In Cambodia, American diplomats sat down with criminals in the name of peace and security

Hun Xen shaking hands with Obama in Singapore on November 15, 2009 during the the 1st ASEAN-US leaders Meeting (Photo: Kao Kim Hourn)

U.S. Terrorist List System Constrains Peacebuilding Efforts

19 Jul 2010
Joshua Gross
World Politics Review

The Supreme Court's recent ruling on Holder v. Humanitarian Law Project tightens the straightjacket that our current terrorist list system has placed on American diplomats and social scientists. In a 6-3 decision, the court ruled that the First Amendment does not protect groups or individuals who provide "expert advice or assistance" or "training" for pacific means to proscribed terrorist groups. For non-governmental peacebuilding groups that conduct workshops and promote dialogue as critical elements of their work, this decision is catastrophic. Now, even individuals who, through direct communication, urge proscribed terrorist groups to disarm and participate in negotiations are vulnerable to prosecution in a U.S. court.

Chief Justice John Roberts argued that the 2001 Patriot Act's broad definition of material support to terrorism was necessary to block "aid that makes the attacks more likely to occur." However, this betrays a misunderstanding of what practitioners of peacebuilding actually do. Unlike humanitarian support, which could potentially free up resources for military spending by providing free food and social services, the services provided by peacebuilding groups cannot be diverted.

Part of the problem is the lists themselves. Beginning with the U.S. Anti-Terrorism and Effective Death Penalty Act of 1996, the U.S. created a series of overlapping terrorist lists managed by different government agencies, including the Foreign Terrorist Organization (FTO) list, the Specially Designated Nationals and Blocked Persons (.pdf) (SDN) list and the Terrorist Exclusion List (TEL). Such lists are an important element of U.S. counterterrorism policy. But they are a blunt instrument -- too calcified, too bureaucratic, and too resistant to modification when political realities shift. All of the groups on the terrorist lists are dangerous and violent, but some less so than others. The lists force the U.S. to adopt a uniform policy that disregards the variety among terrorist entities in size, location, ideology and capabilities -- and the differences in how they might respond to incentives and disincentives.

An example of how the practical consequences of the terrorist list system can hinder a promising peace process can be found in Nepal. In 2003, the country's Maoist insurgency was added to the TEL and SDN lists. The U.S. ambassador announced that the fight against the Maoists was now part of the Global War on Terror, speciously linking the group to al-Qaida.

While the proscription of the Maoists provided no tangible benefit for U.S. national security, it handcuffed efforts by Americans, both inside and outside government, to support the fragile peace process. A peace accord was signed in 2006, ending a brutal decade-long civil war. Shortly thereafter, the Maoists won a plurality of seats in Nepal's first post-conflict democratic election. However, partially due to the legal tangle created by the terrorist lists, the U.S. Embassy was unable to capitalize on the Maoist decision to commit to the ceasefire and peace process. In proscribing the Maoists, the U.S. lost a crucial early opportunity to identify and strengthen the pragmatists within the Maoist leadership and isolate the elements that opposed negotiations.

On the ground, the lists have strained relations between U.S. embassies and non-governmental conflict resolution organizations operating in fragile states. NGO officials and social scientists engaged in field research have complained that State Department and Justice Department lawyers provide contradictory or vague guidance. Peacebuilding experts argue that their work with armed groups is dependent upon trust, which is hard-won and easily lost. In Nepal, the proscription of the Maoists complicated or categorically severed these personal relations. As a result, considerable institutional knowledge and communication channels were lost.

"U.S. law cuts Americans out of the dialogue process," said one scholar who preferred to remain anonymous. "We are not telling them how to build a bomb. You can't even give them advice on how to change their direction and move toward nonviolence."

The process of designating terrorist groups should be better calibrated to fight terror, while anticipating the potential for engaging armed groups inclined toward moderation and political participation. Instead, the current system creates perverse political incentives for listing a group, to burnish terror-fighting credentials, while de-listing a group can lead to accusations of being "soft on terror."

Congress could begin the needed reforms, though, by amending the U.S. Antiterrorism and Effective Death Penalty Act of 1996. Armed groups that meet certain positive criteria, such as commitments to ceasefires or active involvement in peace accords, should be offered some variation of probationary status as an incentive for continued constructive behavior. This sliding scale would have been useful in Nepal, where the U.S. Embassy could have rewarded the Maoists for their initial steps toward moderation without entirely removing the symbolic stigma of U.S. sanctions. U.S. planners in Afghanistan might find the complications encountered in Nepal to be instructive when contemplating political outreach to the Taliban.

The Office of Foreign Assets Control (OFAC) at the Department of Treasury has the authority to issue licenses that permit diplomats, NGO employees, and social scientists to engage proscribed groups in activities that otherwise would be prohibited. OFAC should proactively open a direct channel to these groups while concurrently facilitating and expediting specific requests. For their part, peacebuilding organizations should revisit their monitoring standards and demonstrate a higher level of due diligence and transparency in reporting their interactions with armed groups to OFAC. Even those with good intentions can be misled by empty promises of future moderation by terrorist groups.

Holder v. Humanitarian Law Project was yet another missed opportunity to fix a misguided and heavy-handed U.S. counterterrorism policy. Not every counterterrorism campaign ends with the eradication of the terrorist group. The best-case scenario for many insurgency-afflicted governments is to strike a deal. In Sierra Leone, Cambodia, and Mozambique, American diplomats sat down with criminals in the name of peace and security. Private-sector groups and individuals should not be prosecuted for similarly promoting peaceful solutions to protracted conflict. The U.S. experience in Nepal demonstrates how cutting off the possibility for engagement can become a self-fulfilling prophecy, neutralizing incentives for an armed group to undergo the difficult transformation into a legitimate and nonviolent political party.

Joshua Gross is a recent graduate of the Fletcher School of Law and Diplomacy and the former director of Media Relations at the Embassy of Afghanistan in Washington, D.C. This essay was adapted from a forthcoming study of U.S. conflict management in Nepal. The author can be contacted at joshuarobert144@yahoo.com.