The Houthis and misuse of the terrorist organization list
The Trump administration is reportedly pressing ahead with a plan to designate the Houthi movement in Yemen as a foreign terrorist organization (FTO). This move, likely to be completed next month, worries officials of aid organizations and others concerned with alleviating suffering in the Yemeni civil war, which is sometimes described as the worst current manmade humanitarian disaster.
The worry is well-founded, especially when considering the original purpose of the official U.S. list to which the Houthis would be added. The list was established by the Antiterrorism and Effective Death Penalty Act of 1996, which among other things criminalized material assistance to foreign terrorist organizations. Defining this crime required a precise definition of an FTO — hence the need for such a list.
The basis for the concern among aid organizations is obvious. The very purpose of the U.S. list of FTOs is to be able to prosecute anyone who provides material support to a listed group. “Material support” can include anything of value. There is some talk about the administration issuing licenses or waivers to permit aid organizations to operate in Houthi-held territory, but such arrangements failed to overcome a similar problem in Somalia when the Somali group al-Shabab was designated as a terrorist organization.
The statute specifies three criteria for designating a group as an FTO: that it is foreign organization, that it engages in terrorist activity, and that this activity “threatens the security of United States nationals or the national security of the United States.” I was deputy chief of the Counterterrorist Center at CIA when the 1996 law was enacted, and people working for me were among those who — along with officials from the Departments of Justice, State, and Treasury — prepared the justifications for the original listing of 30 groups. This involved much analytic work assessing the nature of groups’ operations and whose interests those operations affected.
The statute gives the final say over listing or delisting, however, to the secretary of state, and there always has been the potential for political and policy concerns to diverge from the criteria spelled out in the law. The Trump administration is not the first to abuse this discretion, but it has been the most conspicuous to do so. This was especially true of its designation last year of Iran’s Revolutionary Guard Corps, which is a branch of the Iranian regime’s armed forces. The FTO list never was designed to be applied to governments or parts of governments, and to use it this way strays far from the intent of a law that was designed to facilitate prosecution of individuals who write checks to terrorist groups. (An entirely separate statutorily defined list covers state sponsorship of terrorism.)
Designating the Houthis as an FTO would be another abuse of the list. The Houthis are a Yemeni movement that has been fighting a civil war ignited by what the Houthis and their supporters consider to have been short shrift that past Yemeni governments have given to tribal and regional interests in the part of northern Yemen the Houthis call home. The Houthis have shown no interest in doing international terrorism. Their only lethal activity across international boundaries has consisted of sending some rockets and drones into Saudi Arabia as retaliation for the far larger Saudi aerial assault that has been mostly responsible for the humanitarian catastrophe in Yemen.
The Houthis also are not threatening U.S. security. The Trump administration portrays the Houthis as an instrument of Iran — and an FTO designation would be another part of the administration’s effort to pile on as many anti-Iran measures as it can think of — but that portrayal is deceptive. Iran had nothing to do with the outbreak of the current Yemeni civil war. As long as Iran’s rival Saudi Arabia has been determined to stay involved in that war, Tehran has been happy to help the Saudis bleed by providing aid to the Houthis, although the scale of that aid always has paled in comparison with the Saudi involvement and the earlier involvement of the United Arab Emirates. The Houthis are happy to accept the aid but are not proxies of Iran and have made their own decisions, including the one to capture the Yemeni capital of Sanaa in 2014.
The Houthis have constituted the de facto government over much of Yemen, including the capital, for several years. Any effort by aid organizations to provide help to that part of the much-suffering country would immediately raise the issue of material support as defined by U.S. criminal law.
An FTO listing also can complicate efforts to resolve the war and bring peace to Yemen. Even unofficial mediation efforts by well-intentioned third parties would run the risk of invoking the broadly defined material support provision of the law.
The Houthis will not go the way of some wiped-out terrorist group like the Red Army Faction or Sendero Luminoso. As the de facto government of northern and western Yemen, they have as much claim to being part of Yemen’s political future as the presidential claimant on the other side of the front line, a former military officer who is propped up by, and spends most of his time in, Saudi Arabia.
And putting the Houthis on the FTO will do nothing to curb international terrorism.