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Document Type

Article

Publication Date

Summer 2020

Publication Citation

95 Indiana Law Journal 789 (2020)

Abstract

In this Article, I take up one slice of what should be a broad re-examination of

U.S. law and policy. I argue that the new attacks have been undertaken by entities

that can and should be designated as foreign terrorist organizations. Doing this would

permit prosecutors to target those who support these entities with tools that are not

currently available. This Article is both a doctrinal argument that directly addresses

the many legal hurdles that make designating groups, such as foreign hackers and

troll farms, terrorist organizations a complicated endeavor, and a policy argument

about how U.S. law and policy should respond to new modes of terrorism.

To make this case, I make two principal claims. First, on the doctrinal front, I

argue that my proposed reconsideration of the kinds of entities that may be

designated as terrorist organizations is consistent with existing law and with the

purposes of 8 U.S.C. § 1189, the statute permitting designation. Making this case

requires consideration of what it means for an entity to be an “organization,” what

activities constitute terrorism, and how this activity is similar to activity that is

currently considered terrorism. Although the context is different, new organizations

have similar structures and characteristics as organizations that have been designated

already. With respect to what constitutes terrorism, I argue that a harms-based

approach is appropriate. The magnitude and type of harm done by the new

organizations are similar to harm done by existing organizations.16 Second, on the

policy side, I argue that the problem of the entities that are threatening U.S.

economic, governmental, and social infrastructure can be more effectively addressed

if they are designated as terrorist organizations. Despite the attention paid to

counterterrorism law and policy in the past two decades, the area of law is far from

fully developed and has struggled to keep up with changes in the world. Designating

these entities as foreign terrorist organizations would amount to an updating of law

and policy to better combat an evolving threat.

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