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The Legal and Political Effects of the United States’ Designation of the IRGC as a Foreign Ter

By: Charlie Lyons

On April 8, 2019, President Trump said he plans to designatethe Islamic Revolutionary Guard Corps (IRGC) as a foreign terrorist organization. The highly debated decision is the first time the United States designated a branch of another nation’s government as a foreign terrorist organization. President Trump stated that this action “underscores the fact that Iran’s actions are fundamentally different from those of other governments.” Furthermore, “This action will significantly expand the scope and scale of our maximum pressure on the Iranian regime. It makes crystal clear the risks of conducting business with, or providing support to, the I.R.G.C.” On April 15, the designation will take effect and will “impose[] wide-ranging economic and travel sanctions on the military unit as well as the organizations, companies or individuals that have ties to it — including officials in Iraq, an American ally.” President Trump’s decision is not only politically significant, but it is also legally significant in that it applies extraterritorially.

Before President Trump’s decision, the IRGC was already designated under multiple executive orders (EO), including EO 13224, which blocks property and prohibits transactions with persons who commit, threaten to commit, or support terrorism. Former President George W.  Bush issued EO 13224 to address terrorism after the September 11, 2001 terror attacks. This EO blocks “all property and interests in property of [designated persons or entities] that are in the United States or that hereafter come within the United States, or that hereafter come within the possession or control of United States persons.” In addition to the designation itself, generally, “any transaction or dealing by United States persons or within the United States in property or interests in property blocked pursuant to this order is prohibited, including but not limited to the making or receiving of any contribution of funds, goods, or services to or for the benefit of those persons listed in the Annex to this order or determined to be subject to [EO 13224].” So, this EO imposes penalties on U.S. persons dealing with the IRGC, and, as President Trump is designating a branch of the Iranian government as a foreign terrorist organization, those penalties extend extraterritorially. 

The Immigration and Nationality Act (INA) authorizesthe Secretary of State, in consultation with the Secretary of the Treasury and the Attorney General, to designate an organization as a foreign terrorist organization.  Furthermore, 18 U.S. Code § 2339Bprovides that “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 20 years.” Not only does this provision say any personinstead of any U.S. person, but subsection (d) explicitly authorizes the penalties to apply extraterritorially. Here lies the significant practical effect of President Trump’s decision.

The decision to designate the IRGC as a foreign terrorist organization will have significant legal and political consequences. Legally, criminal and civil penalties will extend extraterritorially. Politically, although many in Trump’s Administration disagreed with the decision and argued that it was too broad, Secretary Mike Pompeo and National Security Advisor John Bolton pushed heavily for it. Furthermore, many argue that the decision to designate the IRGC will put U.S. troops in danger and possibly lead to war. President Trump’s decision to designate the IRGC as a foreign terrorist organization will ultimately make any future negotiations with Iran more difficult and only frustrate U.S.-Iran relations.

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