Adam Isacson

Still trying to understand Latin America, my own country, and why so few consequences are intended. These views are not necessarily my employer’s.

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Terrorism

The meaning of the FARC’s removal from the U.S. terrorist list

This article appears today at the Colombian analysis site Razón Pública as “¿Qué implica que las FARC ya no estén en la lista de terroristas de Estados Unidos? I last covered this issue on this site in March 2020.


The meaning of the FARC’s removal from the U.S. terrorist list

Adam Isacson, Director for Defense Oversight, Washington Office on Latin America

At least in the 20 years since “Plan Colombia,” it’s been rare to see the U.S. and Colombian governments disagree in public about something. Even during the worst days of police abuses during the Paro Nacional protests earlier this year, Washington’s expressions of concern were remarkably mild.

That’s why it was surprising to hear President Iván Duque express disagreement with a step that the Biden administration took to coincide with the five-year anniversary of Colombia’s peace accord. “We understand and respect this information from the United States, but we would have preferred a different decision,” he said on November 29, the day before the State Department removed the FARC from its list of foreign terrorist organizations.

The removal of the FARC, or rather the ex-FARC, should be uncontroversial. The Revolutionary Armed Forces of Colombia on the U.S. list doesn’t exist, and hasn’t since August 2017. Of its 13,600 members who underwent demobilization, more than 90 percent haven’t carried out an act of organized violence in more than five years. They are playing by the rules and integrating themselves into civilian life.

A few continue to engage in violence against civilians. These are mainly members of Colombia’s two main ex-FARC dissident networks, the one headed by “Gentil Duarte” and the one known as “Nueva Marquetalia,” which either refused to demobilize in 2016 or abandoned the process later. Most of these groups’ members are new recruits with no guerrilla background; many weren’t even adolescents yet when the peace accord was signed. The Biden administration added these groups to the State Department’s list, in the FARC’s place.

The step taken on November 30, then, was less a “removal” of the FARC than an updating of the terrorist list to reflect reality.

As the list was being interpreted, “Gentil Duarte” and “El Paisa” were in the same category as former fighters now raising children and going to schools, starting their own businesses, or participating in competitive rafting teams. That was absurd.

But that was the reality. Under the “material support for terrorism” provisions in U.S. law, as they were being interpreted, it has been a crime—punishable with fines or up to 15 years in prison—for U.S. citizens to provide any demobilized FARC members with money, lodging, training, expert advice or assistance, communications equipment, facilities, or transportation.

The U.S. government was interpreting this very strictly. It has literally been illegal even to buy them a cup of coffee, much less include them in development meetings or—as in the case of Humanicemos, a group of ex-FARC deminers who were unable to get any U.S. aid—to instruct them in a skill like landmine removal.

In off-the-record conversations going back to 2017, U.S. officials have told of incidents in which former low-ranking guerrillas have been barred from Colombian government meetings to plan Territorially Focused Development Plans (PDETs) or to consult with communities about government services, just because the U.S. government was partially or fully covering the meetings’ cost.

In some cases, U.S. officials only found out afterward that low-level former guerrillas had attended U.S.-funded events. When that has happened, because that ex-guerrilla may have eaten a snack provided by the conference organizers, or may have received some knowledge by attending the event, U.S. officials have had to endure numerous subsequent meetings with State Department lawyers, going over every detail to document and understand what happened, what the organizers knew, and whether it was punishable.

The delay in removing the FARC not only undermined U.S. programming, though. It made the U.S. government look out of date, unaware that the FARC on the list didn’t exist anymore. It even made the U.S. government appear actively hostile to the entire peace process, echoing the notion—expressed this year by Foreign Minister Claudia Blum and Defense Minister Diego Molano—that the Comunes party and the dissident groups (which, in fact, often target Comunes members) are somehow linked. Either way, the message Washington sent by keeping the FARC on the list was toxic.

It is great news that this step has finally been taken. But the Biden administration certainly could have rolled it out better. News of the impending decision leaked to the Wall Street Journal very early, on November 23, perhaps from an individual who opposed removing the FARC from the terrorist list. The explanation, with fuller context, did not come from the State Department and White House for days afterward, in part because November 25 was a major national holiday in the United States.

As a result, the initial reaction from many colleagues and journalists in Colombia was confused. Those of us who work on Colombia policy here in Washington got a lot of questions. Here are answers to a few of them.

Why did it take so long to take the FARC off the list, especially if it was causing so many problems for U.S. programming? There is no great answer to this, other than that while it is easy to add a group to the State Department’s list—all you need is a few attacks on civilian targets—it is hard to remove it. Revocation of a “terrorist” status requires a deliberative process within the State Department in which all interested actors have to reach consensus. The AUC formally demobilized in 2006 but remained on the list until 2014. Peru’s MRTA barely existed after the 1997 Japanese embassy fiasco, but was on the list until 2001. The Washington Post reported that each group’s terrorist designation usually gets reviewed every five years, and that the FARC had last been considered in April 2015. A fresh review of the FARC didn’t happen in 2020 because of the pandemic.

Does this mean FARC leaders are no longer wanted by U.S. justice? Nothing changes about extradition requests for FARC members. They are wanted in U.S. courts either for sending cocaine to the United States or for kidnapping or killing U.S. citizens. These are specific crimes, not the vague charge of “terrorism.” Those processes continue, so former FARC leaders wanted by U.S. justice still face risks if they travel internationally. Because he was arrested in Ecuador in 2004 while apparently serving as an intermediary for talks about three U.S. citizen defense contractors whom the FARC was holding at the time, Simón Trinidad remains imprisoned in the state of Colorado for his role in that specific case.

Is this an insult to the FARC’s victims? Annette Taddeo, a Democratic Party state senator in Florida, emigrated from Colombia when she was 17, after the FARC kidnapped her father. “For me and many of us, this is painful and very personal,” she tweeted. The FARC upended the lives of thousands of Colombians; many of them, and their loved ones, are no doubt outraged to see any sign of conciliation like a U.S. recognition that those leaders are no longer behaving as terrorists. The fact, though, is that the top non-dissident ex-FARC leadership appears truly to have renounced terrorism. They remain guilty of many things, and must answer to their victims and the transitional justice process. But the “terrorist” label no longer sticks.

What about Sen. Marco Rubio’s complaint that any U.S. money that benefits ex-FARC members should go through the Colombian government? The Colombian government “doesn’t want the delisting,” Sen. Marco Rubio (Republican of Florida), who is close to Uribismo, told U.S. radio. “What they wanted was, to the extent that you’re going to provide assistance to these people who abandoned the guerrilla fight, laid down their weapons, become politically engaged, we want you to run that assistance through the democratically elected government of Colombia, not unilaterally.” This argument is confusing. Most US assistance with ex-combatants’ participation—reincorporation, rural development, demining—would go hand-in-hand with the efforts of Colombian government agencies. U.S. aid almost never goes to such agencies directly as cash payments.

Why is Cuba still on the list of state sponsors? Before leaving office in January 2021, the Trump administration re-added Cuba to its list of state sponsors of terrorism, alongside Iran, Syria, and North Korea. The main reason cited was Cuba’s refusal to extradite ELN leaders who had been in the country for peace talks with the Colombian government, a move that would have violated those talks’ protocols. That the Biden administration hasn’t taken steps to remove Cuba, even as it removes the FARC, probably owes more to the politics around U.S.-Cuban relations. It would be very difficult to take Cuba off of the list—or perform any other act of engagement—in the weeks after Cuba’s government aggressively suppressed a citizen protest movement.

Why was the announcement rolled out this way? When we heard that the FARC were being taken off, why didn’t we know right away that the dissident groups would be added? There is no great answer to that. The impending decision was leaked, possibly by a hostile party. But for days, the Biden administration offered no new context, so many actors were left think that all of the FARC was being taken off of the list, and even that FARC leaders were no longer wanted by U.S. justice.

The rollout of this news was not graceful. In today’s climate, when a lie travels around the world before the truth can even get its running shoes on, that does damage. Still, there is only so much that the Biden administration could have done. Many sectors of our societies will always be determined to believe what they want, regardless of the facts we present to them.

There is a communications lesson here, though—one that recalls the plebiscite debacle of 2016. It is crucial to get out ahead of a story as much as possible, so that when it breaks, the response can be nimble, and people who are open to the truth—the majority of people, still—can get the context quickly.

What happens if Mexican cartels go on the terrorist list

It’s a waste of time to write something that concludes, “President Trump hasn’t thought this through.” Of course he hasn’t. But still, let’s think through Trump’s declaration this week that he plans to add Mexican criminal groups (“cartels”) to the U.S. government’s list of Foreign Terrorist Organizations.

Here’s that list, covering the whole world. There are some pretty vicious groups listed on it: ISIS, Al Shabaab, Boko Haram, Al Qaeda, the ELN.

But there are a lot of vicious groups missing. You don’t see the Russian Mafia, the Hong Kong Triads, the Japanese Yakuza, Italy’s Cosa Nostra, Brazil’s PCC, Central America’s MS-13—or Mexican cartels. There aren’t any criminals or mobsters on the list. Which makes President Trump’s call to add Mexican organized crime groups look bizarre.

But it’s not that bizarre, because U.S. law about terrorism is pretty weird anyway. Just start with the term “terrorism”: the very good Wikipedia entry on “Definitions of Terrorism” finds several different ones in the U.S. Code, the Code of Federal Regulations, Defense Department guidances, and elsewhere. Those definitions aren’t in sync.

They differ on an important question: whether an act of violence has to be politically motivated to be considered “terrorism,” or whether it’s enough that the violence just seeks to influence a government’s actions. A drug cartel using violence to keep government out if its business fits the second definition, but “keep out of our business” doesn’t really count as a political motivation.

The law governing the State Department’s listing of Foreign Terrorist Organizations (Title 22 U.S. Code Section 2656f(d)(2)) uses the first definition, requiring some political motivation in order for a violent group to be considered “terrorist”:

The term “terrorism” means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.

So for the purposes of the “terrorist list,” there has to be a political motivation. Adding Mexican organized crime to that list would stretch the definition of “political motivation” so much that it would open the door to adding potentially dozens of worldwide criminal groups to the list.

It’s not hard to imagine why the State Department, the Defense Department, and the intelligence community would want to avoid doing that. Mixing criminal groups with terrorist groups means losing focus. In the years after the September 11, 2001 attacks, there was a broad consensus that the U.S. government needed to concentrate its resources and assets on groups, like Al Qaeda, that had used terrorism to kill civilians for a “cause,” no matter how twisted. There was an assumption (usually borne out) that criminals would not be so radicalized or extremist that, for instance, they’d employ suicide bombers.

So there were no serious proposals to dilute the focus by adding organized crime to the terrorist list. The U.S. government already had—and still has—ample tools for dealing with drug-trafficking organized crime groups, going back to the drug war legislation of the 1980s and 1990s. Kingpin Act designations. Lists of specially designated narcotics traffickers. Decertifications of states that collude with them. And billions of dollars in aid each year under the International Narcotics Control and Law Enforcement program and Defense budget authorities.

Meanwhile, perhaps because they lack political motivations, organized crime groups tend to be much more transient and shorter-lived than terrorist groups. They’re slippery. They fragment and change names, they lose and gain relevance, more quickly than the groups on the FTO list. Start adding organized crime groups to the list and get ready to update it constantly.

Look at the organized crime landscape in Mexico. In 2006, it was dominated by the Sinaloa cartel and some smaller ones: Gulf, Zetas, Juárez (Carrillo Fuentes), Tijuana (Arellano Félix), Familia Michoacana, Beltrán Leyva, and not many others. If your terrorist list included those today, it’d be irrelevant. Some of those are functionally defunct, you’d have to add splinter groups of some of them, and you’d have to consider adding groups that weren’t on the radar in 2006, like the Cuinis, the Viagras, Guerreros Unidos, Los Rojos, Nueva Plaza, Nueva Resistencia, Gente Nueva, Santa Rosa de Lima, Northeast Cartel, and many others—first among them, the New Generation Jalisco Cartel, headed by Nemesio Oseguera alias “El Mencho.”

A decade ago, Colombian Police Chief Gen. Óscar Naranjo said that his country’s authorities had reduced the “useful lifespan” of the average top drug trafficker to 24 months, after which they are captured or killed. When undergoing the thorough, deliberative process of listing a group, it hardly makes sense to keep up with all of these comings, goings, and schisms.

Some Mexican analysts have pointed out since Trump’s announcement that listing Mexican criminal groups as “terrorists” increases the likelihood of military action in Mexican territory. That may technically be true, though it’s still a very slim likelihood. It’s hard to imagine U.S. military personnel carrying out an operation on Mexican soil without Mexican consent just because a Mexican criminal group has been given a new status. Still, there’s always a scenario that goes something like: “President López Obrador, we have the coordinates where ‘El Mencho’ is right now. We have one hour. We don’t care what you say, a drone is on its way.”

Short of military operations, listing Mexican criminal groups would mean a heavier U.S. hand in Mexico because it would cast a wide net across Mexican society. Organized crime survives everywhere through its deep roots in the state and civil society. (Terrorist groups also do, to some extent, but tend to be more “off the grid” because their relations with states are more adversarial.) People who live in legality are quiet “nodes” on the organized-crime network. If Mexican groups end up on the FTO list, the U.S. government’s list of Mexican citizens offering “material support to terrorism” (in the eyes of the law, the same as raising money for Al Qaeda) could explode, and could include officials at all levels of Mexican government. It could also include people who make extortion payments under duress. Mary Beth Sheridan explained it well in the Washington Post:

Mexican organized-crime groups aren’t isolated bands operating at the margins of society. Their members own legitimate-seeming businesses, exert control over communities and routinely pay off politicians and police. If any contact with organized-crime groups was construed as support for terrorism, many Mexicans — including innocent people — could find themselves punished.

This might not be a totally bad consequence, because it would mean more accountability for corruption. But it could gum up travel, trade, and overall relations pretty badly.

But the crackdown wouldn’t just happen in Mexico. Listing Mexican groups as terrorists could also cast a wide net across U.S. society. It’s “possible Trump’s move could see U.S. drug dealers labeled and treated as terrorist supporters,” Alex Ward wrote in Vox. The same, one assumes, would go for U.S. bankers or realtors who facilitate cartels’ money-laundering: no more fines, they’d be looking at jail time for terrorist financing. And it would come down hard on all the U.S. citizen “ant traffickers” who take advantage of America’s lax gun laws by buying a few AR-15s at gun shows and stores, driving them south across the border in their cars’ trunks, and selling them to criminals for robust profits. The banking and gun lobbies will be unhappy with this new counter-terrorist scrutiny.

Another interesting outcome would be that Mexican victims’ asylum claims might get a boost in U.S. immigration courts. Their cases wouldn’t become “slam dunks,” necessarily, but it’d certainly help them. If you’ve been threatened by a group on the FTO list, your claim is going to be stronger than it would be if you were just threatened by a criminal organization.

If a group is seen as so active and threatening that it makes the terrorist list, it’s easier to argue that the group has national reach, so the asylum seeker isn’t safe anywhere in her country’s territory. Also, it’s easier to argue that the asylum-seeker’s government isn’t capable of protecting her. That latter argument is even stronger because of corruption. Several years ago it was nearly impossible to argue that Colombia’s government couldn’t protect people from the FARC because the FARC had corrupted Colombia’s government: the FARC didn’t work that way, they fought the government. But Mexican organized crime does work that way: the victims of the 2014 Ayotzinapa massacre—to take one example among very many—were the victims not just of Guerreros Unidos, but of local security forces that had become the criminals’ virtual allies.

Would victims of these groups automatically get asylum? No, not at a time when the Trump administration has raised the bar for asylum to nearly impossible, and certainly illegal, levels. But if asylum-seekers’ lawyers (if they have them) can say their clients are threatened by groups on the State Department’s terrorist list, they will be sure to feature that very prominently in their clients’ applications.

From U.S. bankers being labeled “terrorist supporters” to asylum-seekers having a big new argument, a lot of unintentional outcomes could come from the Trump administration “crossing the streams” and adding Mexican criminal groups to the terrorist list. Clearly, President Trump hasn’t thought them through.

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