Can States Be Terrorists? An Interview with Dr. David Luban

From Georgetown University, this is Voices on Islamophobia, a podcast by the Bridge Initiative. I’m Hannah Sullivan. Throughout the month of April 2019, the topic of Foreign Terrorist Organizations made major headlines in the U.S.. On April 8th, U.S. Secretary of State Mike Pompeo announced that the United States planned to designate Iran’s Islamic Revolutionary Guard Corps, the IRGC, as a Foreign Terrorist Organization.

[Voice of Mike Pompeo]: I am announcing our intent to designate the Islamic Revolutionary Guard Corps, including its Qods Force, as a foreign terrorist organization.

This designation marked the first time that the U.S. has labeled a foreign government entity as a terrorist organization.

[Voice of Mike Pompeo]: This is the first time that the United States has designated part of another government as an FTO.

On today’s episode, I sit down with Dr. David Luban, a professor of Law and Philosophy at Georgetown University, to talk about what it means to label organizations–or state entities–as Foreign Terrorist Organizations. In addition to his professorship at Georgetown, Dr. Luban is the Distinguished Chair of Ethics at the Stockdale Center for Ethical Leadership at the Naval Academy. Dr. Luban’s scholarship centers on ethics in the legal and military professions.

My first question to Dr. Luban was about the Trump Administration’s designation of Iran’s Islamic Revolutionary Guard Corps, the IRGC, as a Foreign Terrorist Organization.  

Hannah Sullivan: What was your reaction when you heard Secretary Pompeo’s announcement that the US planned to designate the IRGC as a Foreign Terrorist Organization?

Dr. David Luban: I was surprised. I don’t think it was entirely inappropriate, but it was completely unusual because it was the first time ever that an agency of a government was declared to be a foreign terrorist organization. There have been times in the past that the U.S. and others have talked about states that sponsor terrorism. But to actually call an organ of an equal sovereign state a terrorist organization, it seems to me is a big new development. Now, the reason that I don’t think it’s entirely unjustified is that the Revolutionary Guard has promoted acts of the kind of violence that the law has talked about as terrorism.

HS: Who is authorized to designate an organization as an FTO?

DL: That’s the Secretary of State. The Secretary of State keeps a kind of running list. Names of organizations are added, names are deleted. I think that right now there are 67 designated Foreign Terrorist Organizations, and interestingly 55 of them are associated with Islam. And in fact, the last 32 designations have been Islamic organizations, many of them regional branches of ISIS.

HS: And, do you know approximately when those designations took place?

DL: They started in 1997, and it’s a rotating list ever since. It’s a variety of players. One of the very first was the Japanese religious cult Aum Shinrikyo that released sarin gas in a Tokyo subway for cultist reasons. Others are the Basque revolutionaries…Al Qaeda…Hamas…Hezbollah. Hezbollah is in an interesting position because it’s one of the most powerful, if not the most powerful, political organizations in Lebanon, but it is not the same as the Lebanese state. The Iranian Revolutionary Guard is part of the state itself, so this is a moment in which the United States is declaring that a state can itself be a terrorist organization.

HS: And what are the legal ramifications of an FTO designation? Who does this actually affect?

DL: Well, it might lead to US sanctions being imposed. I don’t think that the sanctions require the FTO designation, but that would be a natural road to it. One of the biggest effects is that there is a US crime under which a lot of people who are suspected terrorists are prosecuted, and that is the crime of material support for terrorism. One of the three laws about [terrorism] makes it a crime to give material support to a designated terrorist organization, an FTO. And what’s material support? Well, it’s very broad. It’s communications devices, like giving a cell phone. Or transportation devices. Money. Obviously, weapons are material support. But I think that the most interesting is money because some designated FTOs like Hamas and Hezbollah have so-to-speak social services providers as well as militants involved in them. And you can imagine somebody who wants to give to the social services side with no intention that it be used for military activity or terrorist activity. Doesn’t matter. They’ve still committed material support, provided that they knew it was a designated FTO. So it cuts very broadly. So you can imagine that there might be collection baskets going around in mosques to support social services at various places in the Middle East. If that money is actually going to a designated FTO, then the criminal implications are very severe. The punishment for material support for terrorism can be decades in prison.

HS: So the definition of material support, then, is very broad. Would you say that has civil rights implications?

DL: It does, and there’s actually a very interesting story behind it. There was a piece of litigation in the Supreme Court. The case is called Humanitarian Law Project. It had been going on for 13 years. It actually involved as a lawyer David Cole, who is one of my colleagues at Georgetown Law who is now on leave as the Legal Director of the ACLU. The clients were a retired judge and a law professor who wanted to teach non-violent dispute resolution to two designated FTOs, one in Turkey and one in Sri Lanka. And they wanted to get advance clearance that they wouldn’t be prosecuted for that. The government wouldn’t give them advance clearance so they went to court. And part of the problem for them was that giving services is a form of material support, and providing personnel including yourself is a form of material support. So some of the issues that were raised in the litigation which bounced around the lower courts for thirteen years before it got to the Supreme Court were, is this a violation of First Amendment rights of free speech?, because all they wanted to engage in was speech. Is it a violation of the First Amendment right of freedom of association? Because what they wanted to do was to associate with the groups in order to give them instruction. And in all of this litigation, the government won on some issues and lost on some others. And over the thirteen years, Congress kept rewriting the law to avoid these constitutional problems. It finally got to the Supreme Court. And the Supreme Court said that there wasn’t a constitutional problem in the government side, so that the law could be applied to those facts. But the frustrating thing was that in the opinion, the court said, “We’re not going to talk about any other facts that might be included.” So, for example, there was a question that was raised in the oral argument: what about a lawyer who writes a brief on behalf of a designated FTO? Is that material support? And the government said, “well, we’re not going to say that it isn’t.” And the Supreme Court said, that’s a hypothetical, that’s not the facts of this case, so we’re not going to say, either. In the aftermath of that decision–which was very narrow–the court refused to lay down a rule about what is and is not material support for the organization. There was a lot of discussion among humanitarian disaster relief organizations who sometimes have to deal with designated FTOs in order to get food and medical supplies that they’re trying to deliver to the affected people. So, especially in the wake of the tsunami that hit Sri Lanka, the only way that aid organizations could get supplies to the afflicted people was through the Tamil Tigers (which was a designated FTO), because it was the Tigers’ territory. So organizations like the Red Cross would go to the Justice Department and say, “Will you give us an advance declination (that means a declaration that you’re not going to prosecute us) if we do this?” And the Justice Department always said no, we’re not going to give you this advance declination. Maybe we won’t prosecute you, but you’re rolling the dice. So the big civil liberties worry there was the tremendous chilling effect. If there’s any kind of contact at all with an FTO for any purpose no matter how benign, that might be material support and it might not. And the Supreme Court, I think, deliberately left that vague to have a kind of in terrorum effect to scare people away from having anything to do with FTOs.

HS: That’s really interesting. So it sounds like there aren’t really any clear limitations on what constitutes material support in that sense.

DL: I think that that’s right, because the forms of material support are so broadly defined. You know, what does it mean to provide a communications device? Is it really, for example, a federal crime for somebody to give her brother who’s a member of an FTO a cell phone for a birthday present? We don’t know. Is it material support for a clerk at a hotel who knows that somebody is a member of an FTO to register them? Is that providing them a safe house? Is it material support for a taxi driver to give them a ride? Or an Uber driver?

HS: So how does the United States actually define terrorism? Is there a specific definition that’s being used for FTO designations?

DL: There is. There are several different definitions of terrorism in U.S. law. The one that’s used for FTO designations comes out of immigration law. And the main purpose of having a definition of terrorism in immigration law is because we want to be able to exclude terrorists (or potential terrorists) from coming to the United States. It’s a broad definition. It essentially defines terrorism as doing something that is illegal in the home country that would also be illegal in the U.S., and may involve crimes of violence. So, it’s broad in several ways. So for example, any time somebody uses a gun for anything other than mere monetary gain like robbery. If somebody shoots at their enemy back in the home country…you don’t have to hit them, just shoot. Well, that’s terrorism. What’s a terrorist organization under that law? It’s two or more people who have decided to engage in terrorist activity. So it’s a very broad-ranging definition. And using that, the Secretary of State can declare somebody or something a Foreign Terrorist Organization because it falls under the terms of that immigration law.

HS: And are there other definitions of terrorism under U.S. law?

DL: Yeah. There’s one in just general criminal law, and that’s one that actually comes very close to what most international lawyers think the definition of terrorism is, and that’s violent criminal activity that is intended to either terrorize a population or to coerce or intimidate a government into doing something. The international element is if it involves a border crossing. U.S. law also defines domestic terrorism as the same kind of thing, but happening within the territorial boundaries of the United States.

HS: So, is there a standard definition of terrorism that’s agreed upon in international law?

DL: This is a very interesting question because you know, international law, there’s no world government that could standardize the definition. And even though there’s something that we call the world court, it actually doesn’t have the power to announce binding definitions. For many, many years, states at the U.N. have been trying to negotiate a treaty that defines terrorism, but they haven’t been able to come under any agreement. And the reason is that there’s a lot of politics buried in that effort. You know the old saying is that one person’s terrorist is another person’s freedom fighter. And especially a number of governments that have been sponsoring or sympathetic with anti-colonial movements over the years, they have said, well, you know, that that type of terrorism is okay because they’re trying to decolonize. So one result is that states are reluctant to commit themselves to a definition of terrorism. And so far, that effort in the U.N is stalled.

There is one international court–it was a criminal tribunal involving Lebanon–that’s announced that there is in customary international law a definition of international terrorism. Customary international law means law that isn’t written in treaties, but that emerges from the practice and ongoing jurisprudence of states. And that court said that the definition of terrorism is criminal activity designed to terrorize a population or coerce a state. And then they threw in a third element, [which is that] it’s got to cross borders to make it international. But it’s the first two pieces: that it’s crime, and that it’s designed to intimidate or terrorize, that makes it terrorism.

And, there’s still a lot of unsettled issues. States can’t agree on whether a state can itself be a terrorist, whether there is such a thing as state terrorism. And I think that’s one of the reasons that Secretary Pompeo’s declaration that the Revolutionary Guard is a terrorist organization is important, because it stakes out territory that the United States has been reluctant to stake out before. And that a lot of other states have been reluctant to stake out because they think, if we do it, then it’s not terrorism. We don’t want that nasty label to be stuck onto us.

There are other states that have taken the position that, well yes we do want to be able to label our adversaries as terrorist states. There is international disagreement about whether acts that would be called terrorism are still terrorism if they’re committed in wartime. Maybe they’re just the kind of violence that goes along with war. And maybe they’re war crimes. But states don’t agree on whether or not terrorism is the right label for those. So there’s still a lot of ambiguity and it all goes back to that basic question of, who’s a terrorist? Roughly, if people you don’t like who engage in that kind of political violence are terrorists. People you do like that engage in that kind of political violence are freedom fighters, or mere criminals or whatever.

HS: Your point about states disagreeing about definitions of terrorism seems especially timely in light of the Christchurch attacks in March, when 50 Muslim individuals were murdered by a white supremacist attacker. Those attacks were quickly condemned as terrorism, which came as a welcome surprise to many because at least in recent history, the term “terrorism” has been almost exclusively to refer to talk about acts of violence that were carried out by Muslim perpetrators. But you also hear the argument that the word “terrorism” has lost its ability to take on any kind of objective meaning because it is so frequently associated with Muslims and with Islam. In light of conversations like these, do you think it’s appropriate to use the term “terrorism” to talk about white supremacist violence?

DL: Well, I would be entirely in favor of it. Partly because, we don’t want words that have these kinds of negative connotations, you know, to be code words for something that’s directed against just one group. I mean, I think it would be entirely contrary to the whole idea of rule of law if we were to say, “well, if the people we don’t like commit this crime, then it’s terrorism. But if people that are more like us do it, then we’re not going to call it terrorism.” It should be the objective nature of the act, and not the identity of the actor, who defines it.

Now, in the New Zealand shooting, I think there’s very little question that this was a terrorist attack under virtually any definition that you can think of. It involved acts of violence. It was against a civilian population. It was meant to terrorize that population. It was meant to send a political message. And it even had the international dimension to it because the shooter had traveled from Australia to New Zealand in order to do it. So I think there would be no question at all that that ought to be labeled terrorism.

I should say that if you look at the list of designated FTOs, even though most of them are Islamic organizations, there are two branches of the Irish Republican Army that are on that list…Basque terrorists are on the list…the Greek revolutionary struggle movement of a few years ago are on that list…so it’s not entirely restricted to Islamic terrorism.  

HS: And just given the fact that, especially recently, terrorism has almost exclusively been applied to Muslims and Islamic groups, do you think that from a legal perspective we can prosecute terrorism objectively?

DL: Well, I think with law there are always two legal perspectives. One is the law on the books, one is the law in action, the way that officials actually apply it. The law on the books can be applied quite objectively. There is nothing in any of the laws that single out Islam or anybody else. And it is pretty unclear if there was an attempt to do that, it would be unconstitutional because it would be a violation of freedom of religion. Now, how about the law in action? Well, the law in action is always based on a principle that prosecutors have discretion about which investigations to pursue, and which ones not. Which people to prosecute, and which people not. And I think that prosecutors are often quite objective in doing that, but federal prosecutors are political appointees, the top prosecutors, the United States Attorney in every district…even though the people in the office aren’t political appointees. And there’s no question that a federal prosecutor’s agenda of who to go after and who not might be influenced by popular opinion, by political opinion. If there’s a particular panic about an issue, then it would be natural for the Justice Department to say well, we’re going to have a task force that’s going to investigate and prosecute those issues. So in action, it could very well be that there’s a thumb on the scale on the side of prosecuting Islamic terrorism over and above terrorism by anybody else.

HS: And finally, circling back around to the issue of Foreign Terrorist Organizations, in your opinion, what are the long-term implications of designating the Iranian Revolutionary Guard as an FTO, from a legal perspective?

DL: Well, one is that it would establish a precedent for states labeling organs of other governments as terrorist organizations. So the way that customary international law forms is that states begin a certain kind of practice, and they back it up with an opinion that they’re doing it because that’s the law. And so you’re constantly in international law looking around to see, what are states doing, what are states saying, about the law. And if a very heavy hitter like the United States says, we’re labeling an organ of another state as a terrorist organization, then that means that it begins to push the scale of customary law to saying that states and state organs can be terrorist organizations. Just on the not legal but propaganda front, the United States opens itself to charges of terrorism by its adversaries. If I’m remembering right, the Iranian government responded by saying, well we think the United States is a terrorist organization.

HS: And do you think those types of statements might hold any weight?

DL: You know, if enough of them get going, then customary international law might change so that it recognizes that states can be terrorists, can themselves be terrorists. What the implications are long term is hard to say. It always depends in law not just what the words on paper are, but how it gets applied in practice. But you know, I think that the wars of words that come from a legal designation–this state is a terrorist, that state is a terrorist–in my view, that’s not particularly helpful for international diplomacy or international peace.

HS: Well, Dr. Luban, thank you so much for speaking with me today. It’s really been a pleasure. We’ve benefited from everything you’ve shared with us, so thank you.

DL: It was a real pleasure talking with you, Hannah.

OUTRO:

Shortly after this podcast was recorded, on April 30th, the Trump Administration announced its intent to designate the Muslim Brotherhood as a foreign terrorist organization, an action that has been widely criticized by politicians and human rights groups as posing a danger to Muslim communities across the United States.

To stay informed on this topic and other issues related to Islamophobia, follow the Bridge Initiative’s research on its website, at bridge.georgetown.edu.