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Terrorist activity, engaging in terrorist activity, and terrorist organizations

by Kallacha Dubbi

I am prompted to write this 'legal' analysis based on today’s article of Karen DeYoung in the Washington Post, entitled “U.S. to Stop Green Card Denials for Dissidents.”

The article in part reads “The U.S. immigration service said yesterday that it will temporarily stop denying green cards to refugees and other legal immigrants tied to groups that sought to topple foreign dictatorships, placing their cases on hold while it determines more "logical, common-sense" rules for judging them. ……. Most of the applications involve people linked to groups that U.S. immigration and counterterrorism laws have defined as "undesignated terrorist organizations" because they took armed action against a foreign government. The groups include U.S. allies that fought against former Iraqi leader Saddam Hussein and the Taliban government in Afghanistan, as well as Burma's military junta and Sudan's Islamic leaders. …. DHS and the State Department, Scharfen said, will now identify groups that may be eligible for exemption. "We've recognized there are issues that need to be addressed in a logical, common-sense fashion so that we can apply the exemptions that the law provides." He said they will "start making a list" of groups from Iraq, Afghanistan, Sudan, Ethiopia and other countries.”

It appears that there could be members of opposition “groups from …Ethiopia” who might have been denied green card because they took “armed action against a foreign government.”  How could this happen?

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The Immigration and Nationality Act (INA) of the United States was enacted in 1952, and is imparted under Title 8 of the United States Code, INA Act, sec.  212.  [8 U.S.C.  1182]. The Act governs primarily immigration and citizenship in the United States.  As a result of the September 11, 2001 attacks, the INA has undergone a major restructuring.

Sections 212(a) (3)(B) and 237(4)(b) state that an alien who has engaged in terrorist activity is not admissible to and removable from the United States, even if he or she has a valid non-immigrant or immigrant visa or a green card.   This code has three concepts pertinent to immigrants seeking entry visa, political asylum, or green card in the US:

1)     Terrorist Activities

2)     Engaging in terrorist activity

3)     Terrorist organization.

Hundreds of thousands of applications are pending in the US Immigration and Naturalization Service (INS) offices for various visa or residence adjustments.  The INS, an office which is now under the Homeland Security, has recently made some decisions that seem to contradict the INA Act, sections 212(a)(3)(B) and 237(4)(b), the very laws that the agency used to make its controversial decisions.  The rulings, if they stand, have serious legal and psychological ramifications on impacted individuals, who, in most cases have suffered greatly under abusive regimes of their previous homelands.  Understanding the law relative to the above mentioned three concepts is important to understand the legal ground, if any, of these decisions.  So, what really is a terrorist activity, who classifies an individual’s activity as such, what is a terrorist organization, and who classifies a foreign organization as such?

1) Terrorist activity

INA Act, section 212(a) (3) (B) (ii), defines "terrorist activity" to mean any activity which is unlawful under the laws of the place where it is committed (or which, if committed in the United States, would be unlawful under the laws of the United States or any State).  Any alien who:

(I)     has engaged in a terrorist activity (see comments under part 2 below);

(II)    a consular officer, the Attorney General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity (as defined in clause (iv));

(III)   has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity; is considered to have engaged in terrorist activity.

Based on this legal definition, it seems that the US government will honor all self-serving classifications of “terrorist activity” as presented by regimes of foreign countries in their manipulated or concocted versions to squash opposition forces.  This is exactly what is happening in Ethiopia and many other countries.  Based on this logic, the TPLF would be a terrorist organization that toppled Ethiopia’s military junta, and such a terrorist group only needs to usurp political power to rid itself of the terrorist label.  This logic also traps the US effort to eliminate terrorism by suggesting that opposition to tyranny and even state sponsored terror could be a terrorist activity if and when so labeled by any of the brutal regimes around the world.  This obscures the global struggle for democracy and confuses it with war against terrorism, a dangerous mix-up to world peace.  This is why the US Congress made corrections to the clause.

Reflecting amendments to Section 219 of the INA in the USA Patriot Act of 2001 limits this act by declaring that the organization must:

1.           Be a foreign organization.

2.           Engage in terrorist activity, as defined in section 212 (a) (3) (B) of the INA (8 U.S.C. § 1182(a) (3) (B)), or terrorism, as defined in section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. § 2656f (d) (2)) (see next paragraph), or retain the capability and intent to engage in terrorist activity or terrorism.

3.           Threaten the security of U.S. nationals or the national security (national defense, foreign relations, or the economic interests) of the United States.

Important to this amendment is the use of an existing definition of “terrorism”.  Section 140(d) (2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 defines "terrorism" as "premeditated, politically motivated violence perpetrated against noncombatant targets by sub national groups or clandestine agents."  Thus, the targets must be noncombatants for the act to be considered terrorism.  Furthermore, the organization must threaten the security of U.S. nationals or the national security of the United States.  Certainly opposition forces in Ethiopia or elsewhere who fight to topple dictatorial regimes do not threaten US security; the US is a model of democracy for most if not all of them.

The amended part of (B) (i), section (IV) of the Act 212 also defines representative of a terrorist organization (clause (v)):

(aa)   a foreign terrorist organization, as designated by the Secretary of State under section 219, or

(bb)   a political, social or other similar group whose public endorsement of acts of terrorist activity the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities,

Note that under section (B) (iii) (V), designation of representative of a terrorist organization is up to the State Department.  However, definition of “terrorist activity”, based on (B) (ii), that, as stated above, accepts definition of the concept by foreign governments, is vague regarding who should classify an individual alien’s activity as terrorist or as supporting terrorism.  The law seems to tolerate clashing circumstances, that one can be a representative of a terrorist organization but not be involved in terrorist activity if the decision of the State Department and the Homeland security are inconsistent.  Consequently, the two laws, (B) (ii) and B) (i) (IV), are contradictory even more so because … if an individual may escape the label of being “representative” since he may not have been so designated by the State Department, he may still be denied alien or be deportable for “terrorist activity” because the definition and classification of a “terrorist activity” is not clearly and exclusively given to any US agency.  If any agency can interpret “terrorist activity” as it pleases, one gathers an inescapable conclusion, that even a school principal can fire a student if the principal thinks that, for example, the student’s visit to a website is a terrorist activity.  The law also is not conclusive whether or not the interpretation is locally actionable, and if it is, it would forfeit the spirit of the law, leaving chances for abuse wide open.  The only safety to an ensuing mess is amendment to section (vi), defining “Association with terrorist organizations” (see part 2 below).  However, based on its recent decisions, the INS seems not to honor this amendment.

Accepting INA’s definition of "terrorist activity" as presented under (B) (ii), “any activity which is unlawful under the laws of the place where it is committed”, undoubtedly would qualify half of Africa’s regimes as terrorists.  No other political entity in the world is more responsible for violating the laws of the land than some of the African governments.  Applying this definition to the vanguards of freedom fighters, the victims who suffer in state administered torture prisons, not only contradicts the very essence of justice, it fortifies ruthless dictatorships all over the world.  This is un-American because it submits a suffering people to more agony.

2) Engaging in terrorist activity

Section (B)(iv) defines “engage in terrorist activity” as, … “to commit, in an individual capacity or as a member of an organization, an act of terrorist activity or an act which the actor knows, or reasonably should know, affords material support to any individual, organization, or government in conducting a terrorist activity at any time, ….”

Unfortunately, if breaking the laws of the land can be used as a sole basis to define terrorist organizations, several Embassies in Washington DC, including that of Ethiopia, would be the first to fly out of Washington DC.  Victims, Oromos, Somalis, Somalis, Amharas, etc. who are sheltered from the wrath of the TPLF should be spared from the psychological torture of being labeled as terrorists on the basis of data collected from a terrorist regime that has herded 22,000 politicians in prison (according to Dr Negasso Gidada, former Ethiopian President, and Mr. Siye Abraha, former Ethiopian Defense Minster) simply because they happen to object ethnic domination of the country by the minority Tigrean led regime.  In other words, the Ethiopian civil war is over a century old, it is for justice and liberation, it has nothing to do with 9/11, and it can only be stopped by solving the underlying problems, not suffocating and stifling the symptoms.  The Ethiopian government, the very regime that produced some of the largest refugees in the world, many of who are seeking shelter in the US, is the wrong connoisseur to define terror, too besmirched to testify against any organization.  The INS’s use of the Ethiopian regime’s testimony to deny refuge to supporters of Ethiopian opposition forces is wrong.  Subscription to the terror definition of terror regimes is damaging to US diplomacy; it betrays the victims, faults the innocent, classifies friends as enemies, and undermines the struggle against terror.

3) Terrorist organization and designation

Section (vi) defines “Terrorist organization” as

(I)     designated under section 219 [8 U.S.C. § 1189];

(II)    otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of clause (iv); or

(III)  that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).

According to Section 219 [8 U.S.C. § 1189], an organization is designated as terrorist “if the Secretary of State, in consultation with the Attorney General and the Secretary of the Treasury, decides to make the designation.”  This clearly states that the Homeland Security has no legal mandate to designate a foreign organization as terrorist, and the law does not provide a case for casual or tempestuous label for “undesignated terrorist organization.”  The amendment unequivocally provides that an individual alien can not be accused of association with an unidentified “terrorist organization” so labeled by unauthorized agency, whose label is referenced from dictatorial regimes that use the US anti-terror passion to extend their own political life.

Important:  The amendment to this section defines “Association with terrorist organizations” as “any alien who the Secretary of State, after consultation with the Attorney General, or the Attorney General, after consultation with the Secretary of State, determines has been associated with a terrorist organization and intends while in the United States to engage solely, principally, or incidentally in activities that could endanger the welfare, safety, or security of the United States is inadmissible.”  Source: USA Patriot Act, Sec. 411, Definitions relating to terrorism.

This amendment is very important because it demarcates the mandate of who establishes association of the individual or group with a terrorist organization – the Secretary of State and the Attorney General.  In this sense, based on my reading, the Homeland Security office or the INS has neither the mandate nor the authority to deny political asylum or adjustment to aliens based on its own perceived judgment of the individual’s association with “terrorist organizations”, least when the organization is not so labeled by the State Department.

Finally, the organizations that struggle for justice and democracy in their homelands must be respected as always, and the yearning of the individual to stand for justice and equality shall not be suppressed.  It was one great American who wrote “so long as we have enough people in this country willing to fight for their rights, we will be called a democracy.”  So, so long as we have enough people in Africa fighting for their rights, the coming of democracy to this battered continent is unstoppable.  And supporting this yearning is consistent with the ideals of this country. 
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