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The Court concludes that, for the purposes of Section 2339B, a person is to be deemed part of an FTO if that person is engaged in significant activity on behalf of an FTO relative to that FTO's goals and objectives, a determination to be made on the basis of all of the facts and circumstances pertaining to an individual's relationship with an FTO. To determine whether and to what extent a particular individual is acting on behalf of an FTO, in this case al-Shabaab, the Court has considered the following non-exclusive (and somewhat overlapping) factors: (1) the nature of the assistance provided or received by the individual (whether lawful or unlawful) and how it benefitted the FTO or otherwise advanced its goals and objectives; (2) for what time period the support or resources were provided; (3) whether the individual undertakes his or her activities specifically and exclusively for the benefit of the FTO or whether the individual undertakes similar activities for other organizations or for the public at large; (4) the degree to which the individual's actions are directed by or coordinated with others associated with the FTO or any of its generally recognized representatives; (5) the nature and extent of the individual's contacts within the FTO or with others acting on behalf of the FTO, including access to the FTO's leadership and to non-public information pertaining to the FTO's activities; (6) whether the individual self-identifies with the FTO, represents himself or herself as being part of the FTO, or purports to act on behalf of the FTO; and (7) whether the individual is reliably identified as being part of an FTO by recognized international law enforcement or other organizations. Rarely would the evidence bear on all, or even most, of these factors. In some cases, there may be sufficient evidence in just one of these categories to demonstrate an adequate link between a person and an FTO so as to establish that the individual undertook significant activities on behalf of the organization and should therefore be deemed part of that organization.
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1) This appears to be the only case, as of 8/2019, clarifying that that the criminal "material support" statute of the AEDPA [1] covers the "indirect" provision of support to FTOs, including to persons and entities acting on behalf of FTOs. Given that no factor listed by the court is dispositive, the logic of the opinion could, in theory, extend to dealings with ostensibly independent Iranian entities linked to the IRGC. There is, however, no reason to believe that the criminal statute could apply in the absence of knowledge, of a sort capable of satisfying the heightened knowledge standards applicable in the criminal setting, that a given person is acting on behalf of the IRGC (or any other FTO). In that regard, note that "knowingly," as the term is used in the context of the material support statute [2], is not the same as "knowingly" as defined by OFAC for the purposes of sanctions regulations, which effectively encompasses all failures to adhere to OFAC's due diligence expectations. See General Note on the terms "knowingly," "should have known" and "reason to know" in the Primary Sanctions, Secondary Sanctions and Derivative Designation Contexts (System Ed. Note). In the criminal context, "knowingly" entails legitimate criminal intent.
2) See also Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), and comments thereto, discussing the boundaries of the term "service" within the meaning of the statute, and DOJ Letter to Senate in re: Material Support Statute (2011).
[1] See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); Sec. 302, 303, 321.
[2] "Whoever knowingly provides material support or resources to a foreign terrorist organization..."