The United States is supporting, funding, and arming “terrorists.” Not through back channels, middlemen, Swiss bank accounts or CIA covert operations, but openly and publicly. The Kurdistan Workers’ Party (PKK) was designated as a foreign terrorist organization on October 8, 1997 by the U.S. Department of State after thirteen years of insurgency, including bombing attacks and kidnappings, against Turkish military personnel and citizens. Aside from its use of terrorist tactics, the PKK found itself on the wrong side of the strategically crucial alliance between the United States and Turkey. Now, however, the United States is actively supporting the PKK rebels in their fight against the Islamic State (IS). Additionally, the United States is arming the Kurdistan Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) to combat IS; these two political parties were classified as “Tier III” terrorist organizations for their role in the armed uprising against Saddam Hussein in the 1990s, although Senator John McCain introduced a Senate amendment last November to have these groups removed from the terror list.
For months now, news headlines have updated the world on the Islamic State’s terrifyingly swift march through Iraq, as militants captured the major cities of Tikrit and Mosul and approached Baghdad and Erbil, where the United States retains military bases. Thousands, most notably the Christians of Mosul and the Yazidis trapped on the Sinjar Mountains, have been slaughtered or forced to flee their homes by IS militants. The Iraqi army failed to stop the onslaught of the Islamic State, even after the Kurdish Peshmerga fighters joined forces with them. But now, IS’s conquests have temporarily stalled in Iraq, due largely to the guerrilla fighters of the PKK, who have allied with the Peshmerga, their long-time rivals, to take back the Mosul dam with the aid of U.S. air strikes. This is good news for the embattled Iraqis and for the United States, which has suffered a loss of international respect for failing to intervene in the civil war and protect persecuted religious minorities sooner. However, these new Kurdish allies may create a legal problem for the United States concerning its terrorism laws.
A Troubled History
The U.S. government has a history of arming controversial rebel groups, beginning with its global mission to prevent the spread of communist ideology in the aftermath of World War II and continuing in the late 20th and early 21st centuries with groups fighting against Islamic extremists and dictators. Major operations include those in Honduras, Chile, Nicaragua, Afghanistan, Libya, Syria, and now Iraq.
Some of the most infamous rebel groups to receive U.S. support were the Contras, groups of guerrilla fighters working to overthrow the communist Sandinista regime in Nicaragua. In 1981, the Reagan Administration began financing and arming the rebels. This policy became controversial, not only because of the entanglement in the Iran-Contra Affair, but also because the Contras allegedly engaged in serious and frequent human rights abuses, including attacking and murdering non-combatant civilians, according to Human Rights Watch. Unsurprisingly, the Contras were never listed as a terrorist organization by the United States, but under current U.S. law, the group likely warranted the designation; 18 U.S. Code § 2331 defines “international terrorism” as:
violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping, and occur primarily outside the territorial jurisdiction of the United States.
Around the same time, on the other side of the world, the United States was arming another group of rebel fighters—the mujahideen of Afghanistan. Beginning in 1979 and continuing through the 1980s until the collapse of the Soviet Union, mujahideen fighters received weapons and training from the CIA to push back Soviet forces and topple the communist government in Kabul. Unlike the U.S.-backed Contras, the mujahideen successfully drove out the Soviets, and liberated Afghanistan from communism. The ideology that succeeded this regime was even worse.
Dealing with the Consequences
From the U.S.-trained and -armed mujahideen sprung Al-Qaeda and the Taliban, responsible for the 9/11 attacks and deaths of more than 2,200 American soldiers and an estimated 20,000 Afghan civilians in the ground war in Afghanistan. A similarly dangerous and potentially more deadly situation is now unfolding with the Islamic State. Stalling in Iraq, IS has turned its attention to a renewed offensive in northern Syria, using U.S. Humvees captured from the faltering Iraqi army to transport militants and weapons across the border. Armed with American weapons, IS has increased its fighting capabilities and emboldened its fighters, which has added the brutal and tragic beheading of American journalist James Foley to its death toll.
While airstrikes in Iraq have been instrumental in the pushback against IS, President Obama has yet to authorize additional strikes in Syria; for now, America’s solution to the carnage wrought by IS is largely to fight terrorists with other terrorists. It goes without saying that IS must be stopped as quickly and effectively as possible. With an estimated 20,000 fighters in Iraq and Syria, the PKK are by far the most experienced and well-trained group to lead a counter-ground attack against IS in northern Iraq and Syria, especially with American air support. After three decades of insurgency with Turkey, PKK rebels are battle-tested and well organized, whereas the Peshmerga and other Kurdish fighters have far less experience and have proven unable to take IS head on. The PKK’s support of besieged minorities and civilians against IS has spurred a lobbying effort in the United States to have the group taken off the State Department’s terrorist organization list. Since a cease-fire agreement with Turkey in March of 2013, the PKK has largely aborted the use of terrorist tactics; however, the group has launched several attacks against Turkish security forces in recent weeks, which could undermine peace negotiations and the recent attempt to declassify it as a terrorist organization.
Fighting in the Grey
It is difficult to determine whether the Contras should have been designated as a terrorist group or whether the United States should have been more cautious about arming the Afghan mujahideen; even hindsight isn’t 20/20. Supporting the PKK may well turn out to be a brilliant strategic move if it leads to the destruction of IS. Nonetheless, in this moment, the PKK is a terrorist organization, and that may put the United States government in a legally grey area. 18 U.S. Code § 2339B states, “Whoever knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.”
This section of the law would seemingly prohibit the United States from supporting the PKK, but a later section of the same law states, “No person may be prosecuted under this section in connection with the term ‘personnel’, ‘training’, or ‘expert advice or assistance’ if the provision of that material support or resources to a foreign terrorist organization was approved by the Secretary of State with the concurrence of the Attorney General. The Secretary of State may not approve the provision of any material support that may be used to carry out terrorist activity.” This is the exception. As long as the “material support” provided by the United States is not used in a terrorist act, the U.S. government, with approval from both the Secretary of State and the Attorney General, can support foreign terrorist groups. Currently, the PKK is working to defeat IS; killing armed combatants is a legitimate act of war, not terrorism, so it seems that the United States is not acting illegally. However, there is a possibility that arms provided indirectly to the PKK through the Iraqi army and other Kurdish groups could eventually be turned against Turkish security forces and civilians, the latter of which would be an act of terror against a U.S. ally.
A Country Without a Moral Conscious?
What do these situations and potential scenarios mean for U.S. terrorism laws? The point is not whether the United States might entangle itself in grey areas of the laws concerning terrorism; it likely already has. The real question is, do these laws hold any weight? Do they have anything meaningful to contribute to the country’s foreign policy principles and decisions? The United States has chosen not to label groups as terrorist organizations if it is politically inconvenient or would get in the way of a greater policy objective; it provides funding and arms to rebel groups it cannot control, and who have often turned against the United States at a later date; most recently, it is using terrorists to fight other terrorists. If not illegal, this part of American history at least presents a moral predicament, one that we are actively dealing with in Afghanistan, Pakistan, Syria, and Iraq. Laws are fundamentally impositions of morality on society, but if the laws we write do not create a guiding moral framework, and instead allow us to do what is most convenient, expedient, or politically popular in the moment without serious regard to a higher set of common ethical principles, then where does a secular society based on the rule of law derive its morality from?
Last year, President Obama, now infamously, said that the use of chemical weapons in Syria constituted a moral red line that, once crossed, would result in severe consequences for the Assad regime. This ended up being an empty threat when proposed airstrikes against Syrian military targets failed to gain support on either side of the aisle in Congress. The decisions that need to be made regarding policy in Middle East are complicated, and they are rarely black or white. But that is the entire point of having a strong set of moral principles—you stick to them even when the choices are difficult or unpopular, or when cutting corners might be easier. The question is, what set of moral principles does the United States have, and do its leaders have the backbone to uphold them?
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