On Thursday They Were Terrorists; On Friday They Weren't
As of last Friday, the Mujahedeen-e-Khalq (MEK), a formerly violent Iranian opposition group once allied with Saddam Hussein, no longer appears on the State Department's list of "foreign terrorist organizations" (FTOs). The delisting comes after years of lobbying, assisted by prominent political figures, and legal wrangling, culminating in an appeals court ruling ordering Secretary of State Hillary Clinton to act on the MEK's petition by Monday. Clinton's decision probably means the MEK's supporters, who include former Attorney General Michael Mukasey, former New York Mayor Rudy Giuliani, and former Pennsylvania Gov. Ed Rendell, do not need to worry about being charged with providing "material support" to an FTO by helping the group shed that label. Theoretically, however, they could still be prosecuted if it can be shown that they "coordinated" their advocacy with the MEK prior to Friday.
Over at Popehat, Los Angeles attorney Ken White, a former federal prosecutor, recalls that in 1999 he helped convict a man "for helping terrorists who now aren't terrorists." The defendant helped MEK members "secure legal residence in the United States through various forms of fraud, including fraudulent asylum applications." In addition to immigration fraud, his actions qualified as providing material support to an FTO—possibly the first conviction under that provision, White says. Looking back, he is ambivalent about his role in the case, recognizing the political considerations that determine which groups count as FTOs:
The six people the MEK killed in the 1970s are still dead. They were dead when the State Department designated the MEK as a foreign terrorist organization and they have been dead all the years since and they won't get any less dead when the State Department removes the MEK from its FTO list. The MEK is the organization that once allied with Saddam Hussein; that historical fact hasn't changed, although its political significance has. No — what has changed is the MEK's political power and influence and the attitude of our government towards it.
More generally, White says, the MEK's delisting shows how arbitrary the contours of the War on Terror are:
The scope of the War on Terror — the very identity of the Terror we fight — is a subjective matter in the discretion of the government. The compelling need the government cites to do whatever it wants is itself defined by the government.
The definition of the enemy then determines not only who can be charged with violating the ban on material support but who can be subject to warrantless surveillance, indefinite detention, and summary execution by drone. But don't worry: The Obama administration is providing all the process it believes is due.