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The U.S. Can’t and Shouldn’t Label the Muslim Brotherhood as Terrorists

The administration can't designate the entire group as a terrorist organization without flouting the law.

The Trump administration is considering labeling the Muslim Brotherhood as a terrorist organization:

President Trump’s advisers are debating an order intended to designate the Muslim Brotherhood as a foreign terrorist organization, targeting the oldest and perhaps most influential Islamist group in the Middle East.

I have explained before why this would be an error. It’s worth adding that the administration can’t designate the entire group as a terrorist organization without flouting the law. Will McCants and Benjamin Wittes reviewed the question recently, and concluded that the U.S. government can’t do legally do this:

The Brotherhood as a whole, in several different respects, does not meet the criteria for designation under the statute. That’s why, despite pressure from governments like Egypt and the UAE over a protracted period of time, it has not been designated to date under any of the previous three administrations. Barring a change in statute that would almost certainly render the material support law unconstitutional, a designation, notwithstanding the ferment for it, would not be lawful today either [bold mine-DL], even under a Trump administration.

To qualify for a designation, the organization has to be engaged in terrorism or still has the capability and intent to do so, and it has to pose a threat to U.S. nationals or our national security. The Muslim Brotherhood as a whole obviously doesn’t qualify on either count. McCants and Wittes say that certain individual affiliates might qualify for such a designation, but the entire group cannot be defined as a terrorist organization:

The short answer is that the Brotherhood is not in a meaningful sense a single organization at all; elements of it can be designated and have been designated, and other elements certainly cannot be [bold mine-DL]. As a whole, it is simply too diffuse and diverse to characterize. And it certainly cannot be said as a whole to engage in terrorism that threatens the United States.

The Muslim Brotherhood is being targeted for designation on account of its ideology, but the authors emphasize that labeling a group as terrorists solely on ideological grounds would be unlawful:

If credible evidence of terrorist activity is not forthcoming, it would quite simply be illegal for the United States to designate the Brotherhood on purely ideological grounds. To be sure, the Egyptian Brotherhood pursues an illiberal agenda in a democratic framework, but that is not a lawless act. Criminalizing the group for a set of ideas, by contrast, would be a lawless act.

The Times report notes that the administration is looking to add another group to the list:

The proposal to declare it a terrorist organization has been paired with a plan to similarly designate Iran’s Islamic Revolutionary Guards Corps, according to current and former officials briefed on the deliberations.

This would also be a bad idea for other reasons. It would dangerously stoke tensions with Iran at the very least. It would make it extremely difficult if not impossible for U.S. and other foreign companies to do business in Iran, because they would risk being charged with providing material support to the IRGC. Worst of all, it could create a pretext for military action against Iran. I assume these are the same reasons why Iran hawks in the administration strongly support doing it, since they seem determined to antagonize Iran and make war with them more likely.

Both of these moves would be unwise, and both are being pushed by reckless hard-liners here and supported by despotic clients overseas. One would give despotic client states a freer hand to persecute their political opponents, and the other increases the chances of a costly regional war. Neither of these things is good for the U.S. and both should be resisted.



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