support could include mainstays of humanitarian aid: tangible assistance such as food and building materials that a DFTO diverts from intended recipients, as well as advice on conflict resolution that aid groups provide to further peaceful outcomes. Aid groups complying with the statute’s restrictions might appear to be taking sides, thus violating the principle of neutrality. Aid officials that ignore the statute expose their group to criminal prosecution. This Articles argues that aid groups and the United States government can agree on a regime of tailored accountability that avoids these stark scenarios. To buy into this regime, aid groups would have to recognize the merit of the HLP Court’s finding that DFTOs exploit humanitarian aid and advice. The Court’s warning dovetails with an internal critique of humanitarian activities during the Rwandan genocide, when fighters converted humanitarian aid into logistical support. Aid groups knew this, but competition for media attention and donor dollars sparked a race to the bottom. In a regime of tailored accountability, the government would also have to recognize that humanitarian aid alleviates suffering and enhances the United States’ soft power. Reconciling these interests, a tailored accountability regime provides a safe harbor for aid groups that engage in vigilant self-regulation, and also expands the waiver provisions of the material support statute to include food, lodging, and other forms of tangible assistance. This tailored regime would reduce the agency costs and collective action problems that plague humanitarian aid, and preserve the neutrality and efficacy of aid under international law.