The subsequent chapters more fully explore the FTO process and the designation decisions made since 1997. Chapter II outlines the current FTO designation procedures. Chapter III examines the state of the current literature on FTOs that, for the most part, criticizes the current process without a detailed analysis of the FTO decisions.
Chapter IV outlines the quantitative and qualitative analysis used in this research, beginning with Chapter V’s exploration of the terrorist organization lists used by allied countries. The FTO list is analyzed in great detail in Chapters VI and VII, which include a review of the FTO designations before and after 9/11, the recent designations made in 2013 and early 2014, the dormant or inactive FTOs on the list, and the delisted organizations. Through this analysis, the nonstatutory factors that influence the FTO decisions are identified.
Chapter VIII evaluates the FTO decisions in the complex counterterrorism environment. Chapter IX examines the relevance of the FTO decisions to U.S. counterterrorism strategy and concludes that the factors used in the FTO decision-making process is, in fact, the mechanism through which the United States defines terrorism at any point in time. Chapter X concludes with recommendations to assist in addressing the criticisms of the FTO process found in the literature. The recommendations are aimed at offering clarity and transparency to the FTO decisions made by the Secretary of State.
II.
BACKGROUND: THE FTO DESIGNATION PROCESS
The world is not going to be saved by legislation.
—William Howard Taft, 27th U.S. President
The secretary of state is authorized to designate an organization as a “foreign terrorist organization” if three conditions exist.
1. The organization is a foreign organization.
2. The organization engages in terrorist activity, or retains the capability and intent to engage in terrorist activity or terrorism.
3. The terrorist activity threatens the security of U.S. citizens or the national security of the United States.27
Criminal penalties apply to anyone who knowingly provides “material support or resources”28 to a designated FTO, deportation consequences apply to representatives and members of a designated FTO,29 and assets may be frozen.30
The FTO list is aimed at: (1) curbing terrorism financing and encouraging other nations to do the same, (2) stigmatizing and isolating designated terrorist organizations internationally, (3) deterring donations or contributions to and economic transactions with named organizations, (4) heightening public awareness and knowledge of terrorist organizations, and (5) signaling to other governments our concern about named organizations.31
27 The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA); 8 U.S.C. § 1189 (a) (1). 28The term “material support or resources” is defined in 18 U.S.C. § 2339A(b)(1) as “any property,
tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who maybe or include oneself), and transportation, except medicine or religious materials.”
298 U.S.C. §§ 1182 (a)(3)(B)(i)(IV)-(V), 1227 (a)(1)(A).
30 18 U.S.C. § 2339B(a)(2). (U.S. financial institutions possessing or controlling any funds in which a
designated FTO or its agent has an interest are required to block all transactions involving those funds).
31 U.S. Department of State, “Foreign Terrorist Organizations.”
Once an organization is identified as a potential FTO, the State Department prepares a detailed “administrative record” on the organization, which contains a compilation of information, typically including both classified and open source information, which demonstrates that the statutory criteria for designation have been satisfied.32 The process requires the State Department, Department of Treasury,
Department of Justice, and the intelligence community to collaborate in providing relevant information and in evaluating the information collected. Designations normally occur after an involved interagency process; but the secretary of state makes the ultimate decision.33
If the secretary of state, in consultation with the attorney general and the secretary of the treasury, decides to make the FTO designation, Congress is notified of the secretary’s intent to designate the organization seven days before the designation is published in the Federal Register, as section 219 of the Immigration and Nationality Act requires. Upon the expiration of the seven-day waiting period, and in the absence of Congressional action to block the designation, notice of the designation is published in the Federal Register, at which point the designation takes effect. The FTO designations remain in effect until set aside by judicial review, an act of Congress, or repeal by the secretary of state.34
Organizations can be removed from the list at any time. The Secretary may revoke a designation upon determining either that the circumstances that were the basis for the designation have changed, or that the national security of the United States warrants a revocation of the designation.35 The secretary must review each designation at
32 U.S. State Department, “Terrorism Designations FAQs, Fact Sheet,” July 10, 2012, http://www.state.gov/r/pa/prs/ps/2012/07/194808.htm.
33 Cronin, The FTO List and Congress: Sanctioning Designated Foreign Terrorist Organizations. 34 8 U.S.C. § 1189 (Before the Intelligence Reform and Terrorism Prevention Act of 2004 amended 8 U.S.C. § 1189, FTO designations were effective for two years and subject to re-designation by the Secretary).
35 Ibid.
minimum every five years,36 but can review it sooner if the FTO challenges its
designation.37
As originally enacted, AEDPA required the secretary of state to review FTO designations every two years.38 Under that process, the Secretary either renewed the
designation every two years or allowed it to lapse.39 The statute was revised so that the
Secretary’s designation no longer lapses. Instead, every two years, an organization listed as an FTO can file a petition for delisting.40 If no petition is filed, the Secretary must
review the designation every five years to determine whether the designation shall remain or be revoked.
The overall designation process is graphically depicted in Figure 1.
36 8 U.S.C. § 1189 (a)(4)(C)(i); U.S. Department of State, “Foreign Terrorist Organizations.” 37 8 U.S.C. § 1189 (a)(4)(B)(ii); U.S. Department of State, “Foreign Terrorist Organizations.” 38 Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (amends § 219 of the Immigration and Nationality Act (Public Law 82–414; 8 U.S.C. § 1101 et. seq.) [hereinafter AEDPA].
39 See AEDPA, “Designation of Foreign Terrorist Organizations,” 8 U.S.C. § 1189(a)(4)(B) (2003). 40 8 U.S.C. § 1189 (a)(4)(B)(ii); U.S. Department of State, “Foreign Terrorist Organizations”; Under the AEDPA, the Secretary may designate an entity an FTO if: (1) “the organization is a foreign
organization,” (2) “engages in terrorist activity . . . or terrorism . . . or retains the capability and intent to [do so],” and (3) “the terrorist activity or terrorism of the organization threatens the security of United States nationals or the national security of the United States”; 8 U.S.C. § 1189(a)(1).
III.
LITERATURE REVIEW
The best way to enhance freedom in other lands is to demonstrate here that our democratic system is worthy of emulation.
—Jimmy Carter, 39th U.S. President
The FTO designation has been subjected to criticism for the unreliable nature of the information used in making the determinations, inconsistency in the types of groups placed on the FTO list, decision-making authority being so heavily placed in the Executive Branch with little oversight, and political issues that may unduly sway the process. Nevertheless, based on the research conducted for this review, no comprehensive studies analyze the overall decisions made to include organizations on the FTO list. Instead, most of the literature on the FTO list centers around specific criticisms of the list, the process used to designate the groups, the apparent inconsistency in the decisions made, or criticism about specific groups being added or omitted from the FTO list. These criticisms are presented without providing any comprehensive evaluation of the entire FTO list.