The National Interest: The Corruption of the Terrorist Group List
The Trump administration is undermining the objective of counterterrorism by placing, for the first time ever, a governmental entity on a list that never was designed for that purpose.
The Corruption of the Terrorist Group List
by Paul R. Pillar
The ineffectiveness of the Trump administration’s latest move in its anti-Iran campaign—its designation of the Islamic Revolutionary Guard Corps (IRGC) as a Foreign Terrorist Organization (FTO)—are readily apparent and have been ably analyzed by other commentators. The designation does not put any additional economic pressure on an already heavily sanctioned Iran and, among other drawbacks, only makes it harder for Iranian critics of the IRGC to speak up lest they be seen as stooges of the United States.
The Trump administration is running out of ways to demonstrate its unremitting hostility toward Iran. As it strives to contrive new ways, it compromises and undermines other U.S. interests and objectives. The latest move undermines the objective of counterterrorism by placing, for the first time ever, a governmental entity on a list that never was designed for that purpose.
Omnibus counterterrorist legislation known as the Antiterrorism and Effective Death Penalty Act, which Congress enacted in 1996, created the FTO list. That act criminalized material support to terrorist groups, with material support defined broadly to include financial contributions, propagandizing, and almost any other form of cooperation or business dealings with a terrorist group. If support to a foreign terrorist organization was to be made a crime, then it was necessary for the law to specify what counted as a foreign terrorist organization. Hence the 1996 act created a formal list of such organizations, along with criteria for the executive branch to use in determining which groups should be placed on the list.
In short, the FTO list never was intended to be a means of condemning foreign entities that the United States doesn’t like. Instead, it is a tool for prosecutors to go after individuals who, for example, contribute money or facilitate the movement of guns or people on behalf of a terrorist group.
Clearly none of this is designed to apply to an arm of a foreign government, whose operations depend on a governmental budget rather than on aid from prosecutable individuals. The attempt to apply the U.S. law in question to the IRGC—which is an entire branch of the Iranian armed forces—theoretically makes every Iranian taxpayer a potential criminal defendant. Or, if one did not want to apply the concept of material support quite that broadly, what about all those who currently serve in the IRGC (about 125,000) or its associated militias within Iran (an even larger number) or have ever served in the IRGC (another large number, because many Iranians perform their military service in the Guard)?
The broad range of activities that the IRGC performs on behalf of the Iranian state also means the material support provision would apply as well as to other foreign governments that do ordinary, decidedly non-terrorist, business with Iran. This is especially true of Iraq, which for this reason strongly opposed the U.S. designation of the IRGC. Iraqi officials deal with the IRGC not only on matters of Iraqi security but also on such mundane business as regulation of cross-border commerce. The IRGC also has been involved in peace negotiations in Afghanistan, making other participants to that process subject to the material support provision as well.
The law hits even closer to home when considering a terrorism-relevant fact that the Trump administration refuses to acknowledge: that Iran, including the IRGC, has actively opposed the terrorist threat that has mattered most in recent years, which is violent Sunni extremism of the Al Qaeda or Islamic State (ISIS) variety. In Iraq, the IRGC and militias it supported played the leading role in combating and defeating ISIS on the ground. The United States played a supporting role with air power. That means the U.S. Air Force has provided material support to the IRGC and thus also is in violation of U.S. law, or at least would be the next time it is used to combat a similar terrorist threat that Iran also opposes. Of course, it sounds ridiculous to talk about the Air Force as a violator of U.S. criminal law, but the ridiculousness is only a reflection of how inapposite is the designation of the IRGC as an FTO.
Putting foreign governments’ militaries or security services on the FTO list starts down a slope on which there is no stopping point other than the arbitrary and inconsistent one that the administration prefers. Secretary of State Mike Pompeo’s assertion that “the Iranian regime’s use of terrorism as a tool of statecraft makes it fundamentally different from any other government” is fundamentally incorrect. The public record alone shows that other governments use clandestine violence overseas, including in ways that fully qualify as international terrorism under the terms of the same U.S. law that created the FTO list. Pakistan does it. Russia does it. Israel has a long record of doing it, including nasty operations such as car bombs in urban streets that kill innocent passersby as well as the intended target. One of the very Iran-supported operations that Pompeo mentioned in his bill of particulars against the IRGC was clearly an attempt to retaliate for serial Israeli assassinations of Iranian scientists. The original assassinations were international terrorism every bit as much as the attempted retaliation.
And as a recent reminder, the murder of Jamal Khashoggi shows that Saudi Arabia does it, too.
The IRGC designation is one more indicator of how the administration’s campaign of unrelenting hostility against Iran has less to do with countering nefarious behavior than it does with pursuing other objectives. One of those objectives, as the timing of the designation announcement made obvious, was to bestow another gift on Israeli prime minister Benjamin Netanyahu and help him win re-election. Netanyahu publicly thanked President Trump for responding to the prime minister’s “request” to make the designation.
Another objective is to goad Iran into making some move that would provide a spark or an excuse for the war with Iran that National Security Advisor John Bolton has long wanted and that Pompeo evidently wants as well, as reflected in his refusal to acknowledge, in a recent exchange with Sen. Rand Paul, that the administration lacks congressional authority for such a war.
Pompeo clings to the notion that a post–9/11 authorization for the use of force is sufficient because Iran held some Al Qaeda members, under what appears to have been a kind of house arrest, rather than immediately expelling them or prosecuting them. The notion ignores that Sunni extremists of the Al Qaeda sort are adversaries, not allies, of Iran. It also ignores what probably was Iran’s hope in holding the Al Qaeda members, which was to exchange them for members of the terrorist group/cult known as the Mojahedin e-Khalq (MEK), then under U.S. control in a camp in Iraq. As Michael Rubin’s review of that group’s record makes clear, the MEK richly deserved its place on the FTO list, even though money from its well-heeled backers bought enough lobbying to get it removed from the list a few years ago.
To all the other deleterious side-effects of the administration’s obsession with Iran—including diplomatic isolation of the United States and poisoning of U.S. alliances—add the damage to U.S. counterterrorist policy and to U.S. credibility in the fight against terrorism.