Is it possible to be in violation of 18 USC 2339 accidentally?

Question

During its military operation to reduce Hamas' military capabilities, Israeli airforce destroyed an office complex in Gaza. Israel has claimed that it had absolutely certain information that Hamas' military targets were housed in that building. The building was an office building with a number of tenants. Among them were offices of the Associated Press news agency.

This has caused a controversy. While AP acknowledges that they have been warned of the impending attack on the building and have been given time to evacuate, they maintain that they have had no knowledge of any Hamas properties or personal in the building. Because Hamas is a designated terrorist organization, 18 USC 2339 may be applicable.

From my reading of 2339 (Harboring or concealing terrorists), AP may be exposed unless they have had firm knowledge that no part of the building was used by Hamas. The problem is that, as a news agency reporting on military activities around the entire globe, it strains credulity to suggest that they would not be aware of Hamas operating in the same building with them.

If Israel can provide evidence, which can be certified as genuine by the FBI, that Hamas did operate out of that same building, would that lead to a criminal exposure for AP? Would the issue of whether they actually knew have to be decided at trial or would it even matter?

Answer 1

Mere co-occupancy as a fellow tenant of a building owned by a third-party, without more, does not amount to harboring or concealing, the action that the statute in question criminalizes. Mere inaction does not establish criminal liability under this statute. The statute does not require the AP to actively gather intelligence for the U.S. government, or to engage in conflict with the neighbors of its offices.

Answer 2

No.

One cannot accidentally violate 18. U.S.C. § 2339, because "harboring or concealing" a terrorist implies deliberate actions. Although the terms are undefined in the statute, a court looking to interpret them would likely rely on the fairly rich body of case law surrounding the more general harboring-and-concealing statute, 18 U.S.C. § 1071.

There is little dispute that that statute requires that the defendant actually had a purpose to harbor or conceal the person in question. United States v. Lockhart, 956 F.2d 1418, 1423 (7th Cir. 1992) ("[T]he government had to establish ... that Lockhart intended to prevent Mathews's discovery and arrest.")

Further, the Second Circuit -- where AP is headquartered -- also requires that the charge be based on "some physical act tending to the secretion of the body of the offender." United States v. Shapiro, 113 F.2d 891, 893 (2d Cir. 1940).

And the courts will not accept the failure to disclose information as the basis for a conviction. United States v. Foy, 416 F.2d 940, 941 (7th Cir. 1969) ("While there are many negative or passive acts which would fall within the statutory prohibition, we do not think that a failure to disclose the location of a fugitive is the type of assistance contemplated by ‘harbor and conceal’ as used in § 1071."). This policy has even greater force in the AP's case, where the allegation is that AP knew about Hamas operations but refused to report on them; because imposing liability based on that decision would be an "intrusion into the function of editors," it would likely run afoul of the First Amendment. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).

Separately, it is unlikely that these facts could support a conviction, as the statute does not care about the third party's designation as a terrorist, but rather asks whether the third party has committed one of the enumerated offenses. I'm not any kind of expert on Hamas, but I'm not confident that it's committed any of those offenses, which I believe are all focused on attacks against the United States, rather than any foreign nation. (Perhaps incidental injuries to Americans in Israel would be sufficient, though.)