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:
The petitioners assert the Secretary’s finding Kahane Chai threatened an assassination is based upon a faulty interpretation of the record. In response, the Department notes the Secretary based his conclusion upon four documents. The first is a transcript of a July 1, 2002 radio broadcast by the Jerusalem Voice of Israel Network reporting that death threats had been made against Israeli police officers investigating the “Jewish terrorist squad case,” an apparent reference to the attempted bombing by right-wing extremists of an Arab school for girls. An activist with ties to Kach was arrested in connection with the bombing. The second document is an article in the November 3, 2003 newspaper Ma’ariv reporting that Kach activists had organized demonstrations near the house of “one of the heads” of the Jewish Affairs Division of the Shin Bet (General Security Service) to protest the conditions of the detained members of the “Jewish terrorist squad” accused of the attempted bombing. The protestors had sprayed graffiti spelling out the official’s name (the publication of which was banned), and demanding he “stop abusing Jews.” The official’s wife is quoted as saying, “Our family is facing harassment and threats.” The third document is a May 28, 2003 summary by the Foreign Broadcast Information Service (FBIS) of news reports indicating right-wing activists, including members of Kach, had launched a “personal incitement campaign” against then-Prime Minister Sharon. The fourth document summarizes a July 2003 radio broadcast by the Jerusalem Voice of Israel Network reporting that “Shin Bet Director Dichter said … the threat to the life of Prime Minister Sharon had grown” and “there was a threat from … several dozen Kahanist extremists.” The Secretary held these four documents sufficient evidence to support the redesignation of Kahane Chai and we agree…. In this case the record indicates–and the petitioners do not deny–that Kahane Chai venerates Baruch Goldstein because he massacred 29 Arab worshippers at the Al-Haram Al-Ibrahimi (Sanctuary of Abraham) or Tomb of the Patriarchs in Hebron. Following the attack Kahane Chai issued a statement calling Goldstein a “hero” and in 2002 its alter ego Kach went so far as to advertise a summer camp for children the program of which included “a pilgrimage to [Goldstein's] grave.” Kahane Chai’s glorification of the murderous Goldstein, though hardly dispositive, surely makes more credible the evidence supporting the organization’s involvement in threats of assassination. With this in mind, the Secretary reasonably found Kahane Chai was responsible for the death threats made in 2002 against the police officers investigating the Jewish terrorist squad case. The record does not identify any one group as being responsible for the threats, but the evidence suggests Kach was involved in the underlying crime. A man described in a cable from the American Consulate in Jerusalem to the Secretary of State as “a leader” of Kach–which is to say, Kahane Chai–was “reportedly arrested in connection with the attempted bombing.” Clearly, Kach/Kahane Chai took a strong interest in the affair, as indicated by the demonstrations at the home of the Shin Bet official. Surely the Secretary could reasonably conclude that an organization (1) known to approve of terrorist tactics, including the mass murder of Arab worshippers, (2) possibly linked to the attempted bombing of an Arab school, and (3) demonstrably interested in the latter affair, was responsible for the death threats made against the officers investigating that crime. (Kahane Chai does not argue that death threats against police officers are not threats of assassination and we therefore take the point as conceded.)