State Sponsors of Acts of International Terrorism—Legislative Parameters: In Brief
Released: 2018-11-30T00:00:00

Introduction

Over the past several years, a number of developments occurred involving foreign governments that in recent years the United States had designated as state sponsors of acts of international terrorism. Current designees are the governments of Iran, North Korea, Sudan, and Syria.

Iran. In July 2015, the United States, China, France, Germany, the Russian Federation, the United Kingdom, European Union, and Iran agreed to a Joint Comprehensive Plan of Action (JCPOA). Under the agreement, Iran ensured that its nuclear program would be exclusively peaceful, and in return, the negotiating parties and the United Nations lifted economic sanctions related to Iran's nuclear pursuits. In May 2018, President Donald Trump ceased U.S. participation in the JCPOA and set a course for reestablishing restrictions on trade, transactions, and investment in most of Iran's economy. Throughout, however, U.S. sanctions have remained in place to address Iran's support for international terrorism, missile proliferation, human rights violations, and disrupting regional stability.

Cuba. In December 2014, President Barack Obama announced he would proceed over the coming months to reestablish diplomatic relations with Cuba and ease those diplomatic and economic restrictions he could, while anticipating Congress could engage in a review of sanctions codified in permanent law. At the same time, the President announced that the State Department had begun a review of Cuba's designation on the state sponsors of terrorism list. On April 14, 2015, the President sent a message to Congress to certify that "the Government of Cuba has not provided any support for international terrorism during the preceding 6-month period; and ... has provided assurances that it will not support acts of international terrorism in the future." This met the requirements of the statutes that form the terrorist lists; Cuba's designation was removed on the 45 th calendar day following the announcement (May 29, 2015), as the laws provide.

North Korea. In November 2017, President Trump designated the government of North Korea as a state sponsor of acts of international terrorism. Reportedly affecting the decision was the assassination of Kim Jung-un's half-brother by nerve agent at an international airport in Malaysia in February 2017, as well as North Korea's pursuit of attaining nuclear weapons capabilities. In late 2014, the possibility of redesignating North Korea had resurfaced when the Obama Administration attributed a cyberattack of Sony Pictures to North Korea. It was a debate that Congress had sustained since 2008, when President George W. Bush removed the terrorism designation as part of multinational negotiations to disable and dismantle North Korea's nuclear weapons program. Congress had gone so far as to require the Secretary of State to report to the Senate Committees on Foreign Relations and Banking, Housing, and Urban Affairs, and the House Committees on Foreign Affairs, Financial Services, and Ways and Means by October 31, 2017, on "whether North Korea meets the criteria for designation as a state sponsor of terrorism." The deadline was missed, but the November 21 designation answered the question.

Sudan. Under President William Clinton, in 1993 the Secretary of State designated the government of Sudan as a state sponsor of acts of international terrorism. This was the first of several steps that escalated in 1997 when the President declared that Sudan's "continued support of international terrorism; ongoing efforts to destabilize neighboring governments; and the prevalence of human rights violations, including slavery and the denial of religious freedom" constituted a national emergency to the foreign policy, national security, and economy of the United States. For more than a decade, however, the State Department has described Sudan as generally cooperative on counterterrorism efforts. In January 2017, President Obama issued an order to signal a pending substantial outlook for U.S.-Sudan relations based on Sudan's "marked reduction in offensive military activity, culminating in a pledge to maintain a cessation of hostilities in conflict areas in Sudan, and steps toward the improvement of humanitarian access throughout Sudan, as well as cooperation with the United States on addressing regional conflicts and the threat of terrorism." This launched an extended forecast toward ending the national emergency and lifting most—if not all—of the economic sanctions. In November 2018, the State Department announced that the Administration would consider rescinding Sudan's designation if certain conditions, including with respect to respect for human rights and religious freedom, were met.

This brief report provides information on legislation that authorizes the designation of any foreign government as a state sponsor of acts of international terrorism. It addresses the statutes and how they each define acts of international terrorism; establish a list to limit or prohibit aid or trade; provide for systematic removal of a foreign government from a list, including timeline and reporting requirements; authorize the President to waive restrictions on a listed foreign government; and provide (or do not provide) Congress with a means to block a delisting. It closes with a summary of delisting in the past.

Background

Three statutes authorize the Secretary of State to designate a foreign government for repeatedly providing support for acts of international terrorism, and to curtail aid or trade to that country as a result:

Section 620A of the Foreign Assistance Act of 1961 (FAA'61; P.L. 87-195; 22 U.S.C. 2371), as amended, prohibits most aid under the act, the Food for Peace Act, Peace Corps Act, or the Export-Import Bank Act of 1945; Section 40 of the Arms Export Control Act (AECA; P.L. 90-629; 22 U.S.C. 2780), as amended, prohibits exports, credits, guarantees, other financial assistance, export licensing overseen by the State Department, and general eligibility related to providing munitions under the act, the Foreign Assistance Act of 1961, or any other related law; and Section 1754(c) of the Export Controls Act of 2018 (ECA'18; part I, subtitle B, title XVII, of the John S. McCain National Defense Authorization Act for Fiscal Year 2019; P.L. 115-232 ; 50 U.S.C. 4813).

In addition, one recently repealed statute was key to the designations of the governments of Iran, Sudan, Syria, and North Korea as terrorist states, and those designations are continued as the authority transitions to the newly enacted ECA'18:

Section 6(j) of the Export Administration Act of 1979 (EAA'79; P.L. 96-72 ; 50 U.S.C. 4605(j)), now repealed but determinations under this provision are continued by Section 1768, ECA'18, required validated export licenses (with an implied presumption of denial) for trade in goods or technology that were controlled by the Department of Commerce for national security or foreign policy reasons.

Congress has substantively amended the older of these statutes over time, incrementally building the definitions, notifications, rescission processes, and explicit congressional role. None of the first iterations of these statutes had anything that would constitute a construction of a list. Though Section 40, AECA, as enacted in 1986, restricted U.S. munitions exports based on decisions of the Secretary of State pursuant to Section 6(j), EAA'79, to limit export licenses, today's four laws are linked more by the similarity in definitions and processes.

Definitions

Of the three statutes that authorize the listing of any foreign government designated as a state sponsor of acts of international terrorism, only the AECA identifies objectionable activities as part of the definition. While that act does not define the overarching term "international terrorism," it states that the term includes

... all activities that the Secretary determines willfully aid or abet the international proliferation of nuclear explosive devices to individuals or groups, willfully aid or abet an individual or groups in acquiring unsafeguarded special nuclear material, or willingly aid or abet the efforts of an individual or group to use, develop, produce, stockpile, or otherwise acquire chemical, biological, or radiological weapons.

None of the three acts defines the core term "international terrorism." Section 140 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 ( P.L. 100-204 ; 22 U.S.C. 2656f), as amended, however, provides the following in the context of requiring the Secretary of State to report annually to Congress on foreign countries supporting international terrorism:

(d) Definitions.—As used in this section—

(1) the term "international terrorism" means terrorism involving citizens or the territory of more than 1 country;

(2) the term "terrorism" means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents;

(3) the term "terrorist group" means any group practicing, or which has significant subgroups which practice, international terrorism;

(4) the terms "territory" and "territory of the country" mean the land, waters, and airspace of the country; and

(5) the terms "terrorist sanctuary" and "sanctuary" mean an area in the territory of the country—

(A) that is used by a terrorist or terrorist organization—

(i) to carry out terrorist activities, including training, fundraising, financing, and recruitment; or

(ii) as a transit point; and

(B) the government of which expressly consents to, or with knowledge, allows, tolerates, or disregards such use of its territory and is not subject to a determination under—

(i) section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A));

(ii) section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)); or

(iii) section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)).

Removal from the Lists: Statutory Requirements

Each of the three statutes has some unique aspects to its construction, but all three have in common two possible paths for removing a foreign government from designation. The first possible option is that the President certifies and reports to Congress that

(i) there has been a fundamental change in the leadership and policies of the government of the country concerned;

(ii) that government is not supporting acts of international terrorism; and

(iii) that government has provided assurances that it will not support acts of international terrorism in the future.

In the case of the ECA'18, the President notifies the Speaker of the House, Chairpersons of the House Committees on Foreign Affairs, and on Banking, Housing, and Urban Affairs, and Chairpersons of the Senate Committees on Banking, Housing, and Urban Affairs, and on Foreign Relations that such changes have occurred. The FAA'61 and AECA require the President to notify only the Speaker and the Foreign Relations Committee Chairperson.

The second possible option the statutes offer is that the President, 45 days before a rescission takes effect, certifies to congressional leadership (as identified in the first option) that

(i) the government concerned has not provided any support for acts of international terrorism during the preceding 6-month period; and

(ii) the government concerned has provided assurances that it will not support acts of international terrorism in the future.

There is no reporting requirement to notify Congress that the clock has started ticking on the six-month period of changed behavior of the designated government. In past instances of delisting a foreign government, the Secretary of State has published a notice that the designation is under review, but the law does not require this advance notice beyond the 45-day requirement prior to issuing a rescission.

Presidential Waiver Authority

Each of the three statutes authorizes the President to waive its restrictive application, case-by-case, by consulting with and reporting to Congress.

The ECA'18 allows for validated export licenses to be issued to a designated government, provided the Secretaries of Commerce and State notify the House Committee on Foreign Affairs, and the Senate Committees on Banking, Housing and Urban Affairs, and on Foreign Relations at least 30 days in advance of each license issuance. The notification requires a detailed report on the goods or services intended to be exported, reexported, or transferred in-country, including "the reasons why the proposed export or transfer is in the national interest of the United States."

The AECA authorizes the President to waive the restrictions under the act (related to providing of munitions) with respect to a specific transaction if he or she determines the transaction is "essential to the national security interests of the United States." The President is required to (1) consult with the Committees on Foreign Affairs and Foreign Relations 15 days in advance of any such decision, and (2) submit a detailed report on the transaction, including "the reasons why the proposed transaction is essential to the national security interests of the United States," to the Speaker of the House, the Committee on Foreign Affairs, and the Chairperson of the Senate Committee on Foreign Relations.

The FAA'61 authorizes the President to waive restrictions on some aid to a designated foreign government if he or she "determines that national security interests or humanitarian reasons justify a waiver"; consults with the Committees on Foreign Affairs and Foreign Relations 15 days in advance of any such waiver; and submits a detailed report on the national security interests or humanitarian reasons that require such a waiver to the Speaker of the House and Chairperson of the Senate Committee on Foreign Relations. It is possible, too, that current restrictions on foreign aid to a designated foreign government could be, in effect, waived by enacting language in annual appropriations that provides assistance "notwithstanding any other provision of law"—a strategy oft-used by Congress.

Congress's Options Stated in Current Statute

Of the three statutes that authorize the designation of a foreign government as a state sponsor of acts of international terrorism, only the AECA states an explicit legislative mechanism for Congress to block a delisting. Section 40(f)(2) of that act provides the following:

(2)(A) No rescission under paragraph (1)(B) of a determination under subsection (d) may be made if the Congress, within 45 days after receipt of a report under paragraph (1)(B), enacts a joint resolution the matter after the resolving clause of which is as follows: "That the proposed rescission of the determination under section 40(d) of the Arms Export Control Act pursuant to the report submitted to the Congress on ________ is hereby prohibited.", the blank to be completed with the appropriate date.

(B) A joint resolution described in subparagraph (A) and introduced within the appropriate 45-day period shall be considered in the Senate and the House of Representatives [with an expedited procedure process] in accordance with paragraphs (3) through (7) of section 8066(c) of the Department of Defense Appropriations Act (as contained in P.L. 98-473 ), except that references in such paragraphs to the Committees on Appropriations of the House of Representatives and the Senate shall be deemed to be references to the Committee on Foreign Affairs of the House of Representatives and the Committee on Foreign Relations of the Senate, respectively.

Recent History of Removing Designations

Over the years, the Secretary of State and President have exercised their authorities to remove five foreign governments, on six separate occasions, from the terrorism lists.

Iraq was removed from the list in 1982, relisted in 1990, and removed again in 2004.

South Yemen was removed in 1990 when it ceased to exist as a sovereign state, as it merged with North Yemen.

Libya was removed on May 12, 2006. Congress did not seek to exercise the blocking procedure made available in the AECA. After the delisting, however, the Senate considered and adopted S.Res. 504 (Lautenberg), and the House introduced but did not consider H.Res. 838 (Ferguson) to express a sense of the respective body that the "President should not accept the credentials of any representative of the Government of Libya" unless the United States received assurances that (language taken from S.Res. 504 ):

(1) it remains an important priority for further improvement in the relations between the United States and Libya that the Government of Libya make a good faith effort to resolve all outstanding claims of United States victims of terrorism sponsored or supported by Libya;

(2) it is in the best interests of the long-term relationship between the United States and Libya that final payment be made to the families of the victims of the attack on Pan Am Flight 103; and

(3) the President should not accept the credentials of any representative of the Government of Libya without the expressed understanding that the Government of Libya will continue to work in good faith to resolve outstanding cases of United States victims of terrorism sponsored or supported by Libya, including the settlement of cases arising from the Pan Am Flight 103 and LaBelle Discotheque bombings.

North Korea was removed on June 26, 2008. Prior to the delisting, the Senate introduced but did not enact S.Res. 399 (Brownback), which would have required the Bush Administration to certify that the North Korean government had met certain benchmarks before sanctions were removed, including matters related to weapons proliferation, harboring terrorists, counterfeiting U.S. currency, trafficking in narcotics, abduction of citizens of Japan and South Korea, and resolution of outstanding South Korean prisoner-of-war questions remaining from the 1950s conflict. The House introduced but did not enact H.R. 3650 (Ros-Lehtinen; see §3), and H.R. 6420 (Sherman), to raise similar congressional concerns.

Cuba was removed on May 29, 2015. Congress did not seek to exercise the blocking procedure made available in the AECA. Prior to the President's announcement, on April 14, 2015, of his intention to rescind the terrorism designation, H.Res. 181 (King) was introduced, "calling on the Secretary of State and the Attorney General ... to continue to press for the immediate extradition or rendering of all fugitives"—believed to number more than 70—who have sought safe harbor in Cuba. The measure received no further consideration.