After Joe Biden wins the 2020 US presidential election, experts, politicians, and lawmakers are focusing on the policy changes a Biden administration could pursue to repair the damage caused by President Donald Trump. One area where a significant strategic shift is needed is the application of terrorism sanctions.
The general use of sanctions by the Trump administration – such as naming foreign terrorist organizations, naming terrorists under executive authority, and sanctioning state sponsors of terrorism – was based on sloganering and politics. Slogans such as “maximum pressure sanctions” against Iran and others have replaced other instruments of statecraft such as diplomacy.
The resulting by-product, a punitive US sanctions regime instead of a preventive one that prevents bad actors from accessing the funds they need for bad things, has angered allies and entrenched enemies. Put simply, the Trump administration’s application of sanctions has become a stick – one that undermines broader US national security interests – rather than a scalpel that could help achieve US political goals and alliances.
First, the Biden government should work closely with lawmakers to amend the sanction-related sections of the Immigration and Citizenship Act (INA) – the underlying law that governs the State Department’s use of Foreign Terrorist Organizations (FTO). The last major change to the INA relevant to FTO designations was made in 2004. Since then, the terrorist threat has evolved significantly due to the ubiquity of the internet and the connections terrorist groups can make through a variety of social media platforms.
This is particularly true of the threat posed by radical right-wing groups advocating the views of the white supremacists. For these groups, alliances are not only based on geographical boundaries, but are developed based on access to encrypted communication platforms, virtual private networks and online social networks.
This communication takes place beyond the contours of traditional borders and makes the definition of “foreign” by the INA and its interpretation by the Ministry of Foreign Affairs superfluous. The revision and update of this provision is critical as currently the first legal criterion relevant to a possible designation of a group as an FTO is where it is physically based. In this day and age, effective laws must take into account the cyber reach and international connections of the group, not just where the group’s leadership may be physically located.
Second, the Biden administration should require deadlines for the FTO review period. When Congress amended the INA in 2004, it gave the State Department more leeway in conducting its statutory FTO reviews. Instead of evaluating FTOs every two years, Congress allowed the State Department to begin a review of the status of an FTO every five years, but Congress did not require that the review be completed by the end of the fifth year. Some deceased groups who gave the State Department this ambiguous deadline have remained on the FTO list for political reasons when they should have been legally removed.
One example is Kahane Chai, a right-wing Jewish group, an organization that has been dormant for more than a decade but was last reviewed in 2010. Politically, Kahane Chai has remained on the list due to concerns about setback from the Arab world if removed. However, there are simple solutions to this political dilemma. For example, the State Department could add other right-wing Jewish radical groups to the FTO list that meet the legal criteria. As of 2010, there have been a few – like Lehava and the Hilltop Youth – who have followed in Kahane Chai’s deadly footsteps, are still active, and may be eligible for naming.
Another case of overdue delisting is the Basque Fatherland and Freedom Group, better known by the acronym ETA – an ethno-nationalist separatist organization that has carried out numerous terrorist attacks in Spain for decades, but should now be removed from the FTO list. According to the University of Maryland’s Global Terrorism Database, ETA has not committed any acts of violence in at least 2011. In addition, the group surrendered its weapons to government agencies in 2017, and in May 2018, the organization announced in its last audio message that it had “completely dismantled all of its structures” and “no longer expresses political positions, promotes or promotes initiatives will interact with other actors “.
When groups change their behavior and come out of the cold, it is imperative that they be delisted. Delistings recognize new realities – namely that terrorism and terrorist groups are ending. Most importantly, delistings show the dynamism that is so important to maintaining a credible listing regime.
Political sensitivities – whether in Spain, the Arab world or anywhere else – are no excuse for keeping defunct groups on the list. After all, the INA does not provide for FTOs to remain on the list for political reasons. For this reason, Congress, in collaboration with the Biden Administration, should amend the INA and require the State Department to begin and complete its FTO reviews before the five years are up. Otherwise the FTO list would automatically expire. This ensures that the FTO list remains factually credible and dynamic.
Third, a Biden government should set up the FTO authorities under Executive Order 13224, which allows the State and Treasury departments to sanction organizations and individuals as terrorists as a tactical tool against right-wing groups. The fact that the Trump administration has not used the power of FTO sanctions against any white supremacist group shows that the Trump team does not take seriously the threat these groups pose, or worse, has decided to would send the wrong message to an important segment of its political base.
By all evidence, the threat to Americans at home from right-wing groups is greater than that of Salafi jihad groups. For this reason, among other things, the first new FTO designation Biden’s Secretary of State was to be a white supremacist group. Unfortunately there are many to choose from. For example, neo-Nazi groups such as the National Socialist Order (formerly known as the Atomwaffen-Division) are present domestically and maintain alliances with networks overseas.
Fourth, Biden should end Trump’s sanctions campaign against Iran. While the Biden team should continue to sanction Iranian proxies like Lebanese Hezbollah, turning its back on the 2015 Iran nuclear deal has brought no benefit to the United States. Secretary of State Mike Pompeo recently appeared to acknowledge this failure when he tweeted that Iran has expanded its uranium supplies under the supervision of the Trump administration.
Rather than bringing Iran back to the negotiating table, the government’s tactics have led Iran and much of the international community to ignore the US’s unilateral efforts to renegotiate the deal. When it comes to Iran, it is imperative that broader US interests drive sanctions policy, not the other way around. That means finding and creating diplomatic and multilateral solutions to curb Iran’s ambitions for weapons of mass destruction. So far, no one has come up with a better plan than the 2015 deal.
Fifth, the Biden government should consider removing certain countries that are on the State Department’s blacklist of state sponsors of terrorism. Iran is rightly on the list, and a Biden government would be wise to ensure that it continues to do so. What the Biden team must avoid are dangerous transaction policies such as those recently implemented in Sudan, where the Trump administration announced its intention to remove Sudan from the list of terrorism sponsors.
The New York Times reported in September that the Trump administration would remove Sudan from the list if it began the process of recognizing Israel. Sudan took this move recently, which resulted in the Trump administration informing Congress of its intention to remove Sudan from the list of state sponsors of terrorism, which could peak as early as mid-December.
While there is little doubt that it is bad form for the lame duck administration to implement such an important foreign policy move on their last breath, it parallels the undisciplined decision-making processes that the Trump team has adopted from day one. The Trump administration’s attempted transaction calls into question the seriousness of its review of the status of the Sudanese terrorism sponsor. The Biden government must avoid this type of transactional approach and base future determinations of terrorism sponsors on the merits of the case – one that takes into account broader legal and foreign policy objectives.
Finally, the Biden government should renew a multilateral approach to sanctions. Trump’s White House abandoned the use of multilateral mechanisms to combat national security threats. Just as the United States left its European allies when it stepped down from the Iran Agreement, the United States has the United Nations Sanctions Committee of 1267 – the world’s only multilateral regime of terrorist sanctions, which includes a global asset freeze, arms embargo and a global ban imposed – sparingly used travel ban for certain individuals and groups – against al-Qaeda and Islamic state financiers.
The Biden government should significantly increase the number of people connected to the Islamic State and al-Qaeda to join the United Nations. At the same time, Biden should urge the UN Security Council to consider creating a new sanctions regime to sanction right-wing extremists, especially white supremacists, who have committed acts of violence. It is appropriate to expand the scope of work of the United Nations to include this area, particularly after the Executive Director of the Counter-Terrorism Committee published a report in April this showed that right-wing terrorist attacks had increased by 320 percent worldwide over the past five years.
From day one, Biden must use sanctions as a tactical tool to achieve strategic goals. How the Biden team imposes sanctions on individuals, organizations, and states must be assessed taking into account diplomatic, humanitarian, intelligence, non-proliferation, and defense objectives, rather than using them to further narrow down policy objectives. In this case, US terrorism sanctions regimes could become an effective preventive instrument serving broader US foreign policy interests.