The "FTO List" and Congress: Sanctioning Designated Foreign Terrorist Organizations
Released: 2003-10-21T00:00:00

Introduction

The purpose of this report is to provide Congress with an overview of the nature and statusof the designated foreign terrorist organizations list (FTO list), as a potential tool in overseeing theimplementation and effects of U.S. legislation designed as a basis for imposing sanctions onterrorists. The report centers on the list of terrorist groups that are formally designated by theSecretary of State pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1101 et seq .), as amended under the Antiterrorism and Effective Death Penalty Act of 1996 ( P.L.104-132 ). These groups are often collectively referred to as the "terrorist group list" or "FTO list."

The focus here is on the operation and effectiveness of the FTO list as a U.S.counterterrorism tool. The first part of the report provides a background on the process fordesignating a group, as well as the procedure used to remove a group. It describes the administrationof the list and the role of the various Executive agencies involved in maintaining it. (1) Next follows a sectionexplaining the distinctions between the FTO list and other terrorist lists that are maintained by theU.S. government, with an emphasis on both tracing the complicated interplay among the numerouslists and untangling their confusing acronyms. The arguments in favor and against the FTO list arethen discussed, with information about the practicalities of implementing it. The report concludeswith a discussion of potential policy options for Congress, including some of the recently proposedamendments to the legislation that establishes it.

The potential issue for Congress is to assess, as part of its oversight responsibility, theeffectiveness of the FTO list in confronting terrorist groups that are a threat to the United States. This report will be updated as events warrant.

Background

The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which amends section219 of the Immigration and Nationality Act (P.L. 82-414; 8 U.S.C. 1101 et. seq .), states that theSecretary of State is authorized to designate an organization as a "foreign terrorist organization" ifthree conditions are met:

1. The organization is foreign;

2. The organization engages in terrorist activity;

3. The terrorist activity threatens the security of United States citizens or the nationalsecurity of the United States. (2)

If the Secretary of State decides that an organization meets these conditions, he or she may add it tothe terrorist group list at any time by informing Congress and publishing a notice to that effect in the Federal Register . Designations last for two years, at which time they may be renewed. Groups canalso be removed from the list at any time, either by the Secretary of State or by Act of Congress. Thecriteria for removal by the Secretary are general and are subject to interpretation: the Secretary ofState may revoke a designation if he or she finds either that the circumstances that were the basis forthe designation have changed, or that the national security of the United States warrants a revocationof the designation. (3) Designations normally occur after an involved interagency process; but the Secretary of State makesthe ultimate decision.

Although the State Department officially designates a group and takes the lead, there are anumber of agencies involved in administering the FTO list. Before the determination, theintelligence community is an important player, because the designation is based upon evidence ofa group's terrorist activity. This often involves classified information and entails assembling anadministrative record that will potentially stand up in court. The intelligence community alsoprovides the information upon which decisions to renew an organization's designation arebased. (4) The JusticeDepartment weighs the legal evidence before the designation is approved, and when renewal is beingconsidered. The Department of Homeland Security is also consulted before designations are made.

After the designation, the Treasury Department may block financial transactions involvingan organization's assets and determine whether U.S. banks are complying with the law. The JusticeDepartment determines whether or not to prosecute offenders who violate any aspect of the TreasuryDepartment's sanctions. Judges from the Department of Justice's Executive Office of ImmigrationReview decide immigration cases, with appeals potentially going all the way to the Attorney General. A variety of different agencies in the Department of Homeland Security are then involved in carryingout immigration sanctions, including deportations.

Thus, from the perspective of the members of a group, the legal consequences of beingdesignated a foreign terrorist organization are in two general areas: financing and immigration. Under the AEDPA, people who provide funds or other material support to a designated FTO arebreaking the law and may be prosecuted. (5) This applies to both the members of a group and to those who maybe sympathizers. If Treasury imposes sanctions, U.S. financial institutions are required to block thefunds of designated FTOs and their agents and to report that blockage to the Treasury Department. This can have important consequences for a designated terrorist organization's ability to access itsresources. As for immigration, members of designated FTOs can be denied visas or excluded fromentering the United States, and/or they can be deported once they are in the country.

Not the Only U.S. "Terrorist List"

The FTO list is not the only so-called "terrorist list" that the U.S. government keeps. (6) There are a number of others,and it is important to clarify the distinctions among them. (7)

Probably the best known is the "state-sponsors of terrorism" list, which is pursuant to section6(j) of the Export Administration Act of 1979 ( P.L. 96-72 ; 50 U.S.C. app. 2405(j)(asamended)). (8) Under theterms of the act, the Secretary of State provides Congress with the list of countries that have"repeatedly provided support for acts of international terrorism." There are currently seven stateson the state sponsors of terrorism list: Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria. (9) Being on the list subjects acountry to a range of severe U.S. export controls, especially of dual-use technology and militaryweapons. The provision of U.S. foreign aid (except humanitarian assistance) is also prohibited.

The state sponsors of terrorism list has been remarkably static since its initiation in 1979,with only two states ever having been removed: South Yemen, which was removed in 1990 whenit effectively ceased to exist, merging with North Yemen to form the current state of Yemen; andIraq, which was removed from the list in1982 (when it was allied with the United States) and wasreturned to the list in 1990 (after its invasion of Kuwait). (10) This list differs from the FTO list, as it is directed specificallytoward states, not substate actors -- like the terrorist groups that the states allegedly support. It alsoderives from different legislation. (11)

At least three other important U.S. "terrorist lists" are in use. The "specially designatedterrorists" (SDTs) list was generated pursuant to the International Emergency Economic Powers Act( P.L. 95-223 ; 50 U.S.C. 1701 et seq .). It was initiated under Presidential Executive Order 12947 on25 January 1995 and was specifically oriented toward persons (individuals and entities) who threatento disrupt the Middle East Peace Process. Later, following the events of September 11, 2001, thePresident invoked the same emergency authorities in Presidential Executive Order 13224, to block"all property and interests in property" of certain designated terrorists and individuals and entitiesmaterially supporting them. (12) This established another, much longer list, known as theSpecially Designated Global Terrorists (SDGTs) list. There are currently over three hundred personsidentified as SDGTs. These two lists are especially targeted toward blocking terrorist financing, andthey do not have an immigration element.

The Treasury Department maintains the so-called SDT and SDGT lists, and, unlike the FTOlist, the Secretary of the Treasury takes the lead in adding individuals or organizations to the lists andthen freezing the assets of persons or entities that are on them. The lists have grown to include morethan 200 entities, organizations, and/or individuals. They derive from different legislation and,again, are not the same as the designated FTO list. (13)

The SDT, SDGT, state sponsors, and (as of October 2002) FTO lists were placed togetherin a new, larger roster called the "Specially Designated Nationals and Blocked Persons" (SDN) listmaintained by the Office of Foreign Assets Control of the Treasury Department. (14) Although the individuallists retain separateness pursuant to their legislation, this comprehensive SDN list presents in oneplace all of the terrorist entities that are economically sanctioned through having their assets blocked. (It also includes individuals and organizations that are sanctioned by having their assets blocked fornarcotics trafficking and other activities.) There are thus fourteen different sanctions programsincluded in the SDN list, not all of which pertain to terrorists. The list is accessible via the Internetand is frequently updated to reflect the fluid nature of U.S. economic sanctions. (15)

There is also the so-called "Terrorist Exclusion List" or "TEL," which is pursuant to Section411 of the USA Patriot Act of 2001 ( P.L. 107-56 ; 8 U.S.C., 1182). It authorizes the Secretary ofState, in consultation with (or at the request of) the Attorney General, to designate terroristorganizations strictly for immigration purposes. Individuals associated with organizations on theTEL list are prevented from entering the United States and/or may be deported if they are alreadyhere. (16) (It is worthnoting, that none of these immigration sanctions has an effect on the behavior of U.S. citizens.) TheTEL list expands the grounds for exclusion from the United States and has a broader standard andless detailed administrative procedure than does the FTO list. The State Department maintains theTEL list. (17)

In sum, with respect to sanctions against terrorists, the Executive branch maintains anintricate array of lists pursuant to various legislation and Executive Orders. These lists do overlap;however, the Executive Branch implements sanctions against state sponsors of terrorism, terroristorganizations, and individual terrorists somewhat differently depending upon which legislationapplies, what the purpose is, and which list is being considered. There are also international listsmaintained by the United Nations and the European Union, for example, that are not considered here. This report looks in detail only at the designated FTO list and its sanctions, which the StateDepartment takes the lead in administering and which names only specially designated terroristorganizations. The FTO list has unique importance not only because of the specific measuresundertaken to thwart the activities of designated groups but also because of the symbolic, public roleit plays as a tool of U.S. counterterrorism policy.

History of the FTO List

The first terrorist organizations were designated and put on the FTO list in October 1997,about eighteen months after the passage of the AEDPA. There were thirty organizations on thatinitial list. In October 1999, the first review and redesignation occurred. Of the 30 groups originallyon the list, 27 were redesignated, three were allowed to lapse, and one more group was added. (18) Notably, the group thatwas added to the FTO list that year was Al Qaeda, which was designated a foreign terroristorganization especially because of its involvement in the August 1998 bombings of the U.S.embassies in Nairobi, Kenya, and Dar Es Salaam, Tanzania.

The first exercise of the Secretary of State's ability to add a group outside the usual two-yearcycle occurred in 2000, when the Islamic Movement of Uzbekistan was designated on its own. Thenin the regular biennial review in 2001, the State Department added two new groups, the Real IrishRepublican Army (RIRA) and the United Self-Defense Forces/Group of Colombia (AUC), andcombined two other groups (Kahane Chai and Kach) into one. (19) That brought the total to28 FTOs. Since that time, the list has grown significantly. There have been eight groups added tothe FTO list since October 5, 2001: the Al-Aqsa Martyrs Brigade (which is an armed wing of theFatah movement), 'Asbat al-Ansar (a Lebanese-based group associated with Al Qaeda), theCommunist Party of Philippines/New People's Army (CPP/NPA) (a Maoist group),Jaish-e-Mohammed (JEM) (an Islamic extremist group based in Pakistan), Jemaah Islamiya (JI) (asoutheast Asian terrorist network connected with Al Qaeda), Lashkar-e-Tayyiba (LT) (aPakistan-based group fighting in Kashmir), and Salafist Group for Call and Combat (GSPC)(apparent outgrowth of the Algerian GIA, active in Europe, Africa and the Middle East). There are36 groups currently designated as foreign terrorist organizations. (See Appendix A.)

Advantages of the FTO List

There are advantages and disadvantages for the United States in using a formal list as amechanism for counterterrorism purposes. (20) Chief among the advantages is the fact that the FTO list bringslegal clarity to efforts to identify and prosecute members of terrorist organizations and those whosupport them. Having the designated FTO list helps to target U.S. counterterrorist sanctions underthe AEDPA because there is no ambiguity about which groups are included and which are not. Ifa group is on the FTO list, then the AEDPA sanctions apply; if not, they do not. Thus, being addedto the list can have very substantial implications for both the organization and for U.S.counterterrorist efforts.

In practical bureaucratic terms, the FTO list also provides lucidity in the often complicatedinteragency process of coordinating the actions of Executive agencies, by giving them a central focalpoint upon which the efforts converge. U.S. counterterrorism is therefore potentially more effective. State, Treasury, Justice, Homeland Security, and other agencies all recognize that groups on the listare subject to scrutiny and sanctions. And these measures arguably make Americans more securefrom terrorist attacks, for example, by cutting down on terrorist organizations' access to resourcesand preventing terrorist group members from entering the country. Specifically, the departments ofHomeland Security and Justice have used affiliation with an FTO as grounds for deportation ofaliens. (21) The TreasuryDepartment, working with the interagency and international communities, has used the FTO list(among the other U.S. terrorist sanctions programs) in its effort reportedly to block more than $125billion in assets worldwide. (22) And, of course, the Justice Department has prosecutedindividuals affiliated with FTOs. (23) Having a focal point for agency coordination enhances theeffectiveness of government implementation and may also serve as a deterrent to organizations thatconsider engaging in illegal behavior.

Likewise, the FTO list is a useful mechanism in dealing with other governments, especiallythose that are coordinating counterterrorism efforts with the United States. Labeling and listingterrorist organizations also opposed by other states can be an important source of convergence inbilateral national relations. There is a sense of alliance against a common enemy. Often importantbenefits are derived in counterterrorism or other aspects of the bilateral relationship as a result. Moreover, states that are, actually or potentially, supporting organizations on the list can be left inno doubt about U.S. policy on the issue. Clearly labeling what the United States governmentconsiders a foreign terrorist organization can have significant domestic and international foreignpolicy advantages. It can be a powerful diplomatic tool, residing in the State Department's Officeof the Coordinator for Counterterrorism.

Another important benefit is the attention that the FTO list gives to the organizations that areon it. Drawing attention to terrorist groups aids in identifying them not only for states but fornongovernmental organizations and individuals. And likewise the terrorist organizations are fullyplaced on notice that someone is watching what they do. This can make it more difficult for themto operate.

The groups on the FTO list are stigmatized. Many modern terrorist organizations have avaried portfolio of activities, some of which may be ostensibly legitimate. Some who may havepreviously viewed an organization primarily as a charity or as a public advocacy group mayreconsider supporting it. Publicizing which groups are formally designated has important legalimplications: since the law punishes those who wittingly support terrorist organizations, ignoranceof a listed organization's activities is less defensible. Potential donors may not necessarily be willingto contribute to an organization that is designated as "terrorist," especially if the gift may result inprosecution under U.S. law. The moral relativity that some people claim dogs the "terrorist" labelis removed, at least as far as official U.S. policy is concerned.

Disadvantages of the FTO List

Although it has important legal and symbolic significance, some argue that having a "list"is overly mechanistic, restrictive and inflexible, especially in an area of foreign policy that requiresflexibility. Nonstate actors such as terrorist organizations are often able to change their names and/orcharacteristics much more quickly than ponderous bureaucratic lists can reflect. This is a seriousproblem in an era when international terrorism is increasingly globalized in its reach and capabilities,with borders becoming more permeable and less relevant, in an age of Internet links and open tradeareas. (24) Likewise,such lists are not very effective in dealing with ad hoc activities engaged in by "volunteers," whomay not have a clear long-term relationship with an organization. This has become a particularworry with respect to Al Qaeda, for example. (25)

The statement that a group is "on the list" or "off the list" can be very misleading, and itssignificance is often misunderstood. It is true that the FTO list is generally considered the primarymeans of imposing sanctions against terrorist organizations. However, not being on the FTO listdoes not necessarily mean that the U.S. government has failed to recognize that a group is engagedin terrorism, is a threat, and should be subject to sanctions. Sometimes, for various reasons,groups (26) are not on theFTO list, but are on the SDT or SDGT list. They can also be on the Terrorist Exclusion List. Theremay be competing priorities in dealing with a group, such as a desire to engage a group innegotiations or to use the FTO naming as leverage for another foreign policy aim. Without a fullappreciation of the interplay among different sanctioning lists, not to mention the interplay betweencompeting foreign policy goals and all of the sanctioning lists, statements about whether or not agroup is on a particular list may ring hollow.

It is not necessarily the case that the FTO list is the most effective or prosecutable mechanismto act against terrorist organizations, if that is the aim. Sometimes it is easier to prosecuteorganizations or their associates by using the Executive Orders under IEEPA. For example, it canbe more difficult to prove that someone is materially supporting, or working for or on behalf of, anFTO under AEDPA than it is to prove that someone is violating the terms of Executive Order 13224. In that case, it might be to the benefit of U.S. counterterrorism efforts to name a group a SDGTrather than an FTO. If a group is then also put on the Terrorism Exclusion List, the combined effectsof the sanctions overall could be comparable to being formally named an FTO. (27) Of course, the publicattention and diplomatic leverage that goes along with being on the better-known FTO list is notequalled; however, the point is that in terms of the results with respect to fighting an organization'sactivities, the U.S. sanctions regime is far more complicated than either being "on" the list or "off"the list would imply.

Competing foreign policy concerns often result in decisions to keep groups off the list. Thisis not necessarily a problem, as U.S. foreign policy considers numerous competing priorities in anygiven situation. The law "authorizes" but does not require the Secretary of State to make any givendesignation. If there are countervailing foreign policy priorities, then his or her judgment prevails. Nonetheless, inconsistencies of standards from the perspective strictly of terrorism can make the U.S.government appear hypocritical, especially in the eyes of those who see the FTO list only in blackand white terms and may not appreciate the existence of other terrorist lists. Statements aboutorganizations that are not designated regularly appear in the press, journals and academic writing,for example. (28) Havingsuch a high-profile list can politicize and oversimplify what is actually a complex web of legalsanctions that may be in addition to, or instead of, those pursuant to the AEDPA.

Furthermore, as noted, above, the FTO list is subject to judicial review. Thus, on a numberof occasions, groups have filed law suits to be removed from it. For example, the Mujahedin-eKhalq (MEK) and the Liberation Tigers of Tamil Eelam (LTTE, or Tamil Tigers) in 1999 both filedsuits in the District of Columbia arguing that they had been denied due process; but they lost incourt. (29) A separatelegal challenge was undertaken by the LTTE and the Turkish Kurdistan Workers' Party (PKK),which argued that the FTO portion of the AEDPA was unconstitutional. The suit was brought byindividuals and groups seeking to make contributions to the designated organizations. They also losttheir case; however, the ability to win in court has at times evidently been an element in the initialdecision whether or not to designate a group. (30) This may mean that the designation has more to do with thelegalities of the evidence than with the protection of U.S. national security from a terrorist threat.

Policy Options for Congress

In the 108th Congress, a number of amendments have been offered to change the AEDPAlegislation so as to improve the effectiveness and ease of implementation of the FTO list. Some haveproposed that the law should be changed so that the designation does not lapse if the Secretary ofState fails to renew it every two years. It is a significant bureaucratic burden to ensure that thedesignations are appropriately reviewed, investigated, the administrative record updated, theappropriate agencies consulted, and the public statement of renewal made every two years after theinitial designation. Some might argue that the burden of proof should be placed on the terroristorganization, and that the designations should stand unless a successful appeal is placed by theorganization. The requirement for renewal is one of the aspects that some believe make the FTO listless desirable than the other sanctioning tools available under IEEPA and the relevant ExecutiveOrders.

On the other hand, opponents may point out that the powers of the federal government underthe Patriot Act are already extensive, and that placing the burden of proof on designated FTOsessentially makes them guilty until they prove themselves innocent. The state sponsors of terrorismlist has been largely static in part because states remain on the list until the Secretary of State is ableto attest to listed states having stopped being involved in supporting terrorism. It is always difficultto prove a negative. Some might argue that the FTO list is a more flexible document with the currentarrangement regarding renewals and should be kept that way. The FTO list provides a public venuefor the State Department periodically to reemphasize the importance U.S. foreign policy places uponcountering these organizations.

Another idea is to remove the requirement for judicial review of the FTO list. This wouldmake it much harder for terrorist organizations to appeal their placement on the list. The argumentsfor and against this suggestion are similar to those presented above, since judicial review is animportant mechanism available for organizations whose members believe that they have beenwrongly labeled and punished. There is a precedent for trying this suggestion. The ForeignNarcotics Kingpin Designation Act (passed in December 1999) originally contained a "no judicialreview provision." This caused concern among some owners of private businesses who feared thatthey might somehow be added to the list for unwitting business relationships with narcoticstraffickers. Shortly thereafter, legislation was passed to remove the provision, and judicial reviewwas restored.

Appendix A. Designated Foreign Terrorist Organizations

Abu Nidal organization (ANO)

Abu Sayyaf Group (ASG)

Al-Aqsa Martyrs Brigade

Armed Islamic Group (GIA)

'Asbat al-Ansar

Aum Supreme Truth (Aum) Aum Shinrikyo, Aleph

Basque Fatherland and Liberty (ETA)

Communist Party of Philippines/New People's Army (CPP/NPA)

Al-Gama'a al-Islamiyya (Islamic Group, IG)

HAMAS (Islamic Resistance Movement)

Harakat ul-Mujahidin (HUM)

Hizballah (Party of God)

Islamic Movement of Uzbekistan (IMU)

Jaish-e-Mohammed (JEM)

Jemaah Islamiya (JI)

Al-Jihad (Egyptian Islamic Jihad)

Kahane Chai (Kach)

Kurdistan Workers' Party (PKK, KADEK)

Lashkar-e-Tayyiba (LT)

Lashkar I Jhangvi (LJ)

Liberation Tigers of Tamil Eelam (LTTE)

Mujahedin-e Khalq Organization (MEK or MKO)

National Liberation Army (ELN -- Colombia)

Palestine Islamic Jihad (PIJ)

Palestine Liberation Front (PLF)

Popular Front for the Liberation of Palestine (PFLP)

Popular Front for the Liberation of Palestine-General Command (PFLP-GC)

Al Qaeda

Real IRA (RIRA)

Revolutionary Armed Forces of Colombia (FARC)

Revolutionary Nuclei

Revolutionary Organization 17 November (17 November)

Revolutionary People's Liberation Party/Front (DHKP/C)

Salafist Group for Call and Combat (GSPC)]

Sendero Luminoso (Shining Path or SL)

United Self-Defense Forces/Group of Colombia (AUC)

Source: U.S. Department of State, Patterns of Global Terrorism 2002, published April 2003;accessible at http://www.state.gov/s/ct/rls/ , p. 99ff. (Some spellings have been adapted.)