(Photo: Telestar Logistics / flickr)

Members of the Haqqani network have killed hundreds of U.S. citizens and carried out spectacular acts of terrorism, including against the U.S. embassy, NATO headquarters, the Intercontinental Hotel, the Indian embassy, and the British Council -- all in Kabul. Yet the organization is not on the U.S. list of foreign terrorist organizations. This apparent lapse is not for lack of bipartisan support: In a September letter, U.S. Senators Lindsay Graham (R–S.C.) and Kirsten Gillibrand (D–N.Y.) urged Secretary of State Hillary Clinton to add the network to the list, to “curtail logistical, financial and political support for the group’s terrorist activities.” The appropriate answer to their inquiry would seem obvious. The Haqqanis are both foreign and terrorists, after all.

In the event, Clinton punted the request; indeed, the matter is not as simple as Graham and Gillibrand seemed to believe. The Haqqani network differs in form, function, and focus from most groups that make the terrorist list. Moreover, it is not at all clear that designating the organization would achieve the intended U.S. policy results.

U.S. terrorism lists have evolved dramatically in the past 30 years. The first list, that of state sponsors of terrorism, drawn up in 1979, focused on states alone. At the time, that made sense. Regimes in Iran, Libya, and Syria, for example, supported, directed, and supplied terrorist proxies to kill Americans and threaten U.S. interests. The states themselves evaded direct confrontation with the stronger power.  By placing state sponsors on the list, which led to cutting off sensitive exports and prohibiting most foreign aid, the United States pressured fragile regimes to change their behavior. Sometimes it worked: In secret negotiations over disarming weapons of mass destruction, Muammar al-Qaddafi’s Libya sought normalization and removal from the list.

But at the end of the Cold War, state sponsors and their toadies lost ground. Independent groups no longer beholden to governments overshadowed them. Both the means and the ends of terrorism shifted: Globalization increased access to powerful weapons and self-generating sources of support; and Marxism’s decline made way for a range of religious, extreme right-wing, and apocalyptic causes. Well before 2001, the number of casualties per terrorist attack had increased, and groups such as Aum Shinrikyo and al Qaeda had eclipsed traditional state-supported groups such as the Abu Nidal organization.

To adapt, the Clinton administration decided to bypass state-centric measures and aim directly at terrorist groups themselves. The effort eventually resulted in a complex thicket of overlapping sanction regimes. For example, the 1995 Specially Designated Terrorists list was designed to freeze the U.S. assets of those groups that threatened the Middle East peace process.  The 1996 Antiterrorism and Effective Death Penalty Act expanded those sanctions to include restrictions on immigration. This act laid the groundwork for the U.S. Secretary of State's list of Foreign Terrorist Organizations (FTOs), first created in 1997. By the end of the decade, the legal architecture was in place to target groups, although individuals might still evade sanctions if their membership were unknown or their financial activities clandestine.

Following 9/11, the George W. Bush administration passed Executive Order 13224, which expanded the legal basis for targeting individuals -- "specially designated global terrorists" -- and those who support, assist, do business with, or are in any way associated with them. Other innovations have followed, but the upshot is greatly expanded power for the Treasury Department to go after those who engage with terrorists or knowingly aid their efforts, including through charitable contributions.

Still, the FTO list remains the gold standard of U.S. terrorist sanctioning, since it targets entire terrorist organizations, is a proven successful tactic, and has the widest potential legal repercussions. Members may not enter the United States, and those already here may be deported.  Financial institutions must freeze the assets of designated FTOs and inform the Treasury Department of their existence. Beyond financial and immigration restrictions, the FTO list is symbolically important: It draws widespread scrutiny, in the United States and abroad.

According to the terms of the act, the U.S. secretary of state is authorized to designate an FTO if three conditions are met: First, the organization is foreign; second, the organization engages (or plans to engage) in terrorist activity; and third, the terrorist activity threatens U.S. citizens or U.S. national security interests. There are thousands of terrorists, bandits, criminals, and insurgent groups that clearly satisfy the first two conditions, but the third condition is the rub.

The secretary of state has final say in listing new groups. There are countless cases in which competing priorities, special circumstances, or political sensitivities make it preferable to keep a group off the list and instead deal with it through less public means. And, since designations are often legally contested, each one involves a long interagency process of collecting open and classified evidence and building a dossier that will be defensible in courts. Groups that publicly claim "credit" for their deeds (which the Haqqani network does not) are thus easier to designate as FTOs. Even in the wake of a spectacular attack for which a known group claims responsibility, this process typically takes a year.

So the list is by no means agile, and although it has grown from its initial 30 in 1997 to 49 today, many surprising groups are left off. Beyond the Haqqani network, the Provisional Irish Republican Army, for example, never made it to the FTO list. Sanctioning U.S. citizens who supported the PIRA was politically impossible and would have derailed ongoing negotiations in Northern Ireland. (Splinter groups, the Real IRA and Continuity IRA, were added in 2001 and 2005, respectively, following their rejection of the U.S.-mediated 1998 Good Friday agreement.) Other groups that have been condemned by the State Department but never officially designated FTOs include the Ulster Defense Association, the Japanese Red Army, and the Lord's Resistance Army.

The timing of the addition of some other groups was also questionable. The Libyan Islamic Fighting Group was designated in 2004, shortly after Qaddafi accepted civil liability for the Lockerbie bombing and surrendered his chemical and nuclear weapons programs. As the group had pledged to overthrow Qaddafi's government, this was apparently a concession to him. The Pakistan-linked Indian Mujahideen, which helped facilitate the 2008 Mumbai attacks (killing 163, including six Americans), was not added until 2011, when the administration wanted to signal closer ties to India.

The FTO list, moreover, is not even always the best vehicle for managing a terrorist threat. To target particular individuals, for example, it can be more effective to enact financial sanctions under executive order. Indeed, most of the senior leadership of the Haqqani network has already been added to the specially designated global terrorists list. Moreover, groups or entities that have few assets, supporters, or members in the United States (such as the Haqqani network) suffer limited practical consequences from joining the FTO ranks -- besides being placed on notice by the U.S. government.

The Haqqani network also has atypical characteristics that muddy the picture. First, it is not so much a "group" as a clan-based criminal syndicate that makes use of terrorist tactics, including extortion, smuggling, weapons manufacture, kidnapping, and attacks. Formal designation could be legally questionable: While it is admittedly semantics, there are no other "networks" currently on the list.

Haqqani leaders receive funding from wealthy donors in the Gulf as well as from al Qaeda, with whom they closely cooperate. In addition, according to reports in The New York Times, a sizeable proportion of their money is extorted from the U.S.-backed construction firms erecting roads, schools, and other infrastructure in eastern Afghanistan. That makes economic sanctions tricky; the money trail could potentially lead right to the U.S. government.

The Haqqanis are also savvy power brokers, jockeying for position in a post-drawdown Afghanistan. They have controlled the wild mountainous border region between Afghanistan and Pakistan for decades. They have deep local roots and see the United States as an occupying power. Military force will not eliminate them from their own turf, especially as U.S. troops withdraw. So, as repulsive as it is, any future peace settlement will have to come to terms with them. Indeed, one reason the Obama administration has never designated the group an FTO is precisely because it has its eye on this endgame.

The Haqqani network's ties to Pakistan complicate the picture still further. For years, the network has been a gun for hire for the Pakistani government. Cell phone records even revealed calls between Pakistan's intelligence agency and the operatives that attacked the U.S. embassy in Kabul. With its sanctuary in North Waziristan, the Haqqani network is exactly the kind of organization that the United States could have sanctioned through the 1979 state sponsors of terrorism list. But Pakistan has never been on that list, and the United States would not add it now because Pakistan's government would be outraged. If all Washington cared about were sanctions, naming Pakistan a state sponsor would be tempting. But since the United States needs Pakistan's cooperation to formulate an exit strategy and stable future for Afghanistan, it is a political nonstarter.

Designating the Haqqani network could have its benefits. For one, it would bring further U.S. attention to a network that is attacking and killing U.S. citizens. That would be a gratifying symbolic step. Unfortunately, however, the real policy impact of listing the network as an FTO would be too little, too late. Because of the Haqqani network's form and revenue sources, such designation would have minimal practical effect. The organization's robust criminal enterprises would be hard to touch, especially as the United States withdraws from Afghanistan. If the United States is really out for impact, it should remember the old 1979 state sponsors of terrorism list. Indeed, to get serious about terrorist sanctions, the country should reexamine its financial ties to Pakistan.

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