110305 PEED.DOC 12/19/2005 3:06 PM BLACKLISTING AS FOREIGN POLICY: THE POLITICS AND LAW OF LISTING TERROR STATES MATTHEW J. PEED 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 Copyright © 2005 by Matthew Peed. 1. See infra Part I.A. (describing the origin of the list). 2. Until the U.S. invasion of Iraq in 2003, the list included Iran, Iraq, North Korea, Libya, Syria, Sudan, and Cuba. OFFICE OF THE COORDINATOR FOR COUNTERTERRORISM, U.S. DEP’T OF STATE, PATTERNS OF GLOBAL TERRORISM 2003, at 85–92 (2004), available at http:// www.state.gov/documents/organization/31944.pdf. 3. Sudan was added to the list in 1993. OFFICE OF THE COORDINATOR FOR COUNTERTERRORISM, U.S. DEP’T OF STATE, PATTERNS OF GLOBAL TERRORISM 1996 (1997), available at http://www.state.gov/www/global/terrorism/1996Report/overview.html. The list remained unchanged until the president removed Iraq from the list following its invasion in 2003. See Presidential Determination No. 2004-52 of September 24, 2004, 69 Fed. Reg. 58,793 (Sept. 30, 2004) (directing the secretary of state to remove Iraq from the list of state sponsors of terrorism). 4. An August 28, 2005 Lexis database search for references to the terrorism list in news articles showed ninety-nine references from 1985 to 1990, 2,228 references for the 1990s, and 7,672 references for 2000 through 2004. 5. For a survey of world reaction to the State Department’s 1999 report, see Fed’n of Am. Scientists, Patterns of Global Terrorism Report: “Terrorism’s Changing Map,” at http:// www.fas.org/irp/news/2000/05/wwwh0m23.htm (May 2000) (on file with the Duke Law Journal). The survey concludes: [S]ome found the document “fairly comprehensive” while others disagreed with its “methodology,” complaining that its conclusions “avoided differentiating between ‘terrorism’ and ‘struggle’” and put “blackmailing terrorist gangs” on equal footing 110305 PEED.DOC 12/19/2005 3:06 PM 1322 DUKE LAW JOURNAL [Vol. 54:1321 promise of clarity and certainty, the list exudes a rhetorical power invoked by groups as diverse as observers of international politics6 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 with “movements motivated by religious and nationalist incentives” . Detractors contended that U.S. “strategic interests,” particularly in the building of an oil pipeline in Central Asia, played a major role in the report’s “categorization” of countries. Among the more positive assessments was a testimonial from a Lima daily that reported that Peru is finding ways to combat terrorism thanks to the report, which it said “is an example of how a well executed domestic policy can generate a positive foreign reaction.” Id. 6. E.g., Marilyn Henry, Campaign Under Way to Give Israel Seat on UN Security Council, JERUSALEM POST, Sept. 24, 1997, at 5. Henry describes an advertisement sponsored by the American Jewish Committee and published in several international newspapers, which pled, “Why is it that [these seven nations], all cited by the U.S. State Department as sponsors of terrorism, are eligible to serve rotating terms on the Security Council, yet Israel, a democratic nation and member of the UN since 1950, is not?” Id. 7. See, e.g., Press Release, American-Arab Anti-Discrimination Committee, NBC Reiterates, Rationalizes Slander Against Syria (Oct. 20, 1999), at http://www.adc.org/action/ 1999/20oct99.htm (on file with the Duke Law Journal) (quoting a letter from Rosalyn Weinman, Executive Vice-President of Broadcast Standards and Practices at NBC Television, to the American-Arab Anti-Discrimination Committee, responding to criticism over the fictional depiction of Syria as having, without provocation, shot down an unarmed American Air Force jet by noting that “quality dramas like ‘The West Wing,’ rely on verisimilitude in their storytelling. And given that Syria is on the official U.S. State Department list of countries that support terrorism . , the reference was fair for the program’s use”). 8. See, e.g., PAUL R. PILLAR, TERRORISM AND U.S. FOREIGN POLICY 170–71 (2001). 9. See Keith Sealing, “State Sponsors of Terrorism” Is a Question, Not an Answer: The Terrorism Amendment to the FSIA Makes Less Sense Now Than It Did Before 9/11, 38 TEX. INT’L L.J. 119, 121 (2003) (analyzing the many questions surrounding the issue of “state sponsored terrorism”). 10. See infra Part I. 11. See infra Part I.B. 12. See infra Part III. 110305 PEED.DOC 12/19/2005 3:06 PM 2005] BLACKLISTING AS FOREIGN POLICY 1323 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. 13. Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 18, 28 & 42 U.S.C.). 14. 28 U.S.C. § 1605(a)(7) (2000). 15. Compare Saudi Arabia v. Nelson, 507 U.S. 349, 351 (1993) (finding that Saudi Arabia is immune from suits alleging torture), with Simpson v. Socialist People’s Libyan Arab Jamahiriya, 180 F. Supp. 2d 78, 84–85 (D.D.C. 2001) (finding that Libya is not immune from a suit alleging false imprisonment and intentional infliction of emotional distress), and Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 25 (D.D.C. 1998) (finding that Iran is not immune from punitive damages for acts of terrorism). 110305 PEED.DOC 12/19/2005 3:06 PM 1324 DUKE LAW JOURNAL [Vol. 54:1321 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.S. first began to use economics sanctions systematically as a tool of foreign policy through the Trading with the Enemy Act of 1917 (TEA).16 The Act allowed the president to declare a national emergency with respect to a country and comprehensively regulate financial transactions with that country. Eventually these powers were extended through the International Emergency Economic Powers Act of 1977 (IEEPA),17 which allows the president to promulgate sanctions toward individual countries after first declaring a state of national emergency with respect to that country.18 In addition to this “emergency” power, Congress also delegated to the president the power to regulate all foreign commerce as a tool of foreign policy through the Export Control Act of 1949 (ECA).19 This act was intended as a temporary measure that would give the president substantial powers to deal with the post–World War II security threat.20 The periodic renewals of the Act, beginning with the Export Administration Act (EAA) of 1969,21 constitute the statutory basis of most economic sanctions.22 During each lapse between renewals, the president has continued sanctions by declaring national emergencies under the IEEPA.23 16.