Colin Powell's List
The targeting of terrorist groups harks back
to earlier repression of dissent
by Robert Dryfuss
The Nation magazine, March 25, 2002
Colin Powell has a list. And, trust me-you don't want to be
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
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 z
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 anti-terrorist 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 (NCRI3, 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 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
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
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.
Robert Dreyfuss is a contributing editor of The Nation. Research
support was provided by the Investigative Fund of the Nation Institute.