Hamas relies on two strategies to wage its war of annihilation against Israel: heinous brutality and PR from sympathetic Westerners. It tries to make Israelis’ lives hell in hopes that the Jews will simply give up on living in their ancestral homeland, and then maximizes Palestinians’ suffering — real and imagined — so the West will force Israel to stop fighting the terrorists bent on its destruction. Re-arm and repeat.

On those criteria, the State-designated foreign terrorist organization (FTO) had a good week last week. New York Times columnist Nicholas Kristof preempted a painstakingly researched report on the unfathomably cruel barbarism Hamas inflicted on Israeli civilians on October 7, 2023, by publishing an essay on Israel’s “systematic sexual violence…widely practiced as part of an organized state policy” against Palestinians. If Israel does indeed train dogs to rape Palestinian prisoners, then perhaps it’s fair to conclude, as Kristof did, that “The horrific abuse inflicted on Israeli women on Oct. 7 now happens to Palestinians day after day.”

Such a conclusion does exceptional PR for Hamas. Drawing an explicit moral equivalency between Hamas and Israel, it is designed to cause Americans to abandon their support for the Jewish state, a crucial stratagem for the terrorist group in its long war of attrition.

Perhaps that’s not a coincidence. At least two of Kristof’s sources for the essay appear to be Hamas-affiliated. If so, Kristof has likely committed a serious federal crime.

American anti-terrorism laws are designed to be extremely broad. Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 to prohibit the provision of “material support” to designated FTOs. Material support includes many things, including money, personnel, and in-kind benefits known as “services.”

Our material-support laws can even criminalize some behavior you might expect to be protected by the First Amendment. In the famous 2010 case, Holder v. Humanitarian Law Project, the Supreme Court ruled that even providing legal advice to a designated FTO could be prosecuted — even if the advice only helped the terrorist group engage in legitimate, non-criminal activity. A 6-3 Court reiterated Congress’s finding that terrorist groups “are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.”

The Court took pains to emphasize that “independent advocacy” for a cause is protected freedom of speech, but not all speech necessarily counts as independent: “a person of ordinary intelligence would understand the term ‘service’ to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.” Such advocacy could be criminally prosecuted.

That appears to describe exactly what Kristof did. His advocacy clearly provides an important service to Hamas — a crucial part of its criminal enterprise, even if the service itself would not be a crime if done independently. That much is clear from Kristof’s reliance on a group called Euro-Med, which provided the quote about Israel’s “state policy” of authorizing “sexual violence” and other grotesque details Kristof retells as fact.

Kristof calls Euro-Med “critical of Israel.” That understates it a bit. Euro-Med has been the source of a host of conspiracy theories about Israel, including the accusation that Israel has been vaporizing Palestinians and digging up graves to harvest Palestinian organs. If that seems like the kind of Big Lie straight out of Hamas’s playbook — and the kind that could start a rumor about Israel training dogs to rape prisoners — that’s no coincidence.

Euro-Med’s current and former chairmen have been listed as Hamas operatives for over a decade. Its founder, Ramy Abdu, has been a regular panelist at Hamas events, often appearing alongside senior Hamas leaders, including Osama Hamdan. Abdu’s brother-in-law was a known Hamas operative; his brother was recently arrested in Italy for funneling money to Hamas.

The repeated uncritical quotations of Euro-Med are suspicious enough. But the kicker is the first-named source in Kristof’s piece. Sami al-Sai claims he was sexually assaulted by Israeli prison guards after he was detained in 2024. What Kristof does not mention is that al-Sai was detained for being a member of Hamas. Al-Sai has admitted that he has done projects on Hamas’s behalf. Even other Palestinian groups have accused him of serving as a recruiter for the terrorist group. Not giving readers a sense of al-Sai’s background, which is quite relevant to his reliability, reflects poorly on Kristof’s journalism. But more so, meeting with a member of Hamas before advocating on his, and by extension, his organization’s behalf could be prosecuted as a criminal offense.

To be clear, Kristof does not admit to working together with Euro-Med in any way, so it would be difficult to prove material support for terrorism through Euro-Med on the basis of the existing public record. Further investigation could turn up evidence of closer collaboration. But Kristof’s meetings with al-Sai and subsequent advocacy that explicitly and repeatedly draw moral equivalencies between Hamas and Israel in a way that advances Hamas’s interests may be enough to warrant a material support prosecution. Whether Kristof’s essay constitutes a crime may come down to whether al-Sai is a member or representative of Hamas. The public record suggests there may be enough evidence to convince a jury.

To many Americans, this suggestion will seem like a massive First Amendment violation. How can an essay constitute a crime? The answer is that the First Amendment does not do what so many Americans think it does. It does not protect all expressive conduct, or even all journalism. Significant national security concerns, such as starving terrorist groups of all support, can outweigh protections for speech. Indeed, a hypothetical prosecution of Kristof is not far off from what Holder contemplates. And as the Department of Justice under President Donald Trump has made clear, no one gets a free pass to commit illegal activities by claiming journalist immunity.

Aiding the world’s most heinous organizations is illegal, no matter what prestigious institution you work for, or whether your aid came in the form of words. You can engage in independent advocacy, but as soon as you start meeting with apparent members of terrorist groups, you have invited legal trouble. Whether that trouble comes in the form of a criminal indictment remains to be seen — but if it does, no one should be terribly surprised.

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Tal Fortgang is a legal policy fellow at the Manhattan Institute.

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