Defining a Foreign Terrorist Organization

The D.C. Circuit this week rendered an interesting decision defining what constitutes a foreign terrorist organization. The case is Chai v. Department of State, and involved the State Department’s designation of three Israeli right-wing extremist groups–Kahane Chai, Kach, and Kahane.org–as foreign terrorist organizations. If you want to get a sense of the organization, you can check out their English-language website here.

The case raises interesting issues about how much is enough for an entity to be a terrorist organization. The key statutory issue is whether the entity “engages in terrorist activity … or retains the capability and intent to engage in terrorist activity or terrorism.” The statute defines “terrorist activity” to mean “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State),” and which includes, among other things, the “threat, attempt, or conspiracy” to carry out “assassination[s]” and “threat, attempt, or conspiracy” to use any “explosive, firearm, or other weapon or dangerous device… with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” There are additional requirements in the statute that the entity be “foreign” and that the activity “threatens the security of United States nationals or the national security of the United States.”

That is not a particularly easy definition to apply. At least in theory, it appears that a foreign entity that unlawfully threatened to use a firearm against a United States citizen might secure the designation. And there are any number of activities the government might consider in the equation, including a foreign government’s designation of the entity, veneration of past terrorists, direct or indirect endorsement of violent revolution or terrorism, and claiming (falsely or truthfully) responsibility for violent attacks on civilians. But exactly how much is enough? It is difficult to know. On balance, the case of Chai v. State Department seems clearly correct. Numerous governments treat the entities as terrorist organizations, and the United States has given them an FTO designation for years, long before September 11, 2001. Taken as a whole the case appears to provide ample support for the terrorist designation of these entities. But one can imagine other cases where the line is much more difficult to draw.

The case is also interesting because it raises the difficult issue of due process in the terrorist designation procedure. In challenging the designation, a designated group can review only the unclassified material, not the classified material that led to the designation. This makes perfect sense to me as a matter of national security. The government necessarily must limit a designated terrorist group’s access to certain material. But it does raise some due process concerns. The D.C. Circuit concluded that it need not reach the due process question, because “in this case we can uphold the designations based solely upon the unclassified portion of the administration record.” I’m not sure how one would address the due process concerns if the designation was appropriate based only on classified information. (This assumes, of course, that these foreign entities are even entitled to constitutional due process protections, which depends on having a sufficient presence in the United States. See details here. It seems somewhat counterintuitive, but those FTOs that likely pose the greatest threat to our national security, (i.e., those with a domestic presence such as sleeper cells, bank accounts, offices etc.) are deserving of greater protection, while other FTOs without a domestic presence are not).

Here is an excerpt of the opinion: