II. Designation of Terrorist Individuals and Organizations
Resolutions and conventions and norms are good, but actions and implementation are vital. This is why we are working closely in the Counter-Terrorism Committee established by UN Security Council Resolution 1373. The CTC experts are reviewing the measures taken by States under this resolution, identifying areas in which states could benefit from technical assistance and assisting in the coordination of such assistance to help States meet their obligations under the resolution. We're also working in the UN 1267 Sanctions Committee, which maintains a consolidated list of individuals and entities associated with Usama bin Laden, the al-Qa'ida organization or the Taliban, which entities and individuals thus becomes subject to assets freezing requirements and other mandatory sanctions. The 1267 Committee is a very useful mechanism for ensuring the effective internationalization of asset freezes, because all UN member states are required to freeze the assets of any individual or entity included on this Committee's consolidated list.
In addition to determining and publicizing who the terrorists are, these international efforts are acting to cut off the ability of terrorists and their supporters to operate, particularly by disrupting the financial support networks for terrorists and terrorist organizations. Foreign terrorists often depend upon widespread financial support networks. Asset freezes are an important tool in targeting these networks. By disrupting them we make it much more difficult for terrorists to pursue their activities.
We are also working regionally and domestically on these issues. One major portion of our domestic effort is the designation of individuals or organizations that are involved in acts of terrorism. There are now powerful domestic authorities to designate and freeze the assets of terrorists and their supporters and to impose other measures against them.
A. AEDPA/Patriot Act/Section 219
A major authority is section 219 of the Immigration and Nationality Act, which was added by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and later amended by the USA PATRIOT Act, and other provisions. This provision gives the Secretary of State the authority to designate a foreign group as a foreign terrorist organization (FTO) if he determines that the group engages in terrorist activity or terrorism that threatens the security of U.S. nationals or the national security, foreign relations, or economic interests of the United States. There are currently 36 designated FTOs.
Designation as an FTO has several consequences within the United States. First, it allows our government to require U.S. financial institutions, should they become aware of having possession of or control over assets of an FTO, to block transactions in the assets and to report them to the Treasury. In addition, once a group has been designated, it becomes a federal criminal offense for anyone to knowingly provide material support or resources to the FTO. This consequence brings in the resources of our law enforcement personnel to help in the effort to control and apprehend terrorists and their benefactors. There are also certain immigration consequences that I'll get to later.
Since designation has serious consequences, there are procedures in place to minimize the risk of mistaken designations - and correct them, if necessary. No designation can be made until an administrative record has been prepared setting forth the basis for the proposed designation. Although classified information may be included in the record, courts have the ability to review the record, including any classified materials, ex parte and in camera. Designations expire after two years, unless there is a specific redesignation upon a finding that the relevant circumstances "still exist".
Although the United States can and will act alone under domestic authority in designating (and taking other actions) against terrorists, we know we are more effective when other States act in coordination with us. We are pleased that the European Union, for example, has worked with us to ensure that nearly every terrorist individual and entity we have designated has also been designated by the E.U. We have also worked closely with other States including Italy, China, Russia, Germany, Algeria and Saudi Arabia to submit names to the U.N. for designation, so that the assets of these designees will be frozen worldwide. The international designation process also has certain safeguards. For example, the UN 1267 Sanctions Committee has incorporated into its guidelines a non-exclusive process for seeking review of its designations.
B. U.S. Authorities: Executive Order 13224 and Executive Order 12947
The broadest and most flexible authority is the most recent: Executive Order 13224 - signed by President Bush on September 23, 2001 - which blocks the assets of terrorists and their supporters designated by the President in the Annex to the Order. It also provides authority for the Secretary of State or the Secretary of the Treasury, in consultation with each other and the Attorney General and the Secretary of Homeland Security, to make additional designations of individuals and entities meeting the Order's criteria. The Order is targeted on foreign individuals and entities that commit, or pose a significant risk of committing, acts of terrorism; those who give them material support or provide them with financial or other services; and their subsidiaries, front organizations, and agents. We have avoided use of the mere "associated with" basis for designation. This Order allows us to target a broader spectrum than simply those who have been specifically designated as FTOs, and indeed, more than 250 individuals and organizations are currently designated under the Order. There is an additional, more targeted authority: a previous Executive Order, that allows the Secretary to designate organizations that pose a significant risk of disrupting the Middle East peace process.
There are several legal consequences of designation pursuant to Executive Order 13224. For example, with limited exceptions set forth in the Order, or as authorized by the Treasury Department's Office of Foreign Assets Control (OFAC), designations result in the blocking of the designated individual's or entity's assets within the U.S. or in the possession or control of U.S. persons worldwide. The Order also prohibits U.S. persons from engaging in any transaction or dealings in such blocked assets.
As with FTO designations, there are regulations that provide specific procedures for seeking administrative reconsideration of a designation. In addition, OFAC will consider, on a case-by-case basis, exceptions to a freeze so that a designee can pay for certain living expenses or legal services in a manner consistent with Resolution 1452 (which allows for such exceptions).
C. International Cooperation on Terrorist Finance
We are pleased that, working with us, all member countries of the Gulf Cooperation Council have increased oversight of their banking systems, and several countries - including Bahrain, Egypt, Qatar and the UAE - have passed domestic legislation specifically designed to counter money laundering. The United States plays a leading role within the Financial Action Task Force, and worked with the other members to adopt the Eight Special Recommendations on Terrorist Financing and the guidance for their implementation. Following the adoption of these recommendations, a number of jurisdictions, including key Middle Eastern countries have acted to strengthen their legal and regulatory regimes to avert the abuse of charitable and other nongovernmental organizations.
Terrorists are still taking advantage of vulnerabilities in other countries. Often these countries have the will to assist but lack either the expertise or the means, including the legal authority, to do so. For this reason, U.S.-financed training and technical assistance programs include training and assistance in developing and implementing laws as well as in other areas.
Efforts for the future will focus on certain areas of vulnerability. For example, as the international banking system becomes a system that the terrorists can no longer safely use, we are helping develop new norms to limit abuse of alternative, informal value transfer systems, such as the traditional "hawalas" and wage remittance systems, which are still being used to transfer resources among terrorists. Yet it is important that these norms do not cut off legitimate commerce, such as the wage remittance systems that enable immigrant or temporary workers to send funds to their families back home.
We are also targeting the misuse of charities, especially where there is willing complicity on the part of the charities' leaders. However, we are very sensitive to the plight of those people that legitimate charities, including Islamic charities, assist. And we are proud that Americans provide the most generous support of charities in the world. Our aim is thus to put in place effective oversight on how such funds are used, while still enabling organizations to raise funds effectively for charitable purposes both here and abroad.
IV. Exclusion of Terrorists from U.S.
The Patriot Act also gives the Secretary of State new authority to designate terrorist organizations for immigration purposes, in consultation with or upon the request of the Attorney General. The list of organizations designated under this authority is commonly known as the Terrorist Exclusion List (TEL). Specifically, an organization can be placed on the TEL if the Secretary of State finds that the organization commits or incites to commit a terrorist activity, prepares or plans a terrorist activity, gathers information on potential targets for terrorist activity, or provides material support to further terrorist activity. We have already designed 48 such organizations, and we continually monitor the activities of organizations in order to determine whether designation may be appropriate. Individual aliens who solicit funds, recruit members, or provide material support for a TEL organization are inadmissible to the U.S. and may be prevented from entering. If they are already in U.S. territory, they may (in certain circumstances) be deported.
The USA PATRIOT Act also expanded the Secretary of State's authority to exclude from the U.S. aliens who engage in terrorist activities or are linked to terrorism. For example, an alien who has used his position of prominence within any country to endorse or espouse terrorist activity, or to persuade others to support terrorist activity or a terrorist organization are inadmissible if the Secretary determines that these acts were done in a way that "undermines" U.S. efforts to reduce or eliminate terrorist activities.
The Act also gave the State Department access to the National Crime Information Center, and in the time since the Act's passage we have incorporated nearly 8 million criminal records into our visa lookout database so that these records can also be considered by consular officials as they determine whether to grant a visa.
V. Other measures: Capture and Interdictions; detainees and military tribunals
We are, of course, proceeding concurrently on all fronts - designation, blocking money and movement, and capture and trial.
Capture of terrorists and interdictions
In terms of capture and detention of the terrorists, we have been able to obtain control over a number of them through our military operations in Afghanistan and Iraq. In the United States, as I mentioned, our police have authority to apprehend not only terrorists but also those who assist them, since such assistance is now a criminal offense in the United States. Elsewhere, we are working with other law enforcement authorities to perform joint operations and take terrorists into custody. To help strengthen this effort, we are negotiating with EUROPOL (the European Police Association) on a way to enable the exchange of information on individuals between EUROPOL and U.S. law enforcement. We are also successfully obtaining and sharing custody of terrorists through such means as extradition treaties.
We, along with our allies and cooperating flag states, continue to conduct maritime interception operations in international waters in several regions of the world as part of our effort to deny the high seas as a haven for moving, arming, or financing international terrorists. Earlier this month, the United States and a group of eleven cooperating countries agreed in Paris on a Statement of Interdiction Principles, as part of the Proliferation Security Initiative (PSI). These eleven countries have identified practical steps to interdict shipments of weapons of mass destruction, their delivery systems and related materials to or from states and non-state actors of proliferation concern at sea, in the air or on land. Actions taken under the PSI will be fully consistent with national legal authorities and relevant international law and frameworks.
Detainees and military tribunals
The detainees held at Guantanamo were, for the most part, seized in the course of the ongoing conflict in Afghanistan. As enemy combatants, their capture and detention while hostilities are ongoing are entirely consistent with the laws and customs of war. Although detainees who have violated the laws of war and targeted civilians are not entitled to be treated as "prisoners of war", let me assure you that they are being treated in a manner consistent with international principles pertaining to the treatment of POWs to the extent appropriate and consistent with military necessity. They are treated humanely and with sensitivity to their cultural and religious backgrounds. Many of them have improved their health thanks to our medical care and proper nutrition. Many are providing information that is highly useful in our effort to guard against future threats. Some have been released, and more will be released in the future if they are determined not to pose a continuing terrorist threat.
When the time comes for those who are found to have committed crimes to be brought to justice, the President has given authority for the use of military tribunals. This will make possible a more secure environment for the protection and safety of all those participating in the process, including the accused, and will also enable the protection of classified evidence and testimony so as not to compromise military operations during the ongoing war against terrorism. Appropriately cleared civilian defense counsel will also have access to classified information, as well as the assistance of specifically detailed military defense counsel. In any proceeding before a military tribunal, the rules of procedure ensure that fundamental rules of fairness will be followed, including presumption of innocence, proof beyond a reasonable doubt, access to prosecution evidence, cross-examination of witnesses, and freedom from double jeopardy. Defendants will not be required to testify and no adverse inference is to be drawn from silence. Trials will be public whenever possible consistent with security considerations, and in any case a full verbatim transcript will be made of all trials.
The United States has long been committed to the promotion of human rights and fundamental freedoms. Ensuring the full enjoyment of all human rights and fundamental freedoms is a central part of our pursuit of global peace and prosperity. The efforts we now engage in, as part of the fight against terrorism, should not be seen as a replacement of or threat to our preexisting efforts. Rather, the fight against terrorism has cast these more traditional efforts - public diplomacy, promotion of respect of human rights, provision of foreign assistance, promotion of the rule of law and an international system that fosters trade and economic cooperation - in a new light that reveals how urgent and vital they are.
The terrorist threat is also urgent, and very serious. This makes it all the more important that the U.S. respond to the best of our ability, and we have sought and obtained domestic legal authority to take strong domestic actions. Yet where authority exists or has been given, the Administration has also "committed to exercising [these powers] responsibly ... and in consultation with other countries."
For the future, we continue to seek international treaties and agreements whereby nations can cooperate internationally in the fight against terrorism. We are looking both to faithful friends, and to former foes. President Bush has made clear that every nation has the opportunity - and the duty - to join us in the fight against terrorism. He has made clear that we welcome those who are willing to join us, but we will act alone if necessary. This strategy has been effective, in many respects. Although some terrorist attacks continue, the global coalition has been able to identify, block, and capture many terrorists. There is much yet to do, however. We must implement the treaties to which we are party. We must develop new ways to cooperate in operations. We must share important information more quickly among countries, as well as ensure that the specific people who need to know it get it in time. There are many other areas where progress is possible. Lawyers and international law will continue to play a key role, and I look forward to working with you as we proceed.