Blacklisting as Foreign Policy: The Politics and Law of Listing Terror States

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INTRODUCTION

Among the various weapons in America's antiterrorist arsenal, one of the most intriguing and enduring is the State Department's list of state sponsors of terrorism. Conceived in the heady days of the 1970s, (1) the list is a mostly static group of seven countries designated each year by the secretary of state. (2) Although it has remained virtually unchanged from 1993, (3) the list commands more attention each year. (4) A who's who of rogue states, the release of the list along with the State Department's annual terrorism report engenders the ire of the condemned and the relief of the overlooked. (5) Perhaps for its promise of clarity and certainty, the list exudes a rhetorical power invoked by groups as diverse as observers of international politics (6) and producers of popular television shows. (7) With this increased attention have come new questions about the legitimacy of such a blacklist, (8) however, and the designation itself has been called more a question than an answer. (9)

Nevertheless, Congress continues to imbue the list with increasingly substantive legal implications. (10) These implications typically function as automatic triggers, kicking in whenever the secretary of state places a country on the list. (11) Such legal linkages might be appropriate were the secretary of state free from political pressures when determining which countries sponsor terror. In fact, however, the decision to place a country on the list is profoundly affected by necessary political compromises. (12) The proliferation of automatic consequences that it triggers raises the risk that the list will leave a trail of political consequences in fields of law traditionally guarded from such considerations.

This has happened in at least one area. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). (13) The act abrogated the sovereign immunity of countries on the terrorism list, and only of countries on the terrorism list, for certain crimes. (14) As a result, several countries have become embroiled in suits in U.S. courts, while others guilty of similar crimes remain immune. (15) Ironically, the more consequences that flow from inclusion on the list, the more politically calculating the secretary of state must be in crafting it. This further undermines the objectivity and legitimacy of the list. These constraints on the secretary's discretion not only lead to inequitable consequences in the courtroom, they ultimately breed ossification in the list. This threatens its utility and relevance in the political arena as well.

Reform is overdue. This Note examines the terrorism list in light of these interrelated problems. Part I explores the background and birth of the terrorism list as an extension of wartime economic sanctions policy and reviews Congress's significant enhancements of the list's consequences beyond the economic and diplomatic realm, principally through the AEDPA and post-9/11 legislation. Part II examines the fallout for the rule of law that results from the linking of an executive-determined and often politicized blacklist with the legal doctrine of sovereign immunity through the AEDPA. Finally, Part III proposes measures that could lessen the temptation to list states for political reasons, diffusing some of the list's externalities. By creating a more transparent, objective, and accurate list of countries sponsoring terrorism, the judicial inequities of the AEDPA and subsequent statutes can be mitigated. Moreover, a more accurate list will abate international cynicism over the list's political motives, ultimately strengthening the list as the legal and diplomatic tool it was designed to be.

I. BIRTH AND EXPANSION OF THE TERRORISM LIST

A. Economic Sanctions and the Origin of the Terrorism List

The list of state sponsors of terrorism is primarily a product of the law of economic sanctions. During World War I, the U. …