Counterterrorism Blog

David Crawford’s article in the Oct. 2nd Wall Street Journal, entitled The Black Hole of a U.N. Blacklist -- Terrorism Suspects Are Stripped of Assets Without Hearings or the Right to Appeal, raises interesting and difficult issues concerning the war on terrorism and civil liberty protections. But, what’s most troubling about the article is its one-sided approach that would take down the single most effective tool, we have today, in our arsenal to deal with terrorism financing.

I have written several blogs on the importance of the UN’s 1267 designation list in the combat against terrorism and terrorism financing. The list is the essential element that obligates all countries to apply the same 1267 sanction’s measures against identified members of al Qaeda and the Taliban and those that have provided them funding and other material support. I have complained that the list is much too short and still covers only a very small number of such al Qaeda and Taliban members and associates. Without such a list, and the UN Chapter VII measures that are associated with it, all countries would, each individually, have to undertake separate judicial and other processes before they could act against such individuals and entities. And each country would be left a free hand to determine if, and toward which individuals, or groups, they would want to act. Those engaged in terrorism and terrorism funding could easily circumvent the asset freezing and other 1267 measures by simply moving their assets elsewhere.

Five years of experience since 9/11 have also shown that it has proven extremely difficult, and in many cases impossible, to use the regular judicial process for dealing with terrorists and particularly those that finance them. Most of the information available related to terrorism financing remains in the domain of sensitive sources and methods intelligence. And even the most solid intelligence information (which, in most terrorism financing cases, is the only information available) is usually not usable in open court. Evidence the Swiss and Italian government failures to bring any successful prosecution against such known terrorism financiers as Youssef Nada and Ahmed Nasreddin, and the counter-challenges being posed by Yasin al-Qadi’s lawyers around the world.

As a member of the Al Qaeda and Taliban Sanctions (1267) committee’s original Monitoring Group, I am quite familiar with the names on the 1267 committee’s consolidated list, and the designation procedures that got them there. I am not aware of any case in which listing was the result of a government “vendetta” against those concerns. In each case credible information was provided to the 1267 committee that designation was fully merited. Nevertheless, I would agree that some method of oversight – some sort of checks and balances – should be devised to insure against misuse.

Mr Crawford cites the case of Saad al Fagih, a Saudi national living in the UK, who was added to the 1267 list in December 2004. Saad Rashed Mohammad al-Faqih was also designated by the U.S. Treasury Department on December 21, 2004, as an al Qaeda associate along with Adel Abdul Jalil Batterjee, for providing financial and material support to al Qaida and Usama bin Laden (UBL). According to the Treasury Department “Saad Rashed Mohammad al-Faqih has maintained associations with the al Qaida network since the mid-1990s, including an individual associated with the 1998 East Africa embassy bombings.” This involved a pattern of of support and involvement that went well beyond providing Usama bin Ladin with a then very sophisticated and expensive satellite telephone that was directly linked to the 1998 bombing of two US embassies in Africa. His designation was also based on his leadership of the Movement for Islamic Reform in Arabia (MIRA) which was regularly used to post al Qaida-related statements and images, and which was used as a channel for raising funds for al Qaida and other terrorist organizations.

Mr. Crawford incorrectly alleges that there are no remedies for those mistakenly included on the al Qaeda/Taliban designation list. The UN Al Qaeda and Taliban Sanctions committee worked out such procedures some time ago. The revised 1267 committee guidelines allow any individual or entity on the list to petition his government to take up his case for his removal. Any government is free to request delisting which is granted if approved by consensus. If consensus cannot be reached the matter may still be referred to the Security Council for resolution The procedures suggest that the matter first be discussed between the government representing the requestor and the government or government’s which sponsored the listing initially.

I do agree with one inference in Mr. Crawford’s article. I believe that serious consideration should be given to establishing a new independent international legal panel (outside the UN Political Structure) charged with receiving and evaluating intelligence and other information to determine if there is, in fact, a sufficient basis to designate an individual or entity. Their initial determination should be made in camera, and provided directly to the Al Qaeda and Taliban Committee which must retain final Chapter VII authority on listing and delisting. The standard used by the panel should be akin to that of “probably cause. ” Once designation occurs, procedures should also be available, through the panel, and under Al Qaeda Committee auspices and guidance, for those designated to demonstrate their bona fides