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Makin’ a Terrorist List, Checkin’ it Twice

Nicole Trafton

Who counts as a terrorist and who doesn’t? Across the world, there are dozens of countries and organizations with agendas counter to U.S. government interests. But keeping track of which of these groups count as terrorist organizations or aid groups — what they’re doing and who they’re doing it with — can be a labyrinthine task.

To monitor these groups and individuals, government agencies compile several terrorist lists; some focus on nipping funding, while others center on diplomacy. But while the lists are meant to stifle terrorism, are they actually putting the United States in harm’s way?

The government has two main ways of affecting terrorist groups without taking military action: diplomatic and financial. The State Department maintains a Foreign Terrorist Organization list, which bans U.S. officials from meeting with listed groups. The original list, created in 1997, contained 30 names. State has allowed some designations to lapse and combined similar groups into one (like the extreme Israeli nationalist groups Kahane Chai and Kach), but the list continued to grow. 36 organizations were designated by 2003, 42 by 2005, and today the list contains 44 organizations. State also maintains the Terrorist Exclusion List, which focuses on immigration and denies individuals and organizations associated with terrorism entry into the U.S.

In the Department of Treasury, the Office of Foreign Assets Control operates under Executive Order 13224, which authorizes it to freeze the assets of any organization, charity, business or individual linked with a terrorist group. Many of these groups are listed in the Specially Designated Global Terrorist list, maintained by Treasury, which releases new designations every month or so. The SDGT list contains over 300 names and organizations, many more than the FTO list.

The ability to freeze accounts is a powerful means of denying terrorist groups access to funding. While the U.S. has been able to single out certain terrorists through targeted military attacks in Afghanistan, Iraq, Yemen, and Pakistan, the ability to freeze accounts allows them to affect people in the United States connected to terrorism. Freezing assets may not be as immediately effective as military action, but it has the ability to reach a wider range of people, including the “associates” of terrorists.

Once a government agency designates an organization as a terrorist entity or terrorist aid, the process of contesting the designation and getting it off the list can be very difficult. Jonathan Schanzer, a director of policy in Middle East affairs and terrorism at the Jewish Policy Center and a former counterterrorism analyst for the Office of Intelligence and Analysis at the Treasury Department, says that getting delisted is a challenging procedure. You have to either prove you have changed your behavior (and no longer support terrorist activity) or that the intelligence that indicated you did was wrong.

If it wasn’t so difficult, “it would do a disservice to the whole process. They spend a lot of time making sure the designations are legal and meet a certain standard. It takes months and countless lawyer hours to make sure everything is lined up.”

But Treasury’s power to freeze terrorist assets and those of their associates has had a negative impact on some charities that donate to Muslim organizations. One of the most highly publicized cases was the Holy Land Foundation for Relief and Development, accused right after 9/11 of knowingly sending money to Palestinian charities that benefited Hamas.

In October 2007, a jury in a Dallas federal court acquitted Holy Land or hung on all charges, in a trial that shed light on the U.S. government’s process of identifying a terrorist group. The government only has to prove that its actions were not “arbitrary and capricious,” and the organization may not present its own evidence, so the judge must only use information the government has collected.

For those terrorists who do not have demonstrable links to the U.S., Schanzer says that the U.S. terrorist lists still hold a “name and shame” purpose. The U.S. at least has the power to expose them to the international community as terrorist organizations.

But this may not by the only way to restrain international terrorists. “There are other ways of hitting them,” says Schanzer. “A little-known list that’s important to the global operations is the UN 1267 list.” UNSCR 1267 concerns Al-Qaeda, the Taliban and any associated individuals and entities, and it works to freeze their assets. “If at any time someone is on that list, it’s incumbent upon all UN members to take action against them.”

Schanzer claims cooperation with the UN’s 1267 committee, made up of all 15 members of the UN Security Council, can sometimes prevent “asset flight,” whereby terrorist groups transfer funds to accounts under different names or groupings as soon as they get wind of an impending terrorist list designation. Because the U.S. is only able to freeze accounts within the country, it needs the international community to freeze accounts in other parts of the world, says Schanzer.

So far, the U.S. has enjoyed a good amount of cooperation with 1267. “Could there be more? Absolutely. Should there be more? Absolutely.”

But adding terrorist organizations who don’t focus their attention on the U.S. may have unintended consequences. Ivan Eland, senior fellow and director of the Center on Peace and Liberty at The Independent Institute, warned against such consequences in a foreign policy brief for the Cato Institute in December of 2001, shortly after the September 11 attacks. “Many of the groups on the U.S. government’s terrorism list are not currently focusing their efforts on attacking U.S. targets,” wrote Eland.

“But if the U.S. government begins to go after terrorist groups that do not normally focus on attacking U.S. targets, it should expect an upsurge of retaliatory terrorist attacks on the United States—both abroad and at home.”

Al-Shabaab, the militant wing of the Islamic Courts Group, which ruled most of southern Somalia for a time in 2006, was put on the FTO and SDGT lists in late February 2008. Benjamin Friedman, a research fellow in defense and homeland security studies at the Cato Institute, notes that al-Shabaab is not a threat to the U.S.: “That is thin gruel. Prior links and several al-Qaeda guys in the mix, while worrying, do not mean that organization is going to attack Americans, and is therefore one we should target.”

Even more worrying is al-Shabaab’s response to its new designation as a terrorist group: happiness. Reuters reported in March of this year that rebel commander Muktar Ali Robow said the group’s spot on the terrorist list will aid its recruiting efforts and has prompted it to strengthen ties with other organizations on the list. “But now we’ve been designated… we have been forced to seek out and unite with any Muslims on the list against the United States.”

Schanzer admits that even though the U.S. succeeds in some efforts against terrorism, terrorists always have an advantage. “We play by the rule of law. We have lawyers, rules and bureaucracy, so the Treasury Department spends an immense amount of time putting together evidence. But terrorists don’t play by the rules, which is an automatic guarantee that they will proliferate faster than we can.”

“The U.S. government has undertaken an incredibly important job, but we need realistic expectations of what can happen. Terrorists will always be one step ahead.”

If a terrorist attack occurs in the United States, Americans will die, and the executive will have to answer for it. No cabinet secretary wants to lose his job, but the agencies that manage the war should be wary of picking fights that haven’t been forced on them. When you call a group your enemy, chances are it’ll start acting that way.