The Haqqani Network Not (Yet) a Designated Foreign Terrorist Organization: Ridiculous, I Agree, But How Much Does It Matter?

I had not realized till today that the State Department has not yet gotten around to designated the Haqqani Network to be a Foreign Terrorist Organization (see the current list here).  Such a designation would bring to bear, among other things, immigration-related constraints as well as the applicability of 18 USC 2339B (forbidding any knowing provision of material support to such groups, period) and 18 USC 2339D (forbidding receipt of military-style training from such groups).  Senator Diane Feinstein is complaining about this today, and I don't blame her one bit. What's the relevant test?  I blogged about that here, with reference to whether State could designated Mexican drug-trafficking organizations.  Suffice to say that the standard is met quite easily by the Haqqani Network, and has been for quite some time.  To be fair, the Treasury Department for its part has long since designated various individuals associated with the Haqqani Network for sanction under the IEEPA system, but though this carries significant sanctions-related consequences and sometimes can be used in ways that track 2339B, it does not quite cover the same territory, and in any event does nothing for Haqqani-related individuals not specifically so-designated. How much does this really matter?  We should not overstate the significance of this.  For the moment what matters most is having authority to use lethal force against Haqqani targets and the capacity to hold them in military detention at the DFIP if and when its members are captured.  I don't see any serious challenge to that authority for the time being, and based on what we can tell from the public record it may be that there are few if any instances of Haqqani personnel showing up in contexts where it might be harder to assert such powers and thus more important whether a plausible criminal charge could be brought.  But what if, for whatever reason, one really needed to prosecute a Haqqani member? Well, if the person could be linked to attacks, even in a very indirect but knowing way, one could probably mount an 18 USC 2339A count.  And let's not forget the military commission system: it's material support provision combines 18 USC 2339B and 2339A, in effect, and does not require a State Department designation; the fact that the Haqqani Network is engaged in hostilities against US forces should be enough.  As for the ultimate viability of material support charges in the commissions context, suffice to say that anyone charged under this heading for conduct post-dating the MCA's enactment will have a much weaker case than those charged for conduct pre-dating the express statutory embrace of this offense.