Beyond the State Sponsors List: Finding the Right Tools to Counter Russia

Editor’s Note: We are happy to introduce “Below the Threshold,” a new column by Stephen Tankel (@stephentankel).

State sponsor of terrorism: It’s a toxic label that signals to the international community that the state in question should be treated as a pariah. Designation also carries with it a wide range of sanctions, including a ban on arms-related exports and sales, prohibitions on economic assistance, and the imposition of other financial restrictions. Currently, the secretary of state has determined that four countries have repeatedly provided support for acts of international terrorism: Iran, Syria, North Korea, and Sudan. Writing in the New York Times, Sen. Cory Gardner recently announced he is planning to introduce legislation that would require the State Department to determine whether the Russian Federation meets the criteria to be added to the list.

Whatever becomes of this legislation, the legal rationale for designating Russia is questionable, at best. But the policy impetus is clear. Gardner states he is pushing for designation in order to “take every diplomatic step necessary to protect our allies and our democracy, and to deter a revanchist Russia that is intent on rewriting history and threatening our way of life.” In other words, the senator has identified an instrument of statecraft that could be used to punish Russia for all manner of sins, and he is looking to use it even if not for its intended purpose. This is a bad idea.

To be clear: Russia behaves like an enemy of the United States, which should use all appropriate instruments of national power to impose sufficient costs on the Kremlin. But designating it a state sponsor of terrorism is not one of them. The U.S. government is already inconsistent in its approach toward state sponsorship, which reduces the relevance of designation when it actually comes to combating terrorism. Listing Russia risks rendering designation even more irrelevant, while simultaneously failing to change the Russian behavior most alarming to the United States.

An Already Inconsistent Instrument

Gardner tries to buttress his case for designation by citing some of Russia’s recent outrages: invading Georgia and Ukraine, supporting the Syrian regime, engaging in active information warfare against the United States and other Western democracies, providing limited material support to the Taliban, and conducing a campaign of international assassinations against “enemies of the state.” But the last two items on that list are the only ones that might make Russia eligible for designation, and neither of them is a slam-dunk. Russian support to the Taliban is relatively recent and pales in comparison what Pakistan provides. As for its assassination campaign, experts generally view terrorism as the province of non-state actors. States may sponsor terrorist groups, but they are not themselves terrorists. The U.S. government includes international attacks against civilian targets by clandestine agents of a state in its definition of terrorism, thereby widening the aperture to include attacks like the bombing of Pan Am 103 believed to have been conducted by Libyan intelligence. This provides a potential legal rationale for designating Russia, but political assassination, although heinous, is not what Congress had in mind when it authorized the State Department to designate governments that provided support for international terrorism.

If Gardner has his way, it would not be the first time the United States used designation as a mechanism for pursuing objectives that have little to do with counterterrorism. North Korea was originally added to the list after its agents planted a bomb on a South Korean passenger plane in 1987, killing all 115 people aboard. Two decades later, George W. Bush removed it as part of an effort to salvage a deal wherein North Korea would agree to stop its nuclear program. The gambit clearly failed. President Donald Trump recently re-added North Korea to the list. Pyongyang’s assassination of Kim Jong-un’s half-brother on foreign soil provided a superficial rationale. However, as Trump proclaimed at the time, re-listing North Korea was really part of a “maximum pressure campaign to isolate the murderous regime” and get it to end its nuclear weapons and missile programs — a goal clearly separate from counterterrorism.

Sudan, which previously provided safe haven to al-Qaeda and numerous other terrorist organizations, was added in 1993. In response to international pressure, the Sudanese government evicted these organizations over the next several years. Today, it no longer provides sanctuary or other support to terrorist groups. Indeed, the State Department officially recognizes that counterterrorism is a national security priority for Sudan, which has evinced willingness to cooperate with the United States in this area. And yet, Sudan is still on the State Sponsors of Terrorism List. Why? Because, as other counterterrorism experts have observed, its government is guilty of gross human rights violations. Again, the behavior the United States is trying to change is abhorrent, but violating human rights and sponsoring terrorism or supporting terrorist groups are not the same thing.

The pendulum swings the other way, too. Pakistan is a clear-cut state sponsor of terrorism, and has been for decades. It is the strongest backer by far of the Taliban and Haqqani Network in Afghanistan and still supports Lashkar-e-Taiba, which executed the 2008 Mumbai attacks and countless more international terrorist attacks over the years. As I’ve written on in detail elsewhere, Pakistan has not been designated for several reasons. First, it’s questionable whether doing so would actually chance the Pakistani security establishment’s calculus when it comes to supporting terrorist organizations. Second, because of the punitive measures associated with designation, the U.S. government is concerned Pakistan might retaliate by closing access to supply lines and airspace necessary to support the war effort in Afghanistan. Third, U.S. officials worry — rightly or wrongly — about losing influence with Pakistani decision-makers given the country’s rapid development of nuclear weapons and the potential for conflict with India.

Thus, the current list includes two states that fit the state sponsorship definition (Iran and Syria), and two that do not really clear the bar (North Korea and Sudan) but are engaging in other bad behavior. It simultaneously excludes another state (Pakistan) that actively supports terrorism, but which consecutive administrations have deemed a critical, if highly problematic, counterterrorism partner since 9/11. How did we get here?

A Tool From Another Time

As I detail in a forthcoming book — With Us and Against Us: How America’s Partners Help and Hinder the War on Terror — the state sponsor designation derives from a time when the terrorist threat looked different than it does today. Most of the major terrorist groups active during the Cold War, along with many smaller ones, benefited from state support from Moscow, Soviet-bloc countries, and Soviet client states. The efforts of Arab countries to exert more control over major Palestinian groups also contributed to the growing number of state-sponsored organizations. In 1976, Congress passed a law cutting off assistance to “any government which aids or abets, by providing sanctuary from prosecution, to any group or individual which has committed an act of international terrorism.” In 1979, the Export Administration Act authorized the State Department to designate governments that “provided support for actions of international terrorism.” This export-control list, which was initially intended to prevent the United States from exporting arms or other military equipment to states that supported terrorism, evolved into the list of state sponsors of terrorism. A decade later, Congress passed the Antiterrorism and Arms Export Amendments Act, requiring sanctions on states designated as sponsors of terrorism. Then the Cold War ended.

U.S. officials began the 1990s worried mainly about the Iranian-supported Shiite group Hezbollah. The 1993 World Trade Center bombing augured the growing jihadist threat, one where state sponsorship played less of a role. U.S. policymakers crafted a range of measures targeting individuals and non-state organizations, including the Antiterrorism and Effective Death Penalty Act of 1996. It authorized the secretary of state to designate groups involved in international terrorism as Foreign Terrorist Organizations and block any of their assets that were in the possession of or under the control of U.S. financial institutions.

While Washington put in place new measures to deal with super-empowered non-state actors, it also began working more closely with foreign governments on counterterrorism. As I argue in With Us and Against Us, some of the most consequential U.S. counterterrorism partners today also enable terrorism in one way or another. Pakistan is the starkest example. Other allies and partners, including Turkey, Saudi Arabia, and Qatar have also pursued policies that foster a supportive environment for terrorism such as fundraising, recruitment, or propagandizing, but stop short of directly assisting specific terrorist groups.

Listing these states as sponsors of terrorism would be counterproductive given the punitive nature of designation, which makes consistent engagement with the designated country difficult. This is fine when dealing with Iran, Syria, or North Korea — all U.S. enemies with whom no security cooperation occurs. It’s far more problematic when dealing with key allies and partners.

Because it’s a blunt instrument not particularly well-suited to dealing with the nuanced, ambiguous relationships between terrorism and some of America’s most consequential partners, designation increasingly risks becoming irrelevant. Using designation to pursue non-terrorism related objectives with countries like Russia and North Korea compounds this problem. Throwing around the state sponsor label needlessly politicizes how the United States defines terrorism, which is already a loaded term, and makes combatting it more difficult. This reduces U.S. credibility when trying to isolate genuine state sponsors of terrorism such as Iran, and makes it more difficult to coerce problematic counterterrorism partners to change their behavior.

Labeling Russia a state sponsor is also unlikely to do much to deter it. For starters, as Gardner admits, many of the penalties associated with designation are already required under the Countering America’s Adversaries Through Sanctions Act. Furthermore, this move risks clouding the real security challenges Russia presents, and make it more difficult to formulate effective policies for countering them. It would also enable Putin to claim, with some accuracy, that the United States is playing politics with the State Sponsors of Terrorism List. There’s no need to risk ceding an inch of the moral high ground to Russia so that Congress can look and feel like it is “doing something.” If Congress is looking to take action on Russia or to get tougher on states that support or enable terrorism, its time would be better spent elsewhere.

A Better Use of Resources

First, Congress should consider updating the methods by which countries can be removed from the list. Currently, there are two paths enabling rescission, both of which put the onus on the executive branch to submit a report to Congress making the case for removing a country. Congress should pass legislation mandating that the president issue an annual report reaffirming designation or justifying rescission for each country listed. This would provide an impetus for removing countries that do not belong as well as an opportunity to reinforce the case for those that do. Ensuring that the designated countries do, in fact, continue to support terrorism would also enable Congress to explore adding additional sanctions beyond the ones already mandated by designation. The list might be shorter, but the punitive measures could be even greater.

Second, to enable more flexibility with states that support or enable terrorism, but are also consequential U.S. partners, Congress should create a counterterrorism grading system. It could model this system on the one used by the Financial Action Task Force (FATF), an inter-governmental body devoted to combating money laundering and terrorist financing. FATF identifies jurisdictions with weak measures to combat money laundering and terrorist financing and publicly identifies “Non-Cooperative Countries or Territories.” It reviewed over 80 countries and placed 61 of them on this “blacklist” between 2000 and 2017. By 2017, 51 had made the called-for reforms — an impressive rate of success. Part of FATF’s success comes from its multilateral character. Blacklisted countries also risk reductions in foreign investment, which can be a powerful motivator for reform. Even though it would be unilateral, a U.S. “counterterrorism blacklist” would still have shaming and signaling aspects. Congress could tie the blacklist to limited penalties while still allowing engagement. This would provide space for a partner to reform and thus remove itself from the blacklist. It also sends a message that the United States is building a case to end the partnership or take additional punitive actions if reforms are not forthcoming.

Third, there are plenty of other steps Congress should take to deter Russia, including holding the Trump administration accountable when it comes to responding to Russian aggression, updating security assistance authorities and appropriations to support relevant allies and partners, and ensuring the ongoing investigations into Russian meddling are allowed to continue, to name just a few. And if Congress believes the current instruments of statecraft are insufficient for today’s challenges, then instead of reaching for any available tool in the toolbox, it should create new ones. Other U.S. counterterrorism policies provide a better model for dealing with Russia’s use of information warfare, for example. As Joshua Geltzer and Charles Kupchan have recommended, Washington could draw on its efforts to track and block terrorist financing to develop a framework for thwarting information warfare. Specifically, Geltzer and Kupchan suggest Congress pass legislation that criminalizes the act of accepting assistance from a foreign government that is aimed at influencing elections. They also recommend using the “know your customer” requirement put in place for banks to help counter terrorist financing as a model for a “know your source” mandate for social media corporations to reduce the prevalence of fake news.

Security competition with Russia is likely to increase in the coming years, while threats from terrorism show no signs of receding. Tackling both of these challenges, not to mention others from North Korea, China, Iran, and violent non-state actors, will require the U.S. government to think carefully about how it uses the existing instruments of statecraft and creatively about fashioning new ones. A first step is resisting the urge to reach for the wrong policy tool just because it’s available.

Stephen Tankel is an assistant professor at American University, an adjunct senior fellow at the Center for a New America Security, and a senior editor at War on the Rocks. His new book — With Us and Against Us: How America’s Partners Help and Hinder the War on Terror — will be published in May 2018.

Image: Andre Mercier/Flickr