The Changing Face of Terrorism and the Designation of Foreign Terrorist Organizations

Abstract

In December 2015, a terrorist group comprising elements of the Russian government, contractors, and civilians hacked in Ukraine's power grid and managed to turn of the power for hundreds of thousands of people. According to the best analysis of the U.S. Intelligence Community, elements of that same group interfered in the 2016 U.S. by hacking into e-mail databases and releasing negative information, launching a social influence campaign designed to suppress votes among groups, such as African-Americans, thought likely to support one candidate and to bolster the opinions of groups thought likely to support the other candidate. That same terrorist organization continues to attempt to hack into the databases of elections officials across the U.S., insert malicious code on computers that control parts of the U.S. power grid, and attack critical infrastructure in Europe and Asia.

This Article shows how the U.S. government can use existing legal tools to more effectively combat this organization and others like it. Law enforcement officials attempting to prevent these attacks have been hampered in their efforts because one of the most important mechanisms used against other terrorist organizations has not been deployed in this case. Under U.S. law, the Secretary of State has the authority to designate an entity as a "foreign terrorist organization." Once an organization is so designated, prosecutors attempting to combat the organization have additional tools available to them.

In this Article I show that the doctrinal and policy hurdles to using these tools are easily surmountable. Drawing on international criminal law and organization theory, I show that the organization responsible for these attacks shares the necessary characteristics to meet the statutory definition of a terrorist organization. Further, I argue that the kinds of harms inflicted in the U.S. and elsewhere by these attacks is similar in kind and magnitude to the harms traditionally associated with established terrorist groups. Finally, I show that my approach is consistent with U.S. counterterrorism strategy.