PolicyWatch #1643

By Patrick Clawson
March 18, 2010

The United States maintains a range of “terrorist lists,” of which the Foreign Terrorist Organizations (FTO) list is one of the better known. But in two recent court cases, the U.S. government has offered arguments that raise questions about the purpose of the list.

FTO List vs. State Sponsors List

Another list is that of state sponsors of terrorism. The act of naming a foreign government as a terrorism sponsor is one instrument among many to affect the general foreign policy stance of the country concerned. Yet in practice, the state sponsors category has become a list of governments Washington simply does not like, often with little connection to terrorism; witness the continued presence of Cuba and the longtime presence North Korea. By contrast, governments that actually do sponsor terrorism but that Washington does not wish to single out are omitted from the list. A case in point is Lebanon, whose governing coalition includes Hizballah, the terrorist activities of which are protected and defended by the Lebanese government.

The decision to attempt to affect a state’s foreign policy differs substantially from that of prohibiting material support to an organization, the latter being the objective specified in the law mandating the FTO list. Whereas the decision to influence a state’s foreign policy is political in intent, blocking support to terrorist groups is much more like a policing matter, on which the United States can hope for cooperation from foreign governments irrespective of their views about U.S. foreign policy. If decisions about listing organizations as sponsors of terrorism are made based on general foreign policy considerations rather than on evidence about terrorist activities, the list may well be seen as a political tool, in which case other governments will be less likely to cooperate in blocking material support to listed groups.

The Intelligence Reform and Terrorism Prevention Act of 2004 stipulates that even if an organization is engaged in terrorism or retains the capability and intent to do so, national security considerations may warrant its removal from the FTO list. The law, however, does not provide for the reverse — that is, maintaining a listing for nonterrorist national security reasons. Instead, the law requires that a group be maintained on the list only if it “engages in terrorist activity.” When in 1999 the State Department dropped three groups from the FTO list, officials seemed to endorse the position that to remain on the list after the biennial review, a group had to have been involved in terrorist activities during the preceding two years.

The PKK Case

In February 2010, the U.S. Supreme Court heard arguments in Holder v. Humanitarian Law Project, in which the latter entity wanted to provide legal advice to the Kurdistan Workers Party (PKK). The PKK has changed names several times, with the most recent being Kongra Gele Kurdistane (Kurdistan People’s Congress). Further, it is worth noting that the PKK has a history of claiming to abandon terrorism but not doing so. Six months after Turkey captured PKK leader Abdullah Ocalan in February 1999, the organization declared a ceasefire and said it would disband in February 2002. But the PKK moved its terrorists from Turkey to northern Iraq and, within a few years, resumed its terrorist activities. This scenario illustrates the risk of taking at face value a group’s claim that it has abandoned terrorism.

Much of the argument against the Humanitarian Law Project in the Supreme Court case turned on the scope of the term “material support.” But an additional issue involved the character of the support provided, including advice on why and how to stop terrorist activities. Solicitor General Elena Kagan, who represented the U.S. government, asked, “Can you say to an organization, look, you guys really should lay down your arms?… Well, now you can’t. Because when you tell people, here’s how to apply for aid and here’s how to represent yourself within international organizations or within the U.S. Congress, you’ve given them an extremely valuable skill that they can use for all kinds of purposes, legal or illegal.” In this statement, Kagan suggests that it is illegal to advise groups to abandon terrorism. And yet one struggles to see how such a position advances the objective of countering terrorism. The State Department’s website states, “FTO designations…are an effective means of curtailing support for terrorist activities and pressuring groups to get out of the terrorism business.” Surely it is appropriate to encourage groups to drop their terrorist activities, as the United States successfully did with some extremist Irish Republican groups and the Palestine Liberation Organization (PLO).

The People’s Mujahedin of Iran Case

The People’s Mujahedin of Iran (PMOI), aka Mujahedin-e Khalq (MEK), has been on the FTO list since the list was started in 1997. More than thirty years ago, a faction arising from PMOI engaged in terrorism against Americans. Yet if the criterion for being on the FTO list is whether a group has ever engaged in terrorism, then many organizations with which the U.S. government has important dealings, such as the PLO, belong on the list. Every two years after 1997, the FTO listing of PMOI was reviewed and retained, until 2004, when the time period for mandatory review was increased to five years. The decision by Secretary of State Condoleezza Rice in 2009 to maintain the FTO listing of PMOI did not set forth detailed reasons or criteria, other than stating that “the circumstances that were the basis for the 2003 redesignation…have not changed in such a manner as to warrant revocation.”

In repeated yet unsuccessful bids, PMOI has sought to have its designation overturned by U.S. courts, in cases decided in 1999, 2001, 2003, and 2004. By contrast, the group has had greater success in more recent attempts in Europe. Listings of PMOI as a terrorist organization by the European Union (EU) were in 2006-2008 repeatedly overturned by the European Court of Justice, and the EU Council of Ministers removed PMOI definitively from its terrorist list in January 2009. Two years prior, Britain’s Proscribed Organisations Appeal Commission (POAC), which exists solely to review terrorist designations and has access to all classified British government information, ruled, “Having carefully considered all the material before us, we have concluded that the decision [made] at the First Stage [that PMOI was engaged in terrorism] is properly characterised as perverse. We recognise that a finding of perversity is uncommon.” In 2008, the English Court of Appeal stated, “The reality is that neither in the open material nor in the closed material was there any reliable evidence that supported a conclusion that PMOI retained an intention to resort to terrorist activities in the future.”

In January 2010, oral arguments were completed in the U.S. Court of Appeals-D.C. Circuit in the case of PMOI v. U.S. Department of Stateregarding the 2009 listing of the group. During the hearing, the government’s counsel acknowledged that the public portion of the administrative record was devoid of any evidence to justify the secretary of state’s decision. In other words, no unclassified statement had been released that summarized, or even hinted at, the classified evidence used by Secretary Rice in reaching her decision.

The 2009 decision to continue listing PMOI was striking on several grounds. First, according to the New York Times, the State Department’s top counterterrorism official, Ambassador Dell Dailey, pushed to have PMOI delisted, but Secretary Rice overruled Dailey and other counterterrorism professionals. Second, the secretary’s decision came after the European court cases won by PMOI, in which the group prevailed against repeated efforts by European governments to continue listing it — listings widely perceived to be for foreign policy purposes rather than based on counterterrorism principles. Third, the State Department’s Country Reports on Terrorism contain numerous nonterrorist allegations against PMOI without offering any indication that the group continues to engage in terrorism. The most recent episodes cited are several years old, and those incidents arguably fit the Geneva Conventions’ criteria for irregular warfare rather than terrorism.

In light of these factors, and given that the original designation was described by the official then serving as assistant secretary of state for Near East affairs as an action taken after the Iranian government raised the matter, one can only wonder if the secretary’s decision was based on foreign policy considerations outside the criteria set out in the law.

It would seem to be in the U.S. interest to encourage PMOI to disengage from all terrorist activities. Perhaps the U.S. government does not accept the group’s oft-repeated claim to have abandoned terrorism. If so, Washington should inform PMOI of steps it must take to establish its bona fides. Failure to do so will only feed the perception that the continued FTO listing of PMOI is for reasons other than terrorism.

Patrick Clawson is deputy director for research at the Washington Institute for Near East Policy.

http://www.washingtoninstitute.org/templateC05.php?CID=3188

PolicyWatch #1394
By Raymond Tanter
August 4, 2008

Throughout summer 2008, Iraqi politicians tied to Tehran have put increasing political pressure on the U.S. government to allow Baghdad to control Camp Ashraf, the base housing Iran’s main opposition — the Mujahedin e Khalq (MEK). Options regarding Iraqi-based MEK members are limited, but include the following: sending them to the United States; allowing them to stay in Iraq under Iraqi control; dispersing them to surrounding countries, including Iran; or maintaining the status quo with the continued protection of the U.S. military. Since each option is problematic, finding a solution is neither easy nor simple.

Escalating Pressure

On July 4, 2008, Iran’s Fars News Agency reported that Abdul Aziz al-Hakim, head of the Supreme Islamic Iraqi Council, called for MEK’s expulsion from Iraq, adding that the group “instigates tribal conflicts, interferes in the internal affairs of Iraq, and creates hostility between the parliament and government of Iraq and the Iraqi electorate.” On July 8, Iraqi government spokesman Abbas Bayati told al-Zaman: “The presence of the Mujahedin Organization in Iraq is illegal. We will ask the United States to put Camp Ashraf, the [MEK’s] bastion, under the control of the Iraqi government.”

On July 9, an English language agency of the Iranian regime, Press TV, reported, “Iraqi foreign minister Hoshyar Zebari has declared the imminent expulsion of members of Mujahedin-e Khalq from Iraq.” And on July 10, Iran’s ambassador to Iraq, Hassan Kezemi-Qomi, told Press TVthat “an Iraqi committee has been formed to expel the . . . [MEK] from the country.”

International Law

International humanitarian law is vital to the MEK issue, especially if the group’s adversaries succeed in their efforts. Coalition forces recognize the residents of Ashraf as “protected persons” under the Fourth Geneva Convention, as does the International Committee of the Red Cross (ICRC). In 2004, the ICRC reiterated its position in a letter stating: “Those persons who are protected under the Fourth Geneva Convention remain protected by the Fourth Geneva Convention.”

And in March 2007, the ICRC reminded relevant authorities “of their obligations to act in accordance with the principle of non-refoulement [a term in international law that concerns the protection of refugees dispersed to countries where they would face persecution] when transferring persons to another state or authority.” This statement is an acknowledgment of the nontransferable status of the protection of Ashraf under the present circumstances.

During the same year, the office of the UN High Commissioner for Refugees (UNHCR) reiterated its position that “bodies of international law, particularly international humanitarian law and human rights law, have positive relevance to the Ashraf situation and could confer protections on individuals who fear serious risks if returned to their country of origin.” As such, UNHCR cautioned Iraqi authorities and the coalition “to refrain from any action that could endanger the life or security of these individuals, such as their forcible deportation from Iraq or their forced displacement inside Iraq.”

In February 2006, Maj. Gen. John D. Gardner, the coalition’s deputy commanding general, reiterated the protected-persons status of the people of Ashraf. He acknowledged coalition responsibilities regarding the Geneva Convention relative to the treatment of civilians, stating, “The coalition remains deeply committed to the security and rights of the protected people of Ashraf and the principle of non-refoulement.”

Problematic Options

Assuming a transfer of MEK members were possible, many questions remain regarding their destination. There are many reasons why it would be difficult for the European and U.S. governments, or Iraq’s Kurdish regional bloc, to accept the MEK en masse to their territories.

Moving the group’s members to the United States, for instance, is currently impossible because of MEK’s status as a foreign terrorist organization. This status could change, however, if the designation is lifted in October 2008 when the Department of State performs a regular review process. This appears to be a viable possibility given recent developments in the United Kingdom, where the British government was forced to remove the group from its terrorist list after an independent judicial commission — one ratified by a British appeals court — determined that such a designation was no longer appropriate.

If Ashraf’s security responsibilities were transferred to Iraqi security forces, as demanded by the Iranian regime, it would be a flagrant violation of international laws and conventions. Since it is widely reported that the Iranian regime has infiltrated Iraqi military and security forces, and wields significant influence within the government, such a move would certainly invite a humanitarian catastrophe. No U.S. president would want to leave such a legacy.

Moreover, dispersing the MEK, in addition to being illegal, is likely to decrease the international community’s leverage over the Iranian regime. Because the regime pays more attention to the opposition in Iraq than all other opposition groups combined, a case could be made to rely on the MEK as leverage to encourage Tehran to give up its quest for nuclear weapons capability.

Conclusion

If MEK members remain in Iraq under the protection of U.S. forces, such an arrangement should be explicit in agreements negotiated between Iraq and the United States. Given that military components of the Iraqi government cannot be trusted to provide security for Ashraf and guarantee protected persons status conferred under the Fourth Geneva Convention, transfer to Iraqi control would risk a humanitarian disaster.

The argument for protecting the human rights of MEK members need not be based on a favorable view of the organization. One need not accept or reject the claim by some that the group provides useful intelligence, or that it is an important means to unsettle Tehran.

It would be especially unfortunate if the treatment of the MEK was harsher because of a desire to secure concessions from Tehran on the nuclear impasse. Not only is it inappropriate to abandon the principles of human rights for concessionary purposes, but such an approach would be counterproductive on the nuclear front. This strategy would show Iran that its nuclear program has won it leverage on unconnected issues — thus reducing Iran’s incentive to abandon its program — and it would destroy what is arguably Tehran’s main opposition.

Raymond Tanter, a visiting professor of government at Georgetown University, is an adjunct scholar at The Washington Institute, researching U.S. policy options toward Iran.

http://www.washingtoninstitute.org/templateC05.php?CID=2919

PolicyWatch #1366

By Patrick Clawson
April 25, 2008

Although the Foreign Terrorist Organizationslist has a set of criteria for designating groups, there is little clarity in practice about the process for revocation. Even after organizations have renounced terrorism for many years, their designations persist without a clear explanation, and are based on the assumption that historical violence indicates future potential.

A November 2007 court ruling by the UK’s Proscribed Organizations Appeals Commission (POAC) ordered the British government to remove the People’s Mujahedeen of Iran — known to the U.S. government as Mujahedeen-e Khalq (MEK) — from its terrorist organizations list. This decision, along with a similar decision by the European Court of First Instance (a level below the European Court of Justice), and the mandatory review of the group’s designation by the U.S. State Department in October 2008, provides an opportunity to evaluate how terrorist designation is assessed. According to the 2004 Intelligence Reform and Terrorism Protection Act, if no designation review is conducted during a five-year period, the U.S. secretary of state must determine whether a revocation is appropriate.

The Role of Non-Terrorist Criteria

Any designation review should be based only on terrorism issues, not on the general U.S. government view of the organization in question. If the decision to designate a group is made on foreign policy considerations rather than evidence, then the list will be branded as a political instrument, thus reducing its utility as a means for encouraging other governments to take action against certain terrorist organizations. This is what happened to the list of terrorism-sponsoring states, which simply looks like a set of countries the U.S. government does not like.

In the MEK’s case, its designation should not be based on the group’s political stance or worries about U.S.-Iranian relations, nor should it be a reward for its reports on Iran’s nuclear activities. Over the past three years, the State Department’s Country Reports on Terrorism have cited no alleged MEK terrorist activity since 2001, yet have increased allegations pertaining the group’s non-terrorist activities. The 2007 edition of the Reports, due out by the end of April 2008, is bound to continue this trend.

These allegations — support for the U.S. embassy takeover in Tehran in 1979, allegiance to Islamic Marxism, suppression of Iraqi Kurds and Shiites, participation in the oil for food scandal, and the self-immolation of its supporters during protests — are not related to the legal criteria for terrorist designation and are probably meant to discredit the MEK. These allegations are irrelevant, and some are also based on contestable evidence. This example of irrelevant information reinforces the need for the State Department to create explicit guidelines by which it moves a group from designation to revocation.

Dealing with History

History plays an important part in terrorist designation, especially when considering groups that no longer participate in violent activity. The Palestine Liberation Organization (PLO) is one such example. The PLO clearly used to be a terrorist group, but now enjoys good relations with the United States. Since the PLO complied with the 1993 Declaration of Principles and renounced terrorism, the organization was not listed on the State Department’s first edition of its Foreign Terrorist Organizations list in 1997 or in President Clinton’s 1995 Executive Order 12947 on Middle East terrorism. Since the reevaluation of the PLO designation preceded the creation of the State Department list and the subsequent legislation regulating the process of review, the PLO case provides little insight into how revocation would occur under the current system.

In contrast, the November 2007 POAC ruling is a more recent and relevant example of terrorist designation review. In fact, the 144-page POAC ruling addresses the historical actions of the MEK in detail. Regarding the past seven years, the POAC finds,

Whatever the accurate characterization of the organization’s activities between 1980 and 2001, the position in 2006-2007 is radically different, and has been so since 2001…The [MEK] has conducted no military activity of any kind since about August 2001, whether in Iran or elsewhere in the world…This is attributable to a deliberate decision of the [MEK] made at an extraordinary congress held in Iraq in June 2001, namely, to abandon all military action (or activities) in Iran…There is no evidence that the [MEK] has at any time since 2003 sought to re-create any form of structure that was capable of carrying out or supporting terrorist acts. There is no evidence of any attempt to “prepare” for terrorism. There is no evidence of any encouragement to others to commit acts of terrorism…. The above factors, combined with the 5 years that had since passed since the summer of 2001, demanded the conclusion that continued proscription could not be lawfully justified.

Inherent in the POAC order to revoke MEK’s designation — an order the UK government is appealing — are three principles: the organization’s formal decision to renounce violence, the cessation of terrorist activity, and the five year period of peace. Perhaps the Department of State does not want to use these particular principles when re-evaluating a group’s terrorist designation, but it should adopt a set of guidelines and explain them to the public. It should also explain how it applies those principles in each case; if the MEK is designated, some specific reasons should be given. Preferably, the State Department should provide a road map for what a designated group must do to be removed from the list. For the MEK, what, if anything, must it do to show it has renounced terrorism in practice as well as in theory.

Conclusion

While the State Department routinely reinstated MEK’s designation as a terrorist group on April 8, it must do a more formal and in-depth review by October 2008. That review’s decision should be based on two factors. First, the State Department should only decide if the group is or is not a terrorist group, and not bring in irrelevant information. The criteria should be used in an unbiased, professional manner, relying on evidence rather than prejudice or rumor.

Second, the decision should be based on clear set of rules regarding how the U.S. government revokes this kind of designation. At present, it seems that past terrorist activities — no matter how old or far removed — are susceptible to being interpreted as evidence of future potential, consequently justifying a group’s continued designation. In contrast, the POAC has set forward several useful principles for evaluating an organization’s violent past and peaceful present; the U.S. government should do the same.

Patrick Clawson is deputy director for research at The Washington Institute.

http://www.washingtoninstitute.org/templateC05.php?CID=2808

Friday, 25 January 2008
Source: Le Soir, Belgium daily

By maintaining the People’s Mojahedin Organization of Iran (PMOI / MEK) on the European list of terrorist organizations, the 27 EU countries are “no longer following the rule of law… PMOI’s fundamental rights continue to be violated,” says a report by the Parliamentary Assembly of the Council of Europe adopted on Wednesday by an overwhelming majority.

And what about a case of an Italian citizen residing in Switzerland, found innocent in the courts of Italy and Switzerland, but fails to remove his name from the list of terrorists drawn up by the U.N. Security Council? Neither Bern nor Rome do have the requisite powers to counter the injustice in New York. Worse still, the two capitals may not know why the individual was placed on blacklist.

The report that has been prepared by a Swiss parliamentarian, the chairman of the Committee on Legal Affairs and Human Rights was ratified by the almost unanimous vote on Wednesday after a long debate. Dick Marty is the same person who had investigated the CIA flights.

Mr. Marty explained that the development of such lists had “nothing to do with the law”, was the result of a “political deal”, and that this was a “totally unacceptable system”, “perverse” (the word was used by a London court to describe proscription used against the Iranian opposition movement, PMOI).

“We cannot fight Terrorism with injustice. These blacklists are our Guantanamo, “said Marty. The vote on the report by 101 in favor, 3 against and 4 abstentions, is revealing: the rare opposition came from British, Polish and Romanian parliamentarians.

In political terms, the report confirms the injustice done to the main Iranian opposition movement, PMOI, despite favorable judgments handed down in 2006 and 2007 by the courts in Luxembourg and London. As a reminder, PMOI is a previously armed movement – its latest military operations dates back to June 2001 – which Britain has placed in March 2001 on its national list of banned organizations. London then put pressure on the EU to add this organization to its list.

Since then, the Mojahedin are fighting in two fronts – Luxembourg and London – to get them off the lists. Their argument, recently confirmed in law: Only it is London that alleges them based on single report secret evidence that is empty and fueled by the Tehran regime and broadcasted by London and Brussels.

The game in London is more astonishing, as stated yesterday by the British socialist Rudi Vis, if we finally recognize that PMOI had “not been concerned with terrorism” this would enable the Mojahedin to present itself as the “main opposition” to the mullahs, which would mean “taking a big step in the establishment of democracy in Iran.”

The first court victory by PMOI goes back to December 2006 when the European Court of Justice in Luxembourg, found that the evidence that Europe gathered were insufficient. Brussels has responded by adopting a “new policy”, a trick that obsoletes the judgment. The latest European list of terrorist organizations, released in December, continues to consider PMOI as “terrorist”. But according to the report which has just voted on Wednesday by the Council of Europe, the new EU regulation suffers the same deficiencies as the previous legislation: “In all cases, the ‘new’ procedures are also as failing as that previous” Marty noted in the report.

And already PMOI has taken the new procedures, as a matter of urgency, to the European Court. The victory of PMOI is clear on this front and one can expect that Brussels will be more readily condemned. Since it was the London which has nourished a pseudo-intelligence dossier against the Mojahedin, they have attacked the British list. Since the list is prepared on the basis of secret documents; it should take a special administrative court – Proscribed Organizations Appeal Commission (POAC) – whose magistrates have security clearances required to consult the secret documents.

On 30 November, POAC delivered a judgment which is a slap in the face of London: the British government was forced to propose to parliament the withdrawal of PMOI form the list of banned organizations. Arguments: the Home Office has misinterpreted the law, has ignored important facts, and ultimately took a “perverse” decision against the PMOI. This is good news for the Iranian opposition. But as recalled Dick Marty, it is still 370 people in the world (including one Italian-Swiss) whose assets are frozen when they were merely “suspected” of terrorism.

The report was translated from French by NCRI-FAC