Some have noted that the FTO list is a mixture of the “apples and oranges” of terrorist organizations, and reflects “the shift from well-organized, localized groups supported by state sponsors to loosely organized, international networks of terrorists.”49
For example, the FTO list includes the following.
• Large multidimensional groups based on Islamic ideologies (such as Hamas, Hezbollah), Marxism (the FARC and ELN), a combination of the two (MEK)
• Ethnic-based groups (LTTE, PKK, ETA)
• Palestinian groups seeking a peaceful solution (Popular Front for the Liberation Front of Palestine) and those that do not (PLFP-GC, Palestine Liberation Front, Abu Nidal Organization)
• Non-Palestinian leftist groups
• Small but deadly European groups (November 17, Revolutionary People’s Struggle in Greece, and the Revolutionary People’s Liberation Party/Front in Turkey)
• Radical Islamists (al Qaida and its associated organizations) • Small Jewish groups (Kach and Kahane Chai)
• Idiosyncratic groups (Aum Shinrikyo)
The FTOs on the list vary in size, strength, activity, ideology, goals, outside support, anti-U.S. orientations, and whether the group is waning or waxing.50
47 Shapiro, “The Politicization of the Designation of Foreign Terrorist Organizations,” 566; Cronin, The FTO List and Congress: Sanctioning Designated Foreign Terrorist Organizations, 9.
48 Ibid.
49 Pillar, Terrorism and U.S. Foreign Policy, 153. 50 Ibid.
Al Qaeda is on the same list as groups whose mission does not involve harming the United States. The danger of the list appearing to contain a list of co-equal organizations has been subject to ongoing concern about the designation process.
Besides the general drawback of encouraging a truncated view of these organizations by looking at all of them through a single lens, there is the more specific drawback of possibly burning bridges to groups with which the United States might want to deal in the future. In a worst case, such bridge-burning may make a group more inclined to attack U.S. interests directly.51
Some analysis has been conducted to determine whether, despite the apparent differences in objectives of the designated FTOs, the groups on the list, in fact, possess a common characteristic. Such an analysis is instructive in explaining how such desperate groups are on one unified list. According to a review conducted in an Indiana Law Review article titled “The Material Support Prosecution and Foreign Policy,” all the groups on the FTO list have used violent attacks on civilians as a means to intimidate or coerce a sovereign government.52 In reviewing the State Department country reports,
which outline the FTOs and some of their history, this analysis appears to be an accurate common denominator of all the groups on the FTO list.53 Consequently, groups that
engage in violent activity in pursuit of political goals run the risk of being declared an FTO by the United States.54 However, not all groups that engage in such actions will be
designated.55 In other words, while the analysis can assist in understanding why groups
with different goals can all be clustered together on a single list, it does not explain which groups or factors lead a group being added to or omitted from the FTO list.56
51 Pillar, Terrorism and U.S. Foreign Policy, 153.
52 Wadie E. Said, “The Material Support Prosecution and Foreign Policy,” 86 Indiana Law Review 543 (Spring 2011): 566–67
53 Department of State, Country Reports on Terrorism 2011, released July 2012. 54 Said, “The Material Support Prosecution and Foreign Policy,” 567.
55 Ibid. (for example, the Cambodian Freedom Fighters, the IRA, and the PLO). 56 Ibid., 568.
D. THE RISK OF ABUSE BY THE EXECUTIVE BRANCH
The literature suggests that whether an organization will or will not be designated an FTO depends on the third element required for designation, whether the organization poses a threat to U.S. national security. The evaluation of this element, and the public policy factors involved in this evaluation, is done at the exercise of the secretary of state’s discretion and is not subject to judicial review. As a result, a common criticism of the FTO designation process is that it puts too much power in the hands of the Executive Branch in determining which organizations will be named a terrorist organization, and that little effective oversight of the Executive Branch occurs in this decision-making process.57
Some members of the judiciary have also made this criticism. The D.C. Circuit Court of Appeals is statutorily identified as the sole judicial authority empowered to review the FTO designation, when the organization challenges its designation. The court has determined that it can only review the first two statutory elements of the designation process, that is, whether the organization is a foreign entity and whether it engages in terrorist activities. The final statutory factor, whether the terrorist activity committed by the organization threatens U.S. security, is not subject to judicial review58 because
foreign policy decisions of the Executive Branch are beyond the judicial function of the court.59 Not all judges agree, as Judge Alex Kozinski of the Ninth Circuit Court of
Appeals, wrote in a non-binding opinion:
I can understand the panel’s resistance to interfere with matters of National Security, but the entire purpose of the terrorist designation process is to determine whether an organization poses a threat to national
57 Shapiro, “The Politicization of the Designation of Foreign Terrorist Organizations,” 548 (“Congress tightened its reign on the Judicial Branch in 2004, and amended the designation statute to impose greater limitations on the opportunities for judicial review”); Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108–458, Section 7119, 118 Stat. 3638, 3801–03 (2004).
58 People’s Mojahedin Organization of Iran (“PMOI”) v. Department of State, 182 F. 3d 17, 23 (D.C. Cir. 1999); Shapiro, “The Politicization of the Designation of Foreign Terrorist Organizations,” 555.
59 People’s Mojahedin Organization of Iran, 182 F. 3d at 23 (“These are political judgments,
‘decisions of a kind for which the judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.”); Shapiro, “The Politicization of the Designation of Foreign Terrorist Organizations,” 555 (“the court determined that such review of the foreign policy of the Executive Branch was beyond the judicial function for a court”).
security under the constitution, the State Department does not have carte blanche to label any organization it chooses an FTO and make a criminal out of anyone who donates money to it. Far too much political activity could be suppressed under such a regime.60
Others who have evaluated the FTO designation process have expressed this sentiment. In short, they argue that because the statutory scheme minimizes the potential an organization can overturn its FTO designation, too much power over the designation is consolidated in the Executive Branch.61
Among the concerns expressed is that the designation process occurs without the organization’s knowledge or ability to challenge the evidence relied upon. Also, to the extent that classified information is relied upon, the organization will never have the opportunity to review or counter the information.62 This fact, combined with the lack of
guidance on what factors might allow a group to overcome its designation, creates the concern that the Executive Branch may not exercise its power appropriately.63 The
appropriate exercise of the Executive Branch’s power and the concern over the power being exercised appropriately, is exacerbated by the fact that in the 17 years since the FTO list was created, the FTO designation has been challenged in court by only a few organizations and no designation has ever been repealed by a court or by Congress. While the literature highlights this concern, no author has identified a case in which the Executive Branch inappropriately exercised its power.