The Danger in Designations: U.S. Terrorism Designation Lists in Gaza and Beyond

What is “terrorism”? The term has surged in U.S. political discourse following Hamas’s attack on Israel on October 7, 2023, Israel’s subsequent onslaught of Gaza, and escalating violence in the region involving Iran and similarly aligned groups like Hezbollah and the Houthis. U.S. politicians and thought leaders have characterized U.S. support for Israel’s bombardment as a fight against “terror,” described the violence conducted by Palestinians and their backers as “terrorism,” and accused pro-Palestinian U.S. protestors of “supporting terrorism.” More than mere political rhetoric, “terrorism” is a term that carries big legal consequences. This is in large part because the U.S. government holds enormous power to officially designate individuals, groups, and governments as terrorists or supporters thereof and enact severe penalties on them as a result.

This Article examines the primary mechanisms by which the executive branch compiles lists of terrorists and discusses the legal consequences of these designations, including economic sanctions, immigration prohibitions, criminal consequences, and private litigation. Further, this Article explores the subjective factors undergirding the very concept of “terrorism” in American law and policy, including U.S. geopolitical aspirations and race. Finally, this Article utilizes the ongoing crisis in Gaza as a case study to demonstrate how the practical impacts of terrorist designation lists suppress speech and dissent, prolong suffering, and prevent peaceful conflict resolution. Consequently, this Article proposes abandoning list-based counterterrorism altogether.