The year 1997 saw Bill Clinton begin his second term as president of the United States, DVDs come into existence as a video format, Titanic premiered on movie screens, and Princess Diana die in a car crash in Paris. It was also the year that America first designated a Foreign Terrorist Organization. That is six years before the Department of Homeland Security (DHS) was formed to help prevent terrorist attacks in the United States, nearly two decades before Twitter was founded, and twenty-two years before Bitcoin was created. And now, twenty-six years later, many experts cite the United States as an exporter of terrorist ideology and tactics. The world is different now.
The Immigration and Nationality Act gives the secretary of state the authority to designate groups as foreign terrorist organizations (FTOs) if they can indeed determine that the group is foreign, that it engages in terrorist activity (or has the capability and intent to do so), and that the acts threaten the security of the United States. These criteria are fairly subjective and to date, sixty-eight groups have been given the FTO label. A significant majority of the groups designated are Islamist extremist organizations and over a quarter of the groups are Al Qaeda, ISIS, and their regional affiliates. Given all that has changed in the last thirty years, and given the breadth of what can seemingly be considered under the language in the Immigration and Nationality Act, perhaps now is the time for both Congress and the Executive Branch to reassess their approach to the challenge of designating terrorist organizations.
It is important to note at the outset that, thankfully, some work is being done on this topic. The Soufan Center in particular has undertaken some important work on comparing designation regimes in different countries and looking at how rising violent far-right movements are being affected by designations and prescriptions—or the lack thereof. Others have looked at discrete issues and made arguments about whether to designate a specific group or not (e.g., PMC Wagner, the Houthis, the Nordic Resistance Movement). And while discrete issues are important to debate, it highlights the changes noted above and underscores that the threats we face today outpace the world of terrorism envisioned in 1997.
But before jumping to anything else, it is important to account for the changes to the terrorism landscape to establish that we actually need a paradigm shift in how we think about designated terrorist groups—that we need something more than just incremental changes or adjustments. First, the internet is an obvious tool that must be acknowledged. Email and web browsers and the internet as a whole existed in 1997, but not in the form they do now. To compare the two would be like comparing a basketball player from 1940 to one playing today. They are playing the same sport but in completely different ways. The internet today exists in nearly everyone’s pocket, allows for money to be transferred instantly, can be used to attract new recruits completely outside of a terrorist’s social ecosystem, and allows for video and audio transmission in ways that could not have been imagined in 1997.
Additionally, terrorist groups are not necessarily the hierarchical, mafia-style organizations they were in the 1990s. Major groups like Al Qaeda or ISIS now have semi-autonomous affiliates or franchises. ISIS also puts out content online in an effort to radicalize people across the globe whom they cannot reach in person to inspire them to carry out attacks as unaffiliated assailants. Terrorist groups are also funding themselves in new ways. While most still use more traditional means like hawalas or criminal enterprises, some are starting to use bitcoin or other cryptocurrencies. Some are also using crowdfunding sites like GoFundMe or GiveSendGo. And weapons are changing too, with terrorists now able to use publicly available plans to build or assemble their own firearms via untraceable 3D printed parts that are easily available. None of these details are new revelations. Yet it seems that policymakers have not yet assembled all of the details into a complete picture to conclude that how we assess who or what is a terrorist organization needs to be updated along with the tools and policies we use to fight individual terrorists.
Let’s start with Congress. The current legislation leaves the entirety of the decision of whether to designate a group as an FTO to the secretary of state, and only in the last line of the legislation does it clarify that he or she can consult with the secretary of the treasury and the attorney general. This leaves the director of national intelligence, the director of the CIA, the director of the FBI, the secretary of homeland security, and director of the National Counterterrorism Center (three of those five positions were created after this legislation was written) out of the loop. And while the State Department surely consults them for intelligence support and other relevant input, legislation should require further consultation and cooperation.
Similarly, the legislation requires the State Department to notify Congressional leadership and certain committees in advance of making a designation, but the legislation has not been updated to include the relatively newly formed committees with jurisdiction over Homeland Security in the House and Senate, leaving a gap in oversight on this issue.
Congress surely recognizes that terrorism has changed in the past twenty-five years—even if there may not be agreement on many of the underlying details (fodder for another article or book or dissertation, to be sure). Congress needs to undertake the necessary work of thinking through what a new paradigm or designation regime ought to look like to account for all the changes.
This reassessment should not bleed over into the discussion of how to best address issues of domestic terrorism (DT). There is a robust debate ongoing in policy circles about whether the United States needs a DT charge or not but at issue here are foreign terrorist organizations. And while there is documented evidence of American violent extremists of various stripes communicating and coordinating with foreign extremists, the focus here is not domestic. Which is to say that the State Department should remain the lead agency for designating groups, but they need to push more openly for support from other parts of the U.S. Government. This includes gathering terrorism specialists from across the government to assess how the threat has changed and how the State Department needs to adjust its thinking about a designation regime. With the proliferation of groups, maybe the State Department needs more staff to make assessments? Maybe its staff needs a different type of expertise that could be augmented by support from other agencies?
Regardless, the State Department should not sit back and let Congress determine on its own what the future ought to be. The State Department has a number of foreign partners it can work with and listen to and determine best practices. There are no easy answers right now, but the nature of terrorism is changing, and the longer we wait to address the problems, the more complicated it will become to develop the tools and counter the terrorists’ changes.
Beyond the State Department, the Department of Homeland Security ought to have a more defined role in the process. The DHS is home to countless officials, both in operational and policy-making roles, tasked with preventing terrorist attacks in the United States, and it has a robust capacity to engage with international partners. DHS ought to push for a more visible, consultative, or cooperative role in the process, with an emphasis on the fact that they are only supporting the potential designation of foreign groups.
So many things are changing in our world right now that it can feel difficult to step back and look at the big, strategic shifts we need to make. It might feel more manageable and easier to tinker around the edges on discreet problems. As the terrorist threat landscape shifts, however, we cannot afford to simply look for tools or policies to stay one step ahead of the terrorists we know about. We need to look at how we label who is a terrorist and adjust accordingly. The technology that terrorists use, how they organize themselves, and how they communicate and recruit have all significantly changed since the United States created its terrorist designation regime. All parts of government need to do their part to upgrade our ability to name terrorists and keep them from establishing safe havens for planning attacks.
Matthew Wein is a former Professional Staff Member at the House Committee on Homeland Security's Subcommittee on Intelligence and Counterterrorism and a former policy adviser to the DHS Assistant Secretary for Policy on counterterrorism, international affairs, and law enforcement cooperation. He is a graduate of the University of Florida.