The Changing Face of Terrorism and the Designation of Foreign Terrorist Organizations

In this Article, I take up one slice of what should be a broad re-examination of U.S. law and policy. I argue that the new attacks have been undertaken by entities that can and should be designated as foreign terrorist organizations. Doing this would permit prosecutors to target those who support these entities with tools that are not currently available. This Article is both a doctrinal argument that directly addresses the many legal hurdles that make designating groups, such as foreign hackers and troll farms, terrorist organizations a complicated endeavor, and a policy argument about how U.S. law and policy should respond to new modes of terrorism. To make this case, I make two principal claims. First, on the doctrinal front, I argue that my proposed reconsideration of the kinds of entities that may be designated as terrorist organizations is consistent with existing law and with the purposes of 8 U.S.C. § 1189, the statute permitting designation. Making this case requires consideration of what it means for an entity to be an “organization,” what activities constitute terrorism, and how this activity is similar to activity that is currently considered terrorism. Although the context is different, new organizations have similar structures and characteristics as organizations that have been designated already. With respect to what constitutes terrorism, I argue that a harms-based approach is appropriate. The magnitude and type of harm done by the new organizations are similar to harm done by existing organizations.16 Second, on the policy side, I argue that the problem of the entities that are threatening U.S. economic, governmental, and social infrastructure can be more effectively addressed if they are designated as terrorist organizations. Despite the attention paid to counterterrorism law and policy in the past two decades, the area of law is far from fully developed and has struggled to keep up with changes in the world. Designating these entities as foreign terrorist organizations would amount to an updating of law and policy to better combat an evolving threat.