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Declaring an Organization a Terrorist Organization: The Fractured System

By Casey Hare-Osifchin

President Trump scheduled peace talks with the Taliban on U.S. soil just days before the anniversary of the 9/11 attacks. After an attack that killed a U.S. Service Member, the talks were cancelled. All of the buzz regarding President Trump’s formerly scheduled talks with the Taliban begs the question of why the United States would bargain with a terrorist organization in the first place. However, the United States Terrorist Organization list does not even consider the Taliban a terrorist organization. But how is an organization that carries out suicide bombings and makes its money through the opium trade not considered a terrorist organization?

The Immigration and Nationality Act (INA) determines the categorization of a group as a terrorist organization, by providing authority to the Secretary of State to name an organization as a Foreign Terrorist Organization (FTO). According to the INA, an organization can be designated as an FTO if the Secretary of State finds that the organization is foreign, engages in terrorist activity, and that the organization’s activities threaten the security of the United States. Terrorist activity is defined by 8 U.S.C. § 1182. Such activity includes “The use of any- (a) biological agent, chemical agent, or nuclear weapon or device, or (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain)”. When it comes down to it though, there is no obligation for the Secretary of State to declare a group an FTO—it is a permissive capability.

However, the Taliban is listed as a terrorist entity by the Treasury Department. By E.O. 13224, now amended through E.O. 13886 of September 10, 2019, a specially-designated global terrorist designation list is maintained by the Treasury Department. This authority/list allows the U.S. to sanction companies conducting business with organizations that pose a threat to the security of the United States. E.O. 13224  prohibits transactions with “foreign persons determined by the Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to have committed or have attempted to commit, to pose a significant risk of committing, or to have participated in training to commit acts of terrorism that threaten the security of United States nationals or the national security, foreign policy, or economy of the United States.”

The Taliban, with its main controlling body in Afghanistan, is a foreign organization for purposes of the INA and E.O. 13224. Carrying out attacks as recently as September 2019, the Taliban clearly meets the standard of terrorist activity. The Taliban has regularly conducted attacks against their government for political gain, with multiple attacks just this year. Just weeks ago, an attack conducted by the Taliban took the life of an American soldier. The death of an American service member, just before scheduled talks with the U.S., indicates that the Taliban still meet the requirement of an ongoing threat to the security of the safety of the United States. The criteria is clearly met under both systems, so why only declare the organization under one?

The criteria that needs to be met between these two systems is nearly identical. Both systems allow the government to control business and assets of a terrorist organization. The decision to declare a group a terrorist organization relies on the Secretary of State for both lists.

Reagan first said, “America will never make concessions to terrorists,” in 1985 and this sentiment has become embraced national security policy since. However, regardless of an organization’s designations, no law restricts the government from engaging with potential terrorist organizations. The long-standing policy of “we will not negotiate with terrorists” has no real legal effect. The Trump Administration has violated no laws of which I am aware by scheduling talks with the Taliban, but ignores logic by relying on the FTO designation of the organization  to defend the Administration’s plans for talks.

The fractured system of declaring a group a terrorist organization only adds to the confusion of the United States’ actions in Afghanistan. According to the Congressional Research Service, the designation as an FTO “supports U.S. efforts to curb terrorism financing and to encourage other nations to do the same; stigmatizes and isolates designated terrorist organizations internationally; deters donations or contributions to and economic transactions with named organizations; heightens public awareness and knowledge of terrorist organizations; and signals to other governments U.S. concern about named organizations.” Failing to recognize the group as a terrorist organization in its entirety undermines the Afghan government that we have pushed so hard to establish. While not commenting on the validity of the decision to engage in talks with the Taliban, a unified approach to where we stand on their actions is crucial to our success in peace in Afghanistan.


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