Published by The Lawfare Institute
in Cooperation With
On April 8, the Trump administration designated the Islamic Revolutionary Guard Corps (IRGC) as a foreign terrorist organization (FTO) under Section 219 of the Immigration and Nationality Act. A few days earlier, the administration had made good on its threat to impose sanctions on officials of the International Criminal Court (ICC) involved in the examination of U.S. actions in Afghanistan and Israeli actions in other contexts. As part of this effort, it revoked the U.S. visa of Fatou Bensouda, the ICC’s chief prosecutor.
Both measures are unprecedented. This is the first time the U.S. has designated an entire component of a foreign government as an FTO. To the best of my knowledge, this is also the first time the U.S. has imposed individual sanctions on a senior international civil servant for acting in her capacity as an organ of an international institution. These measures reflect broader trends of growing U.S. reliance on targeted sanctions—including going after named individuals—as means for addressing broader foreign and security challenges. In other words, they embody an expanding U.S. practice that cuts across policy areas and, indeed, administrations: throwing sanctions at the problem.
The IRGC Designation
The United States designated the IRGC as an FTO under Section 219 of the Immigration and Nationality Act, as amended (codified in 8 U.S.C. § 1189). President Trump announced the designation, stating that it aims to combat the IRGC’s terrorist activities and support for terrorism around the globe. He asserted that “[t]he designation underscores that the Iranian regime’s use of terrorism makes it fundamentally different from any other government,” seemingly attempting to justify the unprecedented designation of a part of a foreign government. Trump also framed the measure as part of the administration’s “maximum pressure” policy with respect to Iran. A similar statement came from Secretary of State Mike Pompeo, suggesting that the main purpose of the designation is to chill foreign financial institutions and companies from transacting with the IRGC or any related entities. The timing of the announcement was reportedly designed to give a final boost to Israeli Prime Minister Benjamin Netanyahu before the Israeli elections on April 9.
A State Department fact sheet indicates that the IRGC designation will come into force on April 15. The release notes, among other details about the IRGC’s activity, that “[t]he Iranian regime is responsible for the deaths of at least 603 American service members in Iraq since 2003” and outlines other instances of IRGC involvement in attacks on U.S. targets. It pledges to “continue to increase financial pressure and raise the costs on the Iranian regime for its support of terrorist activities until Tehran abandons this unacceptable behavior.” A few days earlier, the State Department posted a summary titled “Maximum Pressure Results,” which provides numbers on the scope of the U.S. sanctions campaign against Iran.
Reports indicate that the move faced opposition from top Pentagon and CIA officials, who argued that it might trigger IRGC retaliation against U.S. personnel, but those objections were overruled by Pompeo and National Security Adviser John Bolton. Wendy Sherman, the former undersecretary of state for political affairs and the chief negotiator of the Iran nuclear deal under President Obama, expressed similar concerns, noting that “[o]ne might even suggest, since it’s hard to see why this is in our interest, if the president isn’t looking for a basis for a conflict …. The IRGC is already fully sanctioned and this escalation absolutely endangers our troops in the region.
The Basis for the Designation and Its Legal Implications
Section 219 of the Immigration and Nationality Act was introduced by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under the AEDPA, the secretary of state may designate a group as an FTO if it is foreign and engages in terrorist activity that threatens the national security of the U.S. or the security of its nationals. The AEDPA outlines the designation procedure, which includes notification to Congress, and its implications. It provides for judicial review of FTO designations before the U.S. Court of Appeals for the D.C. Circuit based on a standard similar to the arbitrary and capricious standard under the Administrative Procedure Act.
After a group is designated as an FTO, the Treasury Department may block its assets; its alien members may be denied admission to the U.S. or, in some cases, be deported; those providing material support to the FTO may face criminal sanctions under 18 U.S.C. § 2339B, of the U.S. Code (the material support statute); and financial institutions must report assets in their possession in which the FTO has an interest to the Treasury Department’s Office of Foreign Assets Control. The FTO list contains roughly 70 organizations, including the Islamic State, al-Qaeda, al-Shabaab, Hamas and Hezbollah.
The immediate practical implications of the IRGC FTO designation are not entirely clear, nor is it clear what the designation adds to existing U.S. sanctions on the IRGC. As I elaborated in a previous Lawfare post, the IRGC has long been designated by the U.S. under different authorities. The Treasury Department designated the IRGC in 2007 pursuant to Executive Order 13382 for supporting Iran’s ballistic missile and nuclear programs; in 2011 pursuant to Executive Order 13553 for its role in human rights violations; in 2012 pursuant to Executive Order 13606 for similar reasons; and in 2017 under Executive Order 13224 on international terrorism. Therefore, any IRGC assets in U.S. jurisdiction would already be blocked under those measures regardless of the FTO designation.
Furthermore, as Scott Anderson observed, Section 1705 of the International Emergency Economic Powers Act (IEEPA), Executive Order 13224 and the other authorities under which the IRGC is currently designated already provide for civil and criminal penalties for those who violate or conspire to violate measures imposed under their authority. However, unlike the FTO material support regime, these penalties technically apply only to U.S. persons or those within U.S. territory, although foreigners interacting with designated entities risk being designated themselves. In other words, existing sanctions already serve as a powerful deterrent for persons and entities considering doing business with the IRGC—but their effect is primarily on people or entities connected to the U.S.
Consequently, the potentially significant “added value” of the FTO designation is likely the material support element. According to Pompeo’s remarks and reporting by the Wall Street Journal and New York Times on the administration’s internal deliberations, the administration intends to use the material support statute to crack down on foreign companies and individuals that have ties to the IRGC and related entities. Whether the administration would follow through on this threat and increase prosecutions against foreign entities remains to be seen. Such prosecutions will also have to overcome substantial practical obstacles in getting the foreign defendants before a U.S. court.
Potential Legal Challenges
As of April 8, the New York Times suggested that an administration “interagency lawyers group” has concluded that the IRGC’s designation as an FTO is “too broad.” I have yet to see additional information about their objections. In principle, the IRGC has a statutory right to seek judicial review of its designation before the D.C. Circuit—and while it is rather difficult to imagine the IRGC as a plaintiff, there is a chance that the legality of the designation could be assessed in federal court. The internal objections from the administration’s own lawyers could prove significant if this scenario materializes.
What could be the arguments underlying this internal legal opposition? At first blush, it appears that the IRGC meets the AEDPA designation criteria. It is a foreign entity; the record shows that it has been involved in numerous terrorist activities; and as the statements from Trump and the State Department emphasized, its actions have harmed or endangered the U.S. and its nationals. However, one could ask whether the IRGC, which is a state military organization, qualifies as a “foreign organization” for AEDPA purposes. Since all existing designated FTOs are nonstate actors, there is no precedent for this in previous U.S. FTO designation practice or case law. Therefore, this is an open question.
As the administration’s lawyers have reportedly concluded, another potential challenge to the designation is that the IRGC designation is overbroad. One argument for this position might be that the prohibition on material support for the IRGC—a vast organization deeply integrated in Iran’s political system and economy and controlling other entities—also potentially captures extensive economic and political activities that are not directly related to the IRGC’s support for terrorism.
The Supreme Court’s decision in Holder v. Humanitarian Law Project provides some guidance on this question. The plaintiffs in that case sought to support the nonviolent activities of the Kurdistan Workers’ Party (better known as the PKK) and the Sri Lankan Tamil Tigers. They challenged the material support statute’s prohibition on the provision of several types of support to an FTO on Fifth and First Amendment grounds. The Supreme Court held that the material support statute was constitutional as applied to the specific forms of support that the plaintiffs sought to provide the FTOs, and rejected the claim that the statute’s terms were too vague. Moreover, the court found that the statute, as applied, did not violate the First Amendment right to free speech. The court made clear, however, that political advocacy carried out independently from the FTO is not covered by the material support statute.
Perhaps most importantly for the IRGC case, the Supreme Court rejected the plaintiff’s argument that it was possible to segregate the nonviolent activities of an FTO from its violent activities, finding that support for nonviolent components can be diverted to violent components of the FTO. It gave deference to the position of Congress and the executive that all contributions to FTOs further their terrorist activities.
Given the IRGC’s sheer size and extensive economic and political ties, its FTO designation captures significantly more political and economic activity compared to the designations of the PKK or the Tamil Tigers. Nevertheless, the Supreme Court’s logic in Holder, which rejects the idea that terrorist and nonterrorist activities of an FTO can be segregated for material support statute purposes, could equally apply to the IRGC. In any event, it will be interesting to learn more about the reasons for the legal objections within the administration.
The Bensouda Visa Revocation
In another first, on April 4, both the Office of the ICC Prosecutor and the State Department confirmed that the United States has revoked the prosecutor’s U.S. visa. According to the reports, the prosecutor would still be able to travel to the United Nations headquarters in New York to perform related duties. The move followed Pompeo’s threat in mid-March to impose visa restrictions and potentially economic sanctions on ICC personnel involved in efforts to launch an investigation of U.S. actions in Afghanistan. He also suggested that the U.S. would impose sanctions on ICC officials involved in investigations of U.S. allies, citing Israel in particular. This statement is a component of a months-long campaign against the ICC spearheaded by Bolton, which has drawn the ire of many states, including U.S. allies.
In his March statement, Pompeo said that the administration was acting pursuant to “existing legal authority to post visa restrictions on any alien, quote, ‘whose entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences.’” Pompeo was likely referring to Section 212 of the Immigration and Nationality Act, codified in 8 U.S.C. § 1182, of the U.S. Code, which governs inadmissible aliens. Among other provisions, § 1182(a)(3)(C), which addresses inadmissibility on foreign policy grounds, provides that “[a]n alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is inadmissible.”
It would be difficult to challenge the secretary of state’s authority to revoke or deny the U.S. visas of ICC personnel in light of the broad language of § 1182, as well as the Supreme Court’s generous interpretation of the executive’s authority to restrict the entry of aliens on national security grounds in Trump v. Hawaii (in the context of § 1182(f) on suspension of entry by the president). The wrinkle in this analysis, as Dapo Akande and Marty Lederman have observed, is the U.S. obligation to allow access to the U.N. headquarters in New York under the 1947 U.N.-U.S. Headquarters Agreement. But the reports suggest that Bensouda and other ICC officials whose visas had been or will be revoked would still be able to travel to the U.N. despite the U.S. travel ban.
Pompeo also threatened that the next step would be economic sanctions—that is, the freezing of the assets of ICC officials within U.S. jurisdiction. Such a move would probably rely on the president’s authority under the IEEPA to block the assets of individuals to address national security threats with a significant foreign element. It would require the president to declare a national emergency with respect to the ICC under the National Emergencies Act, followed by an executive order that would create an ICC designation program similar to other sanctions programs currently administered by the Office of Foreign Assets Control at the Treasury Department.
It is worth underscoring just how extraordinary such a move would be: The United States would be declaring an emergency with respect to the actions of an international institution and imposing severe economic restrictions on its officials. Still, IEEPA delegates broad sanctions powers to the president, which presidents have applied to address situations that do not constitute emergencies in the traditional sense of the term—most recently and controversially, President Trump’s declaration of emergency along the U.S.-Mexico border. While these powers have thus far been applied to terrorists, proliferators, narcotics traffickers, and the likes of Syria, Iran and North Korea, there is no limiting principle under the law as it currently stands that would prevent the president from extending IEEPA individual sanctions to ICC officials it claims pose a national security threat to the United States. The argument seems to be that the ICC is a national security threat to the extent that it exposes U.S. personnel to politically motivated prosecution by what the administration sees as an unaccountable tribunal.
The visa revocations are likely premised on the assumption that intimidating and taxing individual ICC officials will deter them from pursuing investigations of the United States and Israel. But it is not clear whether this move will achieve more than sending the rest of the world the message that officials of international institutions are fair game. Other states might conclude that they are entitled to go after individual officials if they don’t like what an international institution is doing. It is one thing to disengage from the ICC, trumpet its flaws and accountability gaps, and even obstruct its investigations. It is a completely different thing to essentially blackmail individual officials of the court in their personal capacity.
The U.S.’s bull-in-a-china-shop approach to the ICC may well backfire. For the time being, the prosecutor’s office has expressed her intention to stay the course. Bensouda will continue traveling to the U.N. to carry out her responsibilities. The aggressive U.S. approach might heighten existing international antagonism toward the U.S., galvanize international support for the ICC, embolden those investigated or tried by the ICC, and even encourage the prosecutor to double down on her efforts on the Afghanistan and Palestine fronts (as John Bellinger previously predicted).
Both the IRGC designation and the ICC individual sanctions are instances of the heavy U.S. reliance on targeted sanctions as a foreign and security policy tool. The IRGC is already designated under different authorities, and it is not clear at this point what the new FTO designation would add to the existing effort to combat IRGC terrorism. This move, coupled with the Iran sanctions summary released a few days previously, suggests that the administration is applying yet more sanctions for their own sake, while setting ill-defined and generalized policy aims such as ending Tehran’s “unacceptable behavior.”