The US House of Representatives recently advanced a measure that, if finalized into law, would greatly expand the president’s ability to designate nonprofit organizations as supporters of “terrorism” and strip their tax-exempt status as punishment. Civil liberties advocates are rightly bemoaning the bill’s advancement, as it would be a dangerous tool for suppressing dissent and crushing peace and justice organizing — an especially worrying prospect as Donald Trump again prepares to take office.
Still, it is critical at this moment to recognize that, egregious as this bill is, it would merely be the logical extension of massive powers that already exist. Indeed, there are already several mechanisms by which the executive branch holds enormous discretionary power to label individuals, organizations, and states as “terrorists” and enact severe penalties on them as a result. These “terrorist” designation lists rarely receive mass scrutiny similar to what the recent bill received, but they do just as much harm.
Lists and their Consequences
There is the “Foreign Terrorist Organizations” (FTO) list, which affords the Secretary of State wide discretion to label foreign organizations as engaging in “terrorist activity,” defined broadly. There is also the “Specially Designated Global Terrorists” list (SDGTs), which can include both organizations and individuals who have “committed” or “pose a significant risk of committing” terrorism, again defined broadly. The “State Sponsors of Terrorism” list (SSTs) allows the Secretary of State to add just about any country so long as they determine its government has “repeatedly provided support for acts of international terrorism,” with “support” and “terrorism” left undefined.
There are also numerous expansive “terrorist” designation lists that have been added into immigration law in the post-9/11 era to determine when foreign nationals are inadmissible or removable from the country. There is the “Terrorist Exclusion List” (TEL), in which foreign groups are designated by the Secretary of State under criteria that is even more broad than that used to compile the FTO list. There is also the so-called “Tier III” mechanism, which is uniquely unwieldy in that it does not involve actually maintaining a list, but instead gives immigration judges and officials ad hoc, case-by-case authority to designate groups as “terrorist” entities for purposes of adjudicating immigration claims, and uses the broadest definition of them all. Anyone finding themselves in even a loose association with a designated group will be denied the immigration relief they are seeking.
The consequences of these “terrorist” lists are eye-popping. Economic sanctions freeze the US assets of those who are even investigated for potential inclusion on the FTO and SDGT lists, and US transactions with the designees are prohibited. SSTs are subject to crushing, embargo-like sanctions. Members of FTOs, TELs, and “Tier III” groups, as well as those who give them “material support” as minimal as “even a glass of water” are barred from the United States, often even if that support was given under duress. SSTs and FTO “supporters” can be sued in US courts by individuals alleging harm by terrorism. Anyone engaging in any level of support to an FTO — even if the support is non-monetary and even if specifically for peaceful and lawful purposes — can be criminally prosecuted or sued privately.
What is “Terrorism”?
Of course, the fundamental problem here is that there is no agreement on what “terrorism” actually is. The legal scholar Ileana M. Porras once wrote,“Everyone uses the word ‘terrorism’ to mean a kind of violence of which he or she does not approve.” Indeed, “terrorism” is not a universal legal term that can be objectively relied upon to make defensible lists of people to be impoverished, deported, jailed, or otherwise punished. Neither can it ever be universally defined so long as there are varying perspectives on struggles of power and justice in which those involved may resort to violence. Questions of imperialism, colonialism, and race underscore these perspectives.
Ultimately, “terrorist” designations are political tools that serve US geopolitical goals. This is clear with even a cursory glance at the history of such designations. Iraq was listed in 1979, then removed in 1982 not because of changes in Iraq’s sponsorship of acts of political violence, but because the US government wanted to remove barriers to arming Iraq in its war with Iran. Cuba’s designation is broadly acknowledged to be unconnected to actual support for terrorism and instead stems primarily from a US desire to weaken its communist government. And despite growing public documentation that the Saudi government gave significant support to al-Qaeda to perpetrate the attacks of Sept.11, 2001, Saudi Arabia has never even been a contender to be designated, and in fact is a major recipient of US arms and has been contemplated to receive a NATO-like defense guarantee. These choices are clearly less about which entities did or did not meet the applicable “terrorist” definitions than the fact that the US government had foreign policy interests in each case that guided decisions accordingly.
Ultimately, “terrorist” designations are political tools that serve US geopolitical goals.
Gaza as a Case Study
Along those lines, the Center for Constitutional Rights and Palestine Legal have conducted analysis demonstrating that the terrorist designation lists’ very origins lie in US efforts to nurture its exceptional relationship with Israel and hamper Palestinian liberation efforts. We can see that dynamic in the current moment, as Israel’s post-Oct. 7 destruction of Gaza and the reverberating violence in the region offers a striking case study in the lopsided application and devastating consequences of “terrorist” designations.
Setting aside what does and does not actually constitute “terrorism,” including if any of the Israeli government’s actions that the International Court of Justice that has found to plausibly constitute genocide could be classified as such, the point is how the decision of the US government to designate Hamas, Hezbollah, the Houthis and Iran as “terrorist” has significant effects on real people, including those not involved in the violence.
Consider that while it is relatively easy for Americans to send money to Israel, even to intentionally help paramilitary units or violent settler activities or block humanitarian aid, US persons hoping to make a donation to alleviate creeping famine in Gaza must navigate byzantine sanctions and risk criminal prosecution or a private lawsuit accusing them of material support for terrorism if their donation is processed or received by a listed person or entity, or an entity that may be under control of a listed entity. These restrictions further squeeze the already narrow pathways for getting help into Gaza.
Similarly, US individuals and organizations involved in political activism to express their opinions about their government’s policies are met with completely different consequences depending upon which opinions they espouse. Those protesting to encourage the United States to stop supporting Israel’s military campaign could face investigation or prosecution for materially supporting terrorism or lose their visas if they are foreign nationals. (Many members of Congress, state attorneys general, and the Anti-Defamation League have urged exactly these consequences.)
What’s more, a major study found that terrorist designations have an “unclear at best” track record in achieving their stated goals. Instead, the designation lists have actually perpetuated violence and suffering. Before Gaza, the designations helped pave the way for a military coup in Sudan, sabotaged the peace process in Colombia, aided the US government in targeting pro-Palestine activists for deportation based on their political activities, closed down the largest Muslim charity in the United States, and prevented innocent people seeking asylum from sheltering in the United States, including Iraqi interpreters for US troops, those who were forced into labor by armed groups, and respected Syrian dissidents.
Some have argued that the inherent flaws in terrorist designations lists can be mitigated by adding procedural due process reforms or by expanding the lists to include more white nationalists. But until the underlying political forces driving designations change, which include the implicit pull of white supremacy and the US goal of maintaining global primacy, discretionary designation lists will continue to be available to be politicized in the service of those same goals.
As a case study, what is happening in Gaza and across the Middle East, with consequences for protestors and peacebuilders inside the United States, simply makes more urgent what has always been true: not only should policymakers decline to expand US terrorist designation lists, they should fully dismantle what already exists, too.
