Now that Joe Biden has won the 2020 U.S. presidential election, pundits, policy wonks, and lawmakers are focusing on the policy shifts that a Biden administration could pursue in order to repair the damage done by President Donald Trump. One area where a significant strategic shift is necessary is in the application of terrorism sanctions.
The Trump administration’s use of sanctions across the board—such as the designations of foreign terrorist organizations, terrorist designations made under executive order authority, and the sanctioning of state sponsors of terrorism—have been based on sloganeering and politics. Slogans such as “maximum-pressure sanctions,” directed against Iran and others, have replaced other tools of statecraft, such as diplomacy.
The resulting byproduct, a punitive U.S. sanctions regime instead of a preventative one that stops bad actors from accessing the finance they need to do bad things, has roiled allies and entrenched enemies. Simply put, the Trump administration’s use of sanctions has become a bludgeon—one that is undermining broader U.S. national security interests—instead of a scalpel that could help achieve U.S. policy objectives and alliances.
First, the Biden administration should work closely with lawmakers to amend the sanctions-related sections of the Immigration and Nationality Act (INA)—the underlying law that guides the State Department’s use of foreign terrorist organization (FTO) designations. The last substantive amendment to the INA relevant to FTO designations was made in 2004. Since then, the terrorism threat has significantly evolved because of the ubiquity of the internet and connections terrorist groups can forge via a wide array of social media platforms.
This is especially true of the threat posed by radical right-wing groups that espouse white supremacist views. For these groups, alliances are not based merely upon geographic borders but are instead developed because of access to encrypted communications platforms, virtual private networks, and online social networks.
These communications occur beyond the contours of traditional borders—rendering the INA’s definition of “foreign” and its interpretation by the State Department obsolete. Revising and updating this provision is vitally important, because currently the first legal criterion relevant to a group’s possible designation as an FTO is where it is physically based. In this day and age, any effective laws must consider the group’s cyber-reach and international connections, not just where the group’s leadership may be physically situated.
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 latitude in conducting its legally required FTO reviews. Instead of evaluating FTOs every two years, Congress allowed the State Department to begin a review of an FTO’s status every five years, but Congress did not require the review to be completed by the end of the fifth year. In giving the State Department this ambiguous deadline, some defunct groups have remained on the FTO list for political reasons when legally they should have been removed.
One example is that of Kahane Chai, a radical 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 because of concerns that there would be blowback from the Arab world if it’s removed. But there are easy solutions to this political dilemma. The State Department, for instance, could add other right-wing Jewish radical groups to the FTO list that meet the legal criteria. Since 2010, there have been a few—such as Lehava and the Hilltop Youth—that followed in Kahane Chai’s deadly footsteps, are still active, and may be eligible for designation.
Another case of an overdue delisting is the Basque Fatherland and Liberty group, better known by the acronym ETA—an ethnonationalist separatist organization that carried out numerous terrorist attacks in Spain for decades but should now be removed from the FTO list. ETA, according to the University of Maryland Global Terrorism Database, hasn’t carried out an act of violence since at least 2011. Moreover, the group in 2017 gave up its weapons to government authorities, and in May 2018 the organization announced in its last audio message that it “completely dismantled all of its structures” and will, “no longer express political positions, promote initiatives, or interact with other actors.”
When groups modify their behavior and come in from the cold, it is imperative that they be delisted. Delistings acknowledge new realities—namely that terrorism and terrorist groups do end. And, very importantly, delistings demonstrate the dynamism that is so key to maintaining a credible listing regime.
Political sensitivities—whether in Spain, the Arab world, or elsewhere—are no excuse for keeping defunct groups on the list. The INA, after all, does not provide for FTOs to remain on the list for political reasons. That’s why Congress, in collaboration with the Biden administration, should amend the INA and require the State Department to start and complete its FTO reviews before the five years elapse. Failure to do that would automatically result in the FTO listing to lapse. Doing that will ensure the FTO list remains factually credible and dynamic.
Third, a Biden administration should use FTO authorities under Executive Order 13224—which provides the State and Treasury departments the ability to sanction organizations and individuals as terrorists as a tactical tool against radical right-wing groups. The fact that the Trump administration hasn’t used the power of FTO sanctions against any white supremacist group demonstrates that the Trump team isn’t taking the menace these groups pose seriously or, even worse, has decided it would send the wrong message to an important segment of his political base.
By all indications, the threat posed to Americans at home by right-wing groups is greater than that of Salafi-jihadi groups. For that reason, among many others, the first new FTO designation Biden’s secretary of state should announce must be a white supremacist group. Sadly, there are many to choose from. For example, neo-Nazi groups such as the National Socialist Order (formerly known as the Atomwaffen Division) have a domestic presence while also maintaining alliances with overseas networks.
Fourth, Biden should scrap Trump’s maximum pressure sanctions campaign targeting Iran. While the Biden team should continue to sanction Iran’s proxies, such as Lebanese Hezbollah, there have been no benefits to the United States by turning its back on the 2015 nuclear deal with Iran. Secretary of State Mike Pompeo recently seemed to acknowledge this failure when he tweeted that Iran has expanded its uranium stockpile on the Trump administration’s watch.
Instead of bringing Iran to the negotiating table again, the administration’s tactics have prompted Iran and much of the international community to ignore U.S. unilateral efforts to renegotiate the deal. When it comes to Iran, it’s imperative that broader U.S. interests drive sanctions policy, not the reverse. That means finding and creating diplomatic and multilateral solutions to rein in Iran’s weapon of mass destruction ambitions. To date, nobody has come up with a better plan than the 2015 deal.
Fifth, the Biden administration should consider removing certain countries designated on the State Department’s state sponsors of terrorism blacklist. Rightfully, Iran is on the list, and a Biden administration would be wise to ensure that remains the case. What the Biden team needs to avoid are dangerous transactional policies like what has recently transpired with Sudan, where the Trump administration has announced its intent to remove Sudan from the terrorism sponsor list.
The New York Times reported in September that the Trump administration would remove Sudan from the list if it began the process to recognize Israel. Sudan took that step recently, resulting in the Trump administration notifying Congress of its intent to remove Sudan from the state sponsors of terrorism list, which could culminate as soon as mid-December.
While there is little doubt that it is bad form for the lame duck administration to implement such a major foreign-policy move during its last gasps, it is in keeping with the undisciplined decision-making processes the Trump team has adopted from day one. The transactional ploys of the Trump administration call into question the seriousness of its review of Sudan’s terrorism sponsor status. The Biden administration must eschew this type of transactional approach and handle future terrorism sponsor determinations based on the merits of the case—one that takes into account broader legal and foreign-policy objectives.
Finally, the Biden administration should renew a multilateral approach to sanctions. Trump’s White House abandoned the use of multilateral mechanisms to counter national security threats. Just as the United States abandoned its European allies when it walked away from the Iran deal, the United States has sparingly used the United Nations’ 1267 Sanctions Committee—the world’s only multilateral terrorist sanctions regime that imposes a worldwide asset freeze, arms embargo, and travel ban upon designated individuals and groups—to target al Qaeda and Islamic State financiers.
The Biden administration should significantly increase the number of Islamic State- and al Qaeda-linked individuals for U.N. listing. At the same time, Biden should urge the U.N. Security Council to consider the creation of a new sanctions regime designed to sanction extreme far-right actors, especially white supremacists, who have carried out acts of violence. Expanding the U.N.’s scope of work to this area is appropriate, particularly after its Counter-Terrorism Committee executive director published a report in April that demonstrated that extreme right-wing terrorism attacks increased by 320 percent worldwide over the past five years.
From day one, Biden must utilize sanctions as a tactical tool to further strategic objectives. How the Biden team applies sanctions against individuals, organizations, and states must be evaluated through the broad lens of diplomatic, humanitarian, intelligence, nonproliferation, and defense objectives rather than using them to further narrow political goals. If that happens, U.S. terrorism sanction regimes may yet become an effective preventative tool that serves broader U.S. foreign-policy interests.
