The Foreign Policy Essay: What's in a Name? Al Qaeda, ISIS, and Domestic Radicalization

Editor's Note: The war in Syria has attracted volunteers to fight from around the world, including from the United States. Although senior U.S. officials have warned of this threat, the legal foundation for stopping this flow is flawed. Using the case of Nicholas Teausant to illustrate his points, Brian Fishman, a counterterrorism research fellow at the New America Foundation, argues that America’s Foreign Terrorist Organization (FTO) list is inherently politicized and incomplete, and that a better legal framework is needed to address the growing problem of domestic support for terrorist groups abroad.  

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Just before midnight on March 16, 2014, federal agents pulled Nicholas Teausant off a bus in Blaine, Washington, headed for the Canadian border. Federal agents believe that Teausant, a 20-year-old Muslim convert from Lodi, California, intended to join the Islamic State of Iraq and al-Sham (ISIS), the jihadist group that recently captured Iraq’s second-largest city and is now marching on Baghdad. The federal complaint against Teausant portrays him as a gung-ho wannabe jihadi, but a far cry from the master terrorist image of al-Qaeda’s first generation. Nonetheless, Teausant’s aspirations, and in particular his desire to join ISIS, illustrate significant shifts in the jihadi movement that U.S. counterterrorism policy has yet to fully address. After being arrested in Washington, Teausant was repatriated to California and charged with attempting to provide material support or resources to a foreign terrorist organization, namely al-Qaeda in Iraq (AQI). The charge was predicated on AQI’s designation by the U.S. State Department as a Foreign Terrorist Organization (FTO) under section 219 of the Immigration and Naturalization Act. The State Department designated AQI in 2004 when Abu Mus’ab al-Zarqawi swore allegiance to Osama bin Laden and al-Qaeda. The designation of AQI has since been amended numerous times, including to register new aliases for the group, a necessary process in the face of jihadis’ evolving nomenclature. In 2012, the designation of AQI was amended to include two new aliases: the “Islamic State of Iraq (ISI)” and “Jabhat al-Nusrah (JN).” On the surface, this is perfectly reasonable, albeit significantly belated in the case of the “Islamic State of Iraq” appellation. AQI began calling itself the ISI in October 2006 in an effort to “Iraqify” its operations and lay the theological groundwork (under peculiar, even for jihadis, interpretations of Islamic law) for governing territory it controlled in Iraq. The ISI added “al-Sham” (the Arabic name for Greater Syria) to recognize its growing influence in Syria and has been referred to as ISIS since 2012. Jabhat al-Nusrah also emerged as an outgrowth of the ISI in 2012, and operates almost exclusively in Syria. On May 14, 2014, the State Department updated its designations to make the Islamic State of Iraq and Syria nomenclature primary over “al-Qaeda in Iraq” and designated Jabhat al-Nusrah as a separate organization. Both moves are overdue and welcome. Despite the shared lineage, it is inappropriate to consider ISIS a part of al-Qaeda and even more problematic to think of ISIS and JN as elements of the same organization, as the State Department’s designation of AQI indicated until recently. Although both ISIS and Jabhat al-Nusrah undoubtedly did evolve out of al-Qaeda in Iraq and the ISI, ISIS now openly rejects al-Qaeda’s authority and conducts open warfare against Jabhat al-Nusrah, which has the blessing of the al-Qaeda leadership. Indeed, al-Qaeda central now claims that “ISIS is not a branch of al-Qaeda.” ISIS, which is brutal and ideologically extreme even by jihadi standards, considers JN collaborators with secular militants in Syria and, by extension, the United States. The wider jihadi world, and especially the herd of digital “jihaderati,” is bitterly divided over ISIS’s split with al-Qaeda. Bottom line: the unique designation of “Jabhat al-Nusrah” makes sense and “Islamic State of Iraq” should not be considered an alias for al-Qaeda in Iraq. It may seem arcane to distinguish between these groups, but Nicholas Teausant understood these distinctions, telling an undercover law enforcement agent that he wanted to join ISIS rather than “al-Qaeda” because, “it didn’t make a whole lot of sense to me for fighting for a group that’s getting paid by the people they’re trying to fight” (Teausant evidently believed that al-Qaeda was receiving aid from the West). In the corkscrew world of counterterrorism, prior to the mid-May changes to the ISIS and Jabhat al-Nusrah designations, the United States was charging Teausant with attempting to support an affiliate of an organization that he was explicitly trying NOT to support. If the facts laid out in Teausant’s charging documents are accurate then his behavior is unacceptable and should be prosecutable. Although there is no public evidence Teausant intended to return to the United States after joining ISIS, he did fantasize about conducting terrorist attacks domestically and he intended to join an organization that poses a direct threat to U.S. interests abroad. The problem is predicating that prosecution on the State Department’s Foreign Terrorist Organization list, which contained inaccuracies as of May 13, 2014, and, more systemically, is an inherently political document. Indeed, the flexibility for imprecision and selective inaccuracy is a feature, not a bug, of political designations like the FTO list. State Department terrorism designations are fundamentally political choices. They consider the disposition of a militant group, but also a range of diplomatic and protocol issues. For example, the United States has not designated Ahrar al-Sham, a Salafi group whose former military leader was Ayman al-Zawahiri’s designated representative in Syria, as a terrorist group, in large measure because it would disrupt efforts to unify the Syrian opposition. Likewise, the delisting of the Mujahidin-e Khalq (MEK) from the FTO list was largely the product of broader dynamics in U.S.-Iranian relations and American domestic politics. This is reasonable—the State Department designating or delisting a terrorist group is a political act intended to produce political outcomes, and the State Department should structure those decisions to further American interests around the world. It is precisely that political flexibility that makes the State Department’s designations an imperfect foundation on which to determine whether an American citizen should be charged with a crime. Numerous former U.S. government officials offered support and services to the MEK before it was delisted as an FTO. Many were paid to do so. By an objective standard, this behavior could be considered material support for a terrorist group and those individuals could have been prosecuted. None were. If Nicholas Teausant had endeavored to join Ahrar al-Sham, which is not designated as an FTO but has deep links to jihadi actors and al-Qaeda itself, would he have been less of a threat? What if he had a link to Abu Khalid al-Suri, Zawahiri’s (now deceased) representative in Syria? It did not actually make sense to prosecute Americans for supporting the MEK, as the group is not a contemporary threat to the United States, and there are good reasons to refrain from designating Ahrar al-Sham a Foreign Terrorist Organization. Nonetheless, the varying application of material support laws to supporters of State Department-listed terrorist organizations, and the politically charged decisions not to designate certain groups, gives the appearance of capriciousness in counterterrorism prosecutions. A well-conceived counterterrorism strategy—especially in a domestic context—should enhance the authority of the state and offer a clear distinction between the lawlessness and barbarism of a terrorist’s indiscriminate violence and the structured, reliable, and fair application of the law. Predicating material support charges upon the inherently political designations of the State Department runs counter to that goal. It is even worse when the State Department’s designations themselves can be plausibly challenged on factual grounds. This discussion suggests several conclusions: First, the State Department’s independent designation of Jabhat al-Nusrah and decision to refocus the AQI designation on ISIS was belated but positive. Designations will never fully keep up with the shifting political sands of jihadi organizations, but the split between ISIS and al-Qaeda is now well documented and is fundamentally reshaping the jihadi landscape. As ISIS marches on Baghdad, still in violent opposition to al-Qaeda, it violates a basic logical test that official U.S. policy should formally consider the group “al-Qaeda in Iraq.” Second, policymakers should assess whether there is a better legal framework on which to base material support charges than predicating them on the State Department’s FTO list. One option would be to base charges on terrorist designations made under Executive Order 13224, which allows for the seizure of assets associated with specified individuals and organizations. But EO 13224 is also a political document. Predicating prosecutions on an Executive Branch designation without judicial oversight simply shifts the problem. A better solution would empower a transparent judicial process to determine which groups would make an individual eligible for a material support charge. Justice should be blind and apolitical. By design, the FTO list and EO 13224 are, first and foremost, political tools of foreign policy. Third, al-Qaeda has lost its preeminent place in the jihadi community, and U.S. policy should recognize that reality. It is not just ISIS’s march on Baghdad; the group is increasingly the flame to which would-be Western terrorists flock. Nonetheless, this shift means the relative balance of threat from jihadis moves toward U.S. interests abroad rather than against the U.S. homeland, which itself is an ongoing trend since 9/11. But if al-Qaeda’s unique focus on attacking the U.S. homeland is no longer the driving force motivating global jihadism, that does not mean the fight against jihadis is over. Nicholas Teausant is both a traditional wannabe terrorist, of whom there have been many since 9/11, and representative of something quite different: the post-al-Qaeda jihadi threat.

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Brian Fishman is a counterterrorism research fellow at the New America Foundation. He is the former director of research at the Combating Terrorism Center at West Point.