A version of this piece was posted on the National Security Institute’s blog, The SCIF.
Last week, the Commission on Security and Cooperation in Europe (Helsinki Commission) held a hearing on the HARM Act (H.R. 506 / S. 416), a bipartisan proposal to direct the Secretary of State to designate the Russian mercenary organization The Wagner Group as a Foreign Terrorist Organization (FTO). Wagner’s mercenaries have committed a plethora of atrocious acts in Ukraine and elsewhere, including massacres, rape, torture, kidnapping, sex trafficking, extrajudicial killings, political sabotage, and attempted assassinations—several of which are cited in the bill.
During the hearing, comments made by two senators indicated that the Senate may vote on its version of the bill as early as this week. Regardless of the substantive merits that an FTO designation might carry, however, directing the designation by statute is doomed to fail because of a basic principle of administrative law.
The process by which FTOs are designated is dictated by Section 219 of the Immigration and Nationality Act (INA) (8 U.S.C. §1189). Designated entities must be foreign organizations that either engage in or have the capability and intent to engage in terrorist activity that threatens U.S. nationals or U.S. national security. The text of the statute, on its face, leaves little doubt that the Wagner Group’s activities qualify it to be an FTO.
It is also generally agreed that the most important result of designating Wagner as an FTO at this stage (after it has already been sanctioned multiple times under Executive Orders pursuant to the International Emergency Economic Powers Act) is that it would make Material Support for Terrorism (MST) charges available to prosecutors to use against anyone who joins, donates money to, or provides equipment to the group. 18 U.S.C. § 2339B. It also would restrict travel of Wagner Group members and, theoretically, provide further avenues to sanction the group and those connected to it.
Critically, however, the INA provides the Secretary of State with discretion to decide which groups to designate as FTOs. And it is a well-settled principle of law that if an agency fails to exercise its discretion, that itself is an abuse of discretion and cause for courts to overturn the agency’s actions. Here, that means the FTO designation itself.
Although it’s possible a court might interpret the HARM Act’s passage to mean that the Secretary lacks exercisable discretion, that seems unlikely given that the legislation would direct him to designate Wagner “in accordance with” the very INA framework that provides him discretion. Because the resulting designation would be made under a statute granting discretion, in circumstances that necessarily undermine any agency representation that discretion was actually exercised, it is far more likely that a court will overturn the designation. As Judge Posner has cautioned, “Failure to exercise discretion is not exercising discretion; it is making a legal mistake.” The designation wiped from the books, any government actions taken pursuant to it, including MST prosecutions, would also fail.
Even if the designation were to survive the administrative law scrutiny, the legislation also acts as something of a bill of attainder against Wagner, which also may jeopardize the MST prosecutions brought under it. The specific legislation also fails to account for other Russian PMCs that have or are developing similar capabilities.
Thankfully, the HARM Act’s principal aims—increasing penalties against the Wagner Group and those who join or support it—can be achieved through other means. Making MST charges available to prosecutors and excluding Wagner associates from the U.S. can both be accomplished through other legislation, such as the proposed Significant Transnational Criminal Organization Designation Act (H.R. 334) (although elements of that bill’s definitions and procedures merit further scrutiny). Also, especially given that the Wagner Group has tried (so far unsuccessfully) to recruit Americans to join its ranks, the Neutrality Act can and should be amended to apply to conduct commencing outside the United States and carry harsher consequences, to reflect the seriousness of joining a group like Wagner in a fight against a country supported by the U.S.
If the Senate is serious about wanting to see Wagner designated as an FTO, its attention is better directed to getting a Coordinator for Counterterrorism confirmed for the State Department. Elizabeth Richard, a career Foreign Service Officer, was nominated for that position in November 2021; she is still awaiting a vote. Whether she is confirmed or not, the Department needs a Senate-confirmed CT Coordinator to be able to make FTO designations through proper channels and avoid the litigation failures that the HARM Act invites. That decision, too, rests with the Senate, and it should be prioritized ahead of forcing an FTO designation that will likely be dead-on-arrival in the courts.
Organizations like the Wagner Group present many challenges to current legal and policy frameworks. They’re not just criminals, but rather inflict widespread havoc—even terror—wherever they operate. But if Congress is to leverage its legislative powers to hold them to account, there are more effective ways to do so than what the HARM Act proposes, which most likely would lead to the group being designated as an FTO just long enough for a court to strike it down.
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