Counterterrorism Blog

Fidel Castro’s announcement that he is formally giving up power will eventually revive proposals that the U.S. Government should remove Cuba from the list of countries that support international terrorism. Although the Castro government has not sought removal from the terrorism list, North Korea has been seeking removal for several years as part of the price for being more forthcoming in the nuclear disarmament negotiations talks which resumed today.

Formal designation by the Secretary of State as a state sponsor of international terrorism for “repeatedly supporting acts of international terrorism,” triggers a variety of economic sanctions, including bans of foreign assistance, denial of tax credits for American individuals and companies earning income in terrorism list countries. It also requires 30-day advance notification to Congress (and possible opposition in Congress) of export licenses for dual use goods and services that could enhance the designated country’s military capability or ability to support terrorism.

These sanctions date back to the Export Administration Act of 1979 and the provisions (Sec. 6 (j) Congress enacted after learning that Commerce and State Department officials issued export licenses for tank transporter trucks for Libya and C-130 cargo planes for Syria despite those two country’s threats to their neighbors.

In any discussion of removing Cuba or North Korea from the terrorism list it is worth pointing out that Congress enacted procedures nearly two decades ago requiring that it be notified in advance, allowing time for the lawmakers to try to block the proposed move if they disagreed.

These procedures were laid out under the Anti-Terrorism and Arms Export Amendments Act of 1989 (ATAEAA, Public Law 101-222). The law was a Congressional reaction to the Reagan Administration’s removal of Saddam Hussein’s Iraq from the terrorism list in 1982 without informing Congress, even informally, in advance.

Under the law, a compromise worked out with the State Department, the President may try to remove a country from the terrorism list under one of two procedures: Under the first, which he may use only before the proposed rescission takes effect, he must submit a report to selected legislators that states:

(i) there has been a fundamental change in the leadership and policies of the government concerned;

(ii) that government is not supporting acts of international terrorism, and

(iii) the government has provided assurances that it will not support acts of international terrorism in the future.
This procedure was adopted at the State Department’s request in case there was a situation in which the designated country’s leadership and policies suddenly changed and the U.S. wanted to provide economic or other assistance. Iraq was an example.

Alternately, the President may lift a terrorist list designation by sending a report to the Congressional leadership 45 days before the proposed rescission would take effect that states:

(i) the government concerned has not provided support for
international terrorism during the preceding 6-month period;

(ii) and the country has provided assurances that it will not support
acts of international terrorism in the future.

The six month period for “clean hands” was a compromise worked out between Rep. Howard Berman (D-Calif.) a co-author of the legislation and Richard Murphy, the Assistant Secretary of State for Near East Affairs. I was involved in the discussions as the Counterterrorism Office’s representative. In actual practice, we looked at a country’s record over a much longer period, at least two years, in assessing whether it was supporting terrorism. The 45-day advance notification procedure was worked out to provide Congress with time to respond to a notification without specifying a one house veto procedure that had been previously challenged in the courts over Congressional efforts to block arms sales.

In October 1991, Congress added a new provision to the State Department Authorization Act Pub. L. No. 102-138, § 321) allowing it to block a rescission by passing a joint resolution of disapproval, within the 45-day notification procedure specified under the 1989 ATAEAA legislation.

Thus any Presidential determination that a country has stopped its support for international terrorism and has given assurances that it will not support terrorism in the future must pass Congressional muster. Iraq was removed after the new post-Saddam Hussein government took office.. Libya was removed following lengthy negotiations, including compensation for the families of the victims of Pan Am 103, even though there was opposition from some family members.

In Cuba’s case, the country has been relatively passive in its support for terrorism in recent years, perhaps because of the demise of the old Soviet Union, its major backer, and Cuba’s resulting economic problems. It remains on the terrorism list primarily because of its harboring of Latin American terrorist suspects and a few American fugitives from law. However, Castro’s regime has not sought removal from the terrorism list, making it more difficult for a President to be able to obtain and give Congress any credible assurances that the Cuban regime would not support terrorism in the future. Perhaps even more important is the opposition that would likely be aroused among the Cuban-American voting bloc in the politically important state of Florida. While Castro was in power no Administration has an incentive to take on that issue.

In the case of North Korea, talks resumed today on the nuclear disarmament issue.

But its officials complained in advance that they were dissatisfied with progress in removing the country from the terrorism list, according to Washington Post interviews with persons, including a Senate aide.who met with the North Koreans last week.

Although the nuclear issues are the main sticky point in the talks, North Korea’s support for terrorist groups have not gone unnoticed elsewhere. For example a January, 2008 Congressional Research Service Brief, page 17, describes press reports that North Korea has provided arms to Hezbollah in Lebanon and the Tamil Tigers in Sri Lanka. Both groups are designated as foreign terrorist organizations by the U.S.

The reports fit a historic pattern. North Korea provided training an other assistance to a variety of terrorist groups in the 1960’s and 70’s including the Palestine Popular Front for the Liberation of Palestine when it conducted major aircraft hijackings and other attacks and to the Japanese Red Army. These two groups staged a joint attack in 1972 that killed 24 persons including 16 American citizens from Puerto Rican when their plane landed in Israeli for a Christian pilgrimage.

Additionally, in view of this past support for terrorist groups and more recently its support for groups such as Hezbollah and the Tamil Tigers who use suicide tactics, members of Congress would also be likely to be concerned about whether North Korea could provide iron-clad guarantees that it would not share any nuclear expertise or materials to terrorists intent on fashioning a “dirty bomb.” The issue was raised again in a Washington Times article earlier this month citing a recently released government report to Congress that said the North Koreans had raised such a threat during 2005 discussions with an American academic.

In short, any Cuban supporters or North Korean officials who may think that removing these countries from the terrorism list is a simple matter have more home work to do.