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Analysis

What Does it Mean to Designate the Muslim Brotherhood a Foreign Terrorist Organization?

President Donald Trump may shortly issue an Executive Order directing the State Department to examine whether it should designate the Muslim Brotherhood as a foreign terrorist organization (FTO).

Cross-posted at Just Secur­ity

Accord­ing to reports, Pres­id­ent Donald Trump may shortly issue an Exec­ut­ive Order direct­ing the State Depart­ment to exam­ine whether it should desig­nate the Muslim Broth­er­hood as a foreign terror­ist organ­iz­a­tion (FTO).

Desig­nat­ing the Muslim Broth­er­hood as an FTO could have seri­ous legal and repu­ta­tional implic­a­tions for any number of prom­in­ent, main­stream civic and polit­ical organ­iz­a­tions. It could also serve as a path­way for desig­nat­ing any of those asso­ci­ated – or even loosely connec­ted – with the Muslim Broth­er­hood as FTOs. Alleging connec­tions to the Muslim Broth­er­hood has long been a smear tactic used against prom­in­ent Amer­ic­ans (such as Clin­ton aide Huma Abedin and conser­vat­ive anti-tax advoc­ate Grover Norquist) and a number of main­stream Muslim civic and polit­ical organ­iz­a­tions.

Signi­fic­ant sections of Muslim civil soci­ety could be affected, includ­ing those who provide reli­gious, char­it­able, or social services in the U.S. as well as the Middle East, South Asia, Africa and around the world.

With all of this in mind, here’s a closer look at what it means for the State Depart­ment to desig­nate the Muslim Broth­er­hood an FTO. 

Labeling an Organ­iz­a­tion an FTO

The U.S. govern­ment desig­nates entit­ies as FTOs under two broad legis­lat­ive author­it­ies, which often work in tandem. This labeling process has few proced­ural protec­tions, but has enorm­ous consequences for the desig­nated FTO, and for any organ­iz­a­tion or indi­vidual that provides any support or services to an FTO.

The Anti-terror­ism and Effect­ive Death Penalty Act of 1996 (AEDPA) gives the Secret­ary of State broad power to desig­nate any entity a “foreign terror­ist organ­iz­a­tion” upon determ­in­ing that:

1) the entity is a foreign organ­iz­a­tion;

2) the entity engages in terror­ist activ­ity, terror­ism, or mater­ial support of terror­ism, or retains the capa­city and intent to engage in terror­ism; and

3) the terror­ist activ­ity or terror­ism threatens the secur­ity of US nation­als or US national secur­ity.

The Secret­ary of State makes such determ­in­a­tions in consulta­tion with the Attor­ney General and Treas­ury Secret­ary, based on an admin­is­trat­ive record that may include clas­si­fied inform­a­tion. The desig­na­tion allows the U.S. govern­ment to block FTO funds that are in the control of U.S. finan­cial insti­tu­tions; to bar members of FTOs from entry into the U.S.; and to prohibit any U.S. finan­cial insti­tu­tion, organ­iz­a­tion, or indi­vidual from provid­ing any mater­ial support, services, or resources to an FTO under penalty of law.

Upon making an FTO desig­na­tion, the stat­ute requires the Secret­ary of State to notify Congress and publish the desig­na­tion in the Federal Register. AEDPA allows FTOs to chal­lenge desig­na­tion in the D.C. Circuit Court of Appeals, but limits judi­cial review to a determ­in­a­tion of whether the desig­na­tion had “substan­tial support” in the admin­is­trat­ive record and was not “arbit­rary, capri­cious, an abuse of discre­tion, or other­wise not in accord­ance with law.”

Groups chal­len­ging desig­na­tion often have little inform­a­tion regard­ing the alleg­a­tions against them, as they are prohib­ited from seeing any clas­si­fied evid­ence support­ing the Secret­ary of State’s determ­in­a­tion (the court may view the clas­si­fied inform­a­tion in camera and ex parte). Though Secret­ar­ies of State have delis­ted a number of FTOs that have peti­tioned for removal, no FTO has success­fully had a desig­na­tion over­turned by the D.C. Circuit. A person charged crim­in­ally for provid­ing mater­ial support to an FTO may not chal­lenge the propri­ety of the desig­na­tion. There are currently 61 desig­nated FTOs.

Block­ing Assets – Treas­ury’s Role

The second method for declar­ing an entity an FTO is through the Inter­na­tional Emer­gency Economic Powers Act (IEEPA), which author­izes the pres­id­ent to declare national emer­gen­cies and estab­lish economic sanc­tions against “any unusual and extraordin­ary threat.” Exec­ut­ive Order 13,224, issued by Pres­id­ent George W. Bush on Septem­ber 23, 2001, invoked IEEPA to enable the Secret­ar­ies of State and Treas­ury broad discre­tion to block the assets of persons who commit, threaten to commit, or support terror­ism, or disrupt the Middle East peace process, by desig­nat­ing them Specially Desig­nated Global Terror­ists (SDGT).

Once desig­nated, Treas­ury’s Office of Foreign Asset Controls (OFAC) is empowered to block and freeze the assets of the SDGT, anyone “owned or controlled by,” or acting “for or on behalf of and SDGT,” and to prohibit the provi­sion of mater­ial support to them by any person. IEEPA author­izes OFAC to block an entity’s assets pending an invest­ig­a­tion to determ­ine if desig­na­tion is appro­pri­ate. IEEPA does not require the Secret­ar­ies of State or Treas­ury to provide the SDGT notice of the desig­na­tion, or any public evid­ence support­ing desig­na­tion, but the desig­na­tion is published to put all finan­cial insti­tu­tions and all persons on notice that they may not provide any finan­cial support or services to the SDGT without first obtain­ing a license from OFAC.

Treas­ury claims that in order to desig­nate an entity an SDGT and block its assets it needs only meet the low threshold of reas­on­able suspi­cion that an entity provided “finan­cial, mater­ial, or tech­no­lo­gical support for, or finan­cial services to,” or is “other­wise asso­ci­ated” with an SDGT. Judi­cial review of SDGT desig­na­tions is limited by the Admin­is­trat­ive Proced­ures Act to a review of the admin­is­trat­ive file, and requires a determ­in­a­tion that the Secret­ary acted in an arbit­rary or capri­cious manner or abused his discre­tion in order to over­turn a desig­na­tion.

Broad Discre­tion Compounds Risk Inno­cent Indi­vidu­als May be Affected

The wide discre­tion these author­it­ies give the Secret­ar­ies of Treas­ury and State, combined with the unduly broad defin­i­tions of proscribed conduct (partic­u­larly mater­ial support, which can include activ­it­ies that are not inten­ded to and do not in fact support terror­ist activ­ity), the lack of notice of the alleg­a­tions and oppor­tun­ity to chal­lenge the evid­ence, and the limited judi­cial review create the risk that inno­cent indi­vidu­als and organ­iz­a­tions may be desig­nated as FTOs or SDGTs. Such improper desig­na­tions may then have a domino effect, as any organ­iz­a­tion or indi­vidual asso­ci­at­ing with or provid­ing finan­cial services or support to a wrongly desig­nated SDGT may in turn be desig­nated.

All FTOs desig­nated by the Secret­ary of State under AEDPA are also on the SDGT list, which now includes more than 900 entit­ies and indi­vidu­als.

The Treas­ury Secret­ary may desig­nate U.S. persons and U.S. organ­iz­a­tions as SDGTs, though federal courts review­ing asset block­ing cases involving U.S. char­it­ies have determ­ined that OFAC freez­ing of assets implic­ates the 4th and 5th Amend­ments, requir­ing a judi­cial warrant based upon prob­able cause and adequate notice and due process. The Treas­ury Depart­ment has not yet published new proced­ures to assure consti­tu­tional rights are protec­ted.

Using these author­it­ies, the Treas­ury Depart­ment shuttered nine U.S. char­it­ies since 2001, seven of which were Muslim. Several were never charged or convicted on terror­ism-related charges, but were effect­ively put out of busi­ness through asset block­ing.

The Muslim Broth­er­hood

Accord­ing to experts on the Middle East, the Muslim Broth­er­hood is a reli­gious organ­iz­a­tion, a polit­ical party, and a social service provider that has oper­ated for decades in numer­ous Middle East­ern, South Asian, and African coun­tries. Though it has engaged in polit­ical viol­ence in the past, it disavowed viol­ence decades ago in favor of polit­ical engage­ment. In 2011, it won elec­tions in Egypt, form­ing a govern­ment that was fully recog­nized by the United States. Two previ­ous admin­is­tra­tions, one Repub­lican and one Demo­cratic, concluded the Muslim Broth­er­hood did not engage in terror­ism and did not warrant desig­na­tion as an FTO.

For more inform­a­tion on the desig­na­tion processes and impacts on civil soci­ety organ­iz­a­tion, see:

http://archives.finan­cialser­vices.house.gov/media/file/hear­ings/111/german_testi­mony_5.26.10.pdf

https://www.lccr.com/wp-content/uploads/The-OFAC-List-2014-FINAL.pdf

http://finan­cialser­vices.house.gov/media/file/hear­ings/111/final_glaser_testi­mony_on_char­it­ies.pdf

http://www.char­ityand­se­cur­ity.org/stud­ies/US_Muslim_Char­it­ies_and_the_War_on_Terror_2011

https://www.lawfareb­log.com/national-emer­gency-under-exec­ut­ive-order-13224-moves-year-16

http://digit­alcom­mons.law.ggu.edu/cgi/view­con­tent.cgi?article=1994&context=ggulrev

http://www.nylslawre­view.com/wp-content/uploads/sites/16/2013/11/48–1.2.Jonakait.pdf

http://bridge.geor­getown.edu/ted-cruzs-muslim-broth­er­hood-terror­ist-bill/

(Photo: Think­Stock)