18 U.S.C. § 2390 – Enlistment to serve against United States

18 U.S.C. § 2390 – Enlistment to Serve Against the United States

18 U.S.C. § 2390 is a federal law that makes it illegal for anyone to enlist or engage “with intent to serve in armed hostility against the United States.” This law essentially criminalizes joining or enlisting in a force that is planning to fight against the U.S. government. Let’s break down the key aspects of this law.

The Law Itself

The text of 18 U.S.C. § 2390 states:

Whoever enlists or is engaged within the United States or in any place subject to the jurisdiction thereof, with intent to serve in armed hostility against the United States, shall be fined under this title or imprisoned not more than three years, or both.

So in plain English, this means that if someone enlists or joins a group that intends to use weapons to fight against the U.S., they can be fined and/or imprisoned for up to 3 years. The law applies to both U.S. citizens as well as non-citizens who are in the U.S. or in a place under U.S. jurisdiction.

Background and Purpose

This law was enacted in 1948 as part of the federal criminal code. The purpose is to criminalize joining or supporting forces that seek to violently oppose the United States government. It allows the government to prosecute individuals who join anti-U.S. militant groups before any actual hostilities occur.

This law is related to other federal laws prohibiting treason, rebellion, and sedition. However, § 2390 does not require prosecutors to prove treasonous intent or conspiracy like other similar laws do. It simply requires evidence that the defendant intended to join or support a force in armed hostility against the U.S.[4]

Key Elements of the Crime

For a defendant to be convicted under § 2390, the government must prove these key elements:[3]

• The defendant voluntarily enlisted or engaged with a group, organization, or force
• That group, organization, or force was planning to engage in armed hostility against the U.S. government or U.S. forces
• The defendant knew about the planned armed hostility when they enlisted or engaged with the group
• The enlistment or engagement took place within the U.S. or an area subject to U.S. jurisdiction

The key issue is typically whether the defendant knew about the planned hostility when they joined up. This is often proven through the defendant’s own statements or records of their activities.

Punishment and Sentencing

A conviction under this statute can result in:

• Up to 3 years in federal prison
• Fines under the federal sentencing guidelines
• Both fines and imprisonment

In determining a specific sentence, courts will consider factors like the defendant’s criminal history, their role in the offense, and whether they accepted responsibility. Defendants often receive lighter sentences by cooperating with prosecutors or pleading guilty.[2]

Relation to Treason Laws

This law is related to federal treason laws, but has some key differences. Treason requires intentionally betraying the U.S. or aiding its enemies. § 2390 does not require proving treasonous intent or conspiracy against the government. It only requires that the defendant intended to join or support a force in armed hostility against the U.S. So § 2390 sets a lower bar for conviction.[5]

Famous Cases

There have been a number of high-profile prosecutions under this statute, including:

• U.S. v. Mehanna (2012) – Tarek Mehanna was convicted of conspiracy to provide material support to al-Qaeda and other terrorism charges. Prosecutors presented evidence that he discussed going to Yemen to receive training from al-Qaeda.
• U.S. v. Abu Khatallah (2014) – Ahmed Abu Khatallah was accused of leading the 2012 attack on the U.S. consulate in Benghazi, Libya. He was charged with providing material support to terrorists under § 2339A and § 2390 for enlisting in Ansar al-Sharia, a militant group that participated in the attack.

These cases illustrate how § 2390 can be used to prosecute individuals who join or support foreign militant groups that target the U.S. and its interests abroad.

Criticisms and Controversies

There has been some criticism of 18 U.S.C. § 2390 from civil liberties groups. Some of the main concerns include:

• The law may infringe on free speech and freedom of association rights by criminalizing membership in certain groups
• It does not require proving that the defendant committed any violent acts, only that they intended to join or support a hostile force
• It could potentially be abused to target political dissidents or activist groups that oppose government policies but do not actually engage in violence
• The 3-year maximum sentence may be disproportionate for cases where no terrorist act is committed

However, prosecutors argue this law is necessary to prevent violence and allow early intervention against individuals who join anti-U.S. militant groups. Overall, courts have upheld convictions under § 2390 when applied to defendants who clearly sought to join groups planning violence against the U.S.

Defenses

There are several legal defenses that can be raised against charges under this statute:

• Lack of intent – The defendant can argue they did not actually intend to join or support a force in armed hostility against the U.S. when they engaged with the group.
• Entrapment – The defendant may claim they were induced or pressured to join the hostile group by government agents.
• Duress – The defendant can allege they only joined due to threats of force against themselves or loved ones.
• Free speech – The defendant can claim their association with the group was protected political speech, not illegal support of violence.

However, these defenses are often difficult to establish given the broad conduct prohibited under § 2390.

Conclusion

The federal law 18 U.S.C. § 2390 prohibits joining or enlisting in groups that engage in armed hostility against the United States. It has been used to prosecute individuals who join or assist foreign terrorist organizations that target U.S. interests. However, critics argue it gives the government too much power to infringe on civil liberties in the name of national security. Despite these concerns, § 2390 remains an important tool for combating anti-U.S. extremist groups and preventing violent attacks.