Colin Powell has a list. And, trust me–you don’t want to be on it.
Of course, you might already be on the list, but you won’t find that out until a reporter calls to ask about it, or until the FBI shows up at your house at 4 AM.
The list in question, or rather the lists, concern groups that the government labels foreign terrorist organizations, or FTOs, along with funders, supporters and business entities that aid them. The State Department list of FTOs, created by the 1996 Anti-Terrorism and Effective Death Penalty Act and first issued in 1997, currently includes twenty-eight groups. Since September 11, other lists have proliferated. By executive order, on September 23, President Bush–in a declaration of “national emergency”–created another list, maintained by the Treasury Department, which now contains 153 “groups, entities and individuals” whose assets are subject to seizure. Yet another list, published in the State Department’s annual “Patterns of Global Terrorism,” names groups that don’t merit FTO designation but are considered bad guys anyway. And yet one more list, the terrorist exclusion list, set up by Attorney General Ashcroft’s USA Patriot Act last October, can speed the deportation of, or deny admittance to, immigrants charged with involvement in a group on the State Department’s list.
Taken together, the lists have emerged as a handy tool to suppress dissent, dissuade Americans from backing insurrectionary movements overseas, and deport immigrants tied to the groups.
Here’s how it works. Under the 1996 law, passed in the wake of the bombing of the federal office building in Oklahoma and the first attack on the World Trade Center, every two years the State Department is required to come up with a list of organizations deemed terrorist. For each one, it creates a file–called the administrative record–which may include everything from press clippings to highly classified spy information gathered by US intelligence agencies and the Justice Department. Once listed, a group’s assets are subject to being frozen, its officials and members are barred from entering the United States and any American who provides a listed group with material support or resources is a criminal who can be fined or sentenced to ten years in prison.
The law has created a bewildering tangle of law enforcement and politics that holds enormous potential for misuse and abuse. It is also as arbitrary as it is draconian: The departments of State, Treasury and Justice can tie an organization to one end or another of the “axis of evil” almost on a whim, whether they are Al Qaeda-style terrorists or a group engaged in a civil war or liberation struggle.
So far, prosecutions have been very limited, though several organizations–including Irish and Iranian ones, as we shall see–have felt a severe impact from being listed. But the sweeping powers granted the State Department give the federal government the ability to ban and effectively close down any cantankerous group that it doesn’t like. “The government has carte blanche to pick and choose organizations to put on these lists,” says Nancy Chang of the Center for Constitutional Rights, who points out that foreign policy interests often determine who is added and who is not. And, she says, once a group does end up being listed, it’s just about impossible to get off. “It’s a highly politicized process,” says Chang.
In many ways, the State Department’s list-making harks back to earlier periods of repression of dissent, from the post-World War I Palmer Raids against socialists and anarchists to the 1950s McCarthyite anti-Communist hysteria. Under the new laws it is illegal to support any group designated as a terrorist organization. The fact that it is illegal for Americans to express solidarity with movements around the world–even odious ones–is shocking enough on its own. But now that President Bush is waging a global “war on terrorism,” US attacks against alleged terrorists in the Philippines, Colombia, Somalia, the Middle East or elsewhere are likely to swell the list of designated terrorist groups, if only by sparking new resistance movements. And just as the creation of the House Un-American Activities Committee in 1938 soon saw Congressional investigators joining police Red Squads in raids on Communist offices, the terrorism lists could be used to justify federal and state assaults against a wide range of dissident groups. It’s not inconceivable, for example, that the antiterrorist hysteria could grow to include a crackdown against protesters in the post-Seattle global justice movement, some of whom have engaged in occasional property damage that could have them designated under the very broad definition of terrorism in the law.
The politicization of the list began even before it was created. It was no secret that Israel and pro-Israeli groups in the United States saw it as a means to weaken Arab and Islamic organizations that opposed the Oslo peace process, Israel’s existence or both–and, in fact, those groups predominate. In January 1997, concerned that the State Department was too slow in implementing the law, the pro-Israeli Anti-Defamation League blasted then-Secretary of State Warren Christopher for dragging his feet, warning that the FTO designations should be made as quickly as possible. According to The New Yorker, Newt Gingrich, then Speaker of the House, got wind of the fact that Hamas and Hezbollah, two anti-Israel Muslim organizations, might not be included, and he demanded action. They were included, along with the Abu Nidal organization, the Popular Front for the Liberation of Palestine, the Democratic Front for the Liberation of Palestine and nine other Palestinian and Islamic groups. (More recently, pro-Israel groups in Washington, emboldened by the apparent shift in US opinion about Yasir Arafat, the Palestine Liberation Organization chairman, have been urging the State Department to add the tanzim, armed elements of Arafat’s Fatah faction of the PLO.)
In a similar vein, after the December 13 assault on India’s Parliament by Islamic extremists, the State Department scrambled to add two Pakistani-based Kashmiri groups to the list. But the debate around those two groups has been swirling for years–and not because of questions about the proclivity of the two groups, Lashkar-e-Taiba and Jaish-e-Muhammed, to engage in terrorist violence. (“They assassinate civilians,” says Selig Harrison, director of the national security project for the Center for International Policy and a veteran Asia observer. “They assassinate police. They really are terrorists.”) During the 1990s, however, while the State Department’s terrorism office was demanding that the two be added, some of its Asia hands argued against it, for fear of offending Pakistan. More recently, says Harrison, “they felt it would undermine relations with [President] Musharraf.” Even the Justice Department weighed in, asserting that it could defend the designation of the two groups as terrorists. But still the State Department demurred. The Bush Administration continued this policy even after September 11 until the murderous events in New Delhi created countervailing pressure from India. Bingo! Add two groups.
On the other hand, the People’s Mujahedeen Organization of Iran, a moderate Islamic guerrilla group opposed to Iran’s theocratic regime, is in court arguing that it has no business being on the list, and that it was put there only because the United States was trying to curry favor with the Iranian government. Indeed, two years ago, when asked why the State Department had decided to add the National Council of Resistance of Iran (NCRI), a sister organization of PMOI, to the list, Martin Indyk, a senior State Department official, said bluntly, “The Iranian government had brought this to our attention.” The action on NCRI came despite the fact that twenty-eight senators and more than 200 representatives protested the inclusion of the two Iranian groups. The State Department continues to defend the inclusion of the two groups–which continue to maintain offices in downtown Washington–even though their target, the government of Iran, is now officially part of the “axis of evil” and has long been listed by the State Department as a state sponsor of terrorism.
Heavyweight organizations that have elbowed their way to legitimacy and even near-state status while using paramilitary and even terrorist methods, such as the Palestine Liberation Organization and the Irish Republican Army, aren’t listed, though had the State Department been compiling this list back in the 1970s, when the PLO and the IRA had decidedly less prestige, they might well have topped it. The same goes for the African National Congress, which waged a violent campaign against South Africa’s apartheid regime, and for Central American insurgencies during the cold war. Had the law been in effect then, and had those groups been on it, Americans who supported Irish, Palestinian, South African and Central American guerrilla movements would have been labeled as criminals.
Since 1997 Iranian, Kurdish and Sri Lankan groups have challenged the law in court, managing to eke out limited victories on the margins but unable, so far, to get themselves removed from the list or to overturn the law on constitutional grounds. The most recent organizations to challenge their inclusion on the list are the 32 County Sovereignty Movement and the Irish Republican Prisoners Welfare Association. Last year both groups were accused by the State Department of being aliases of the Real IRA, an Irish republican group opposed to the US- and British-led peace process in Northern Ireland. Although the Real IRA is illegal in Britain, its allied aliases are not–and both groups have gone to court in Washington to have their designation overturned. “What we do is open, legal and lawful, both here and in the United Kingdom and Ireland,” says Martin Galvin, a member of the 32 County Sovereignty Movement and a plaintiff in its legal challenge.
Galvin only found out that his group was listed when reporters called him. “As a result of this designation, American members and supporters of 32 County have ceased all our advocacy on behalf of 32 County,” says Galvin, adding that the group has closed its post office box, shut down its website, halted distribution of its publications and had its bank account shut. Galvin himself has stopped writing a column and giving speeches. Lynne Bernabei, the Washington attorney representing the two Irish organizations, says that the organizations were added to the list based in part on information provided by the British and Irish governments and in part on the word of David Rupert, an FBI informant whose veracity is questioned by the two Irish groups. But because the administrative record in the case contains classified material and is sealed, it’s hard to make the case that the designation was made in error.
The biggest obstacle for any group seeking to be delisted is the fact that the evidence used to target it is secret. In a 1999 ruling, the US Court of Appeals for the District of Columbia Circuit pointedly noted that the law does nothing to prevent the Secretary of State from using gossip, innuendo, misinformation and disinformation in assembling the case against a group. The court noted that the administrative record “consists entirely of hearsay, none of it was ever subjected to adversary testing, and there was no opportunity for counter-evidence by the organizations affected.” Still, the court upheld the law.
In the past two years, two small but significant victories have been won. In the first, involving PMOI and NCRI, the two Iranian groups, a court ruled last summer that a listed organization has the right to present reasons why it ought not to be included. “The Anti-Terrorism and Effective Death Penalty Act makes no provision for notice that a group is being named, and no provision for a hearing,” says Ronald Precup, a Virginia attorney who represents NCRI. But having the right to be heard guarantees little: The State Department, taking advantage of imprecision in the court ruling, has agreed not to an actual face-to-face hearing but simply to accept written data challenging the designation. That process, begun last summer, was put off after September 11 and is proceeding only slowly.
Second, in October another court ruled that the 1996 law violated the Constitution when it included training and personnel among the things US citizens and residents may not provide to listed groups. (The law defined material support to include “currency or other financial securities, financial services, lodging, training, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation and other physical assets, except medicine or religious materials.”) That means that sympathetic groups could, for instance, provide listed organizations with training in legal advocacy or in representing their group before the United Nations, says David Cole, a Georgetown University law professor who argued the case on behalf of the Humanitarian Law Project, a California-based human rights group.
Both Precup, on behalf of NCRI, and Bernabei, on behalf of 32 County, are seeking the full release of the administrative records compiled in the two cases, but that seems unlikely. Precup plops a three-inch-thick stack of papers onto a table–the unclassified version of the record used to list NCRI. It contains reams of publicly available clippings and even a speech by President Clinton, along with swaths of blacked-out material that the Iranian groups are forbidden to see. Meanwhile, PMOI and NCRI are being targeted by law enforcement: In December two dozen FBI agents with weapons drawn raided the home of an Iranian activist affiliated with the organizations at 4:30 am, seizing a number of computers and stacks of documents, including lawyer-client materials. The warrant for the raid was supported by an affidavit, but the affidavit, like the evidence, is secret and classified.
In one of the first cases brought against people for providing material support to a listed organization, in February 2001 the FBI arrested seven alleged PMOI members for soliciting funds in the Los Angeles area. In another Kafkaesque twist to the terrorism law, those charged with violating its terms are prohibited from challenging their arrests on the grounds that the listed group is not a terrorist organization. “A defendant in a criminal action shall not be permitted to raise any question concerning the validity of the issuance of such designation as a defense or an objection at any trial or hearing,” reads the law. That’s true even if the funds gathered were intended for charitable or humanitarian uses, which gives pause to donors who might consider supporting any one of a number of causes in the Third World. “The chilling effect of these laws is substantial,” says Cole.
The newer lists, yet to be challenged in court, have raised other troubling questions. The Treasury Department’s list, carrying severe financial consequences, doesn’t even require the compiling of a record of evidence, just a determination by the department that the target belongs on it. Ditto for the so-called terrorism exclusion list, aimed at noncitizens. “There are a million and one questions about this new list,” says Chang of the Center for Constitutional Rights. “It can include domestic as well as foreign groups.”
The government’s antiterrorist list-making is, of course, just one component of the War on Terrorism, a war the White House pledges will go on for many years to come. Whatever its chances for success overseas, at home it has already succeeded in undermining civil liberties to an alarming degree–from the government’s new surveillance and detention powers to military tribunals, the use of the armed forces for domestic law-and-order duties, and stepped-up monitoring of political groups by both the FBI and CIA. Powell’s list–and all the other lists–are bringing America a little closer to the point where it will be illegal to disagree about what our country’s foreign policy ought to be.