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In the 1950s, we were afraid of communism. We were afraid, in particular, of the Soviet Union, the world's second greatest superpower, which was armed with masses of nuclear warheads aimed at all our largest cities. As a result, we fought the Cold War, engaged in espionage, proxy wars, and an arms race. We also took aggressive preventive measures at home. The principal preventive measure of that period was guilt by association. We made it a crime to be a member of the Communist Party, and we created a whole administrative scheme to implement and enforce this notion of guilt by association.

Today, the threat is terrorism, not communism. And as a doctrinal matter at least, guilt by association is barred by the First and Fifth Amendments. But we nonetheless see a remarkably similar reaction in place. Instead of targeting association expressly, the government targets "material support" for terrorist organizations. But the essential features of this prohibition are the same. The government employs an extremely broad criminal substantive standard--material support--which encompasses any activity in association with a group classified as a terrorist organization. Giving the organization money is the most obvious example of material support, but even the volunteering of one's time also constitutes material support.

Publication Citation

Am. U. L. Rev. 1212-1217 (2008)