Since 1997, U.S. law has empowered the secretary of state to designate specific groups as “foreign terrorist organizations,” bringing down on them—and those who support them—an imposing range of penalties and sanctions.

Such designations have come through a complex bureaucratic process. Several times in recent years, members of Congress have introduced legislation asking the secretary of state to designate the Muslim Brotherhood as a foreign terrorist organization, but those efforts have not made it as far as floor votes, and would not have been greeted with enthusiasm by the Obama administration in any case.

Now there are new efforts from the Trump administration, as well as the Congress, to take up the question of designating the Brotherhood anew.  President Donald Trump reportedly is considering an executive order to instruct the secretary of state (who has not even taken up his duties yet) to undertake the process; national security advisor Mike Flynn and secretary of state nominee Rex Tillerson have already suggested they are similarly inclined. In addition, recently-introduced bills by Senator Ted Cruz and Congressman Mario Diaz-Balart call on the secretary of state to report back to Congress within 60 days on the designation question. Members of Congress and key parts of the executive branch are being called upon to ask: Is there something called the Muslim Brotherhood that fits the definition in U.S. law of a foreign terrorist organization? And would designating it as such be an effective way of fighting terrorism in the United States and abroad?  

REVERSING THE BURDEN OF PROOF

Cruz’s bill is very brief and seems quite clear in its intent and most of its inclinations. It expresses the sense of Congress that the Muslim Brotherhood is a foreign terrorist organization and calls on the administration to agree or to prove otherwise. In that respect it reverses the typical burden of proof. According to established procedures, a variety of U.S. government agencies consider whether to apply the foreign terrorist organization designation and then allow Congress the opportunity to object. Under the bill, Congress would speak first and force the administration either to agree or, if it did not, to argue the Muslim Brotherhood’s case in public—something the Trump administration is unlikely to wish to do. While the bureaucratic agencies would still be involved, the process would be far more political in nature than past designations.

But for all its clarity on what should be done, the bill is completely silent on one question, and that silence is portentous, as it would lead to the most pernicious effects of the legislation: The bill starkly declares the Muslim Brotherhood to be a terrorist organization, but it does not define what the Brotherhood is.

Nor is a definition easy. There is no single thing called the Muslim Brotherhood, but instead a number of organizations, movements, parties, associations, and informal groups that take some inspiration, sometimes direct and sometimes remote, from the original movement founded in Egypt in 1928 and the core texts its founder produced. Brotherhood-inspired movements long ago concluded that their circumstances were so distinct that each would follow the path it saw as appropriate in its own society (a point made by Marc Lynch in a recent paper for Carnegie). And there are many organizations that have been formed with varying degrees of participation from Brotherhood members, but their ties to any Brotherhood organization are often informal and vary in scope. Nor is their use or espousal of violence, a key aspect of the terrorism designation, a given, even if one branch of the Muslim Brotherhood that has unarguably used violence in recent years is the Palestinian organization Hamas, which the United States declared to be a foreign terrorist organization in 1997.

But far beyond Hamas, there are legal political parties in Indonesia, Pakistan, Morocco, Tunisia, Jordan, Iraq, Kuwait, Yemen, and even Israel that have roots in Muslim Brotherhood organizations. Many of these parties have cooperated with the United States in various ways. In Kuwait, a Muslim Brotherhood-affiliated party has supported the country’s alliance with the United States; in Iraq, a Brotherhood-inspired party cooperated with the U.S. occupation of the country. Morocco and Tunisia have Brotherhood-type parties participating in cabinets that work with the United States closely—and that strenuously defend their decision to pursue their agendas through electoral politics. Libya’s Justice and Construction Party has supported the UN-sponsored unity government, also endorsed by the United States. There are rebel groups in Syria that Washington has supported that have Muslim Brotherhood origins as well. Which of these should now be considered foreign terrorist organizations?

In addition, there are U.S. allies, such as Turkey and the United Kingdom, that have received refugees belonging to the Muslim Brotherhood. Qatar hosts not only the forward headquarters of the U.S. Central Command but also some Muslim Brotherhood leaders, notably from Egypt. Particularly significant is the fact that leaders of Turkey’s ruling party, the AKP, to which many of the new Trump administration officials are close, have long considered their movement an ideological kin to the Brotherhood and have treated Brotherhood-affiliated parties accordingly for at least the past decade. Should these allies now be considered state sponsors of terrorism?

PUSHING EGYPT’S BROTHERHOOD OVER THE EDGE?

There remains the question of Egypt, whose President Abdel-Fattah al-Sisi has been pushing allies to designate the Muslim Brotherhood a terrorist organization since he overthrew his predecessor Mohammed Morsi—who hailed from the Brotherhood—in 2013. As we write, a struggle continues within the Egyptian Muslim Brotherhood over how to deal with its predicament, which includes inter alia the imprisonment of thousands of its members including nearly all of its senior leaders, the death of more than a thousand people during the forceful breakup of sit-ins that followed the 2013 coup, the confiscation of assets and businesses owned by its leaders, the dissolution of more than 500 affiliated non-governmental organizations, and the outlawing of the group’s political party and media organs. There is indeed a debate, particularly among younger members, about whether these circumstances call for abandoning the non-violent approach the group has taken since the early 1960s. The language coming from those associated with the Muslim Brotherhood has been steadily escalating for some time, and in recent weeks, some have pushed to abandon the leadership’s commitment to nonviolence. And there are reports that some of the small groups that have carried out attacks on Egyptian police stations and infrastructure may have young Brotherhood members among them.

What there is not, at least so far, is evidence that senior Muslim Brotherhood leaders have ordered or condoned such violence, or that the Brotherhood has carried out any of the major terrorist attacks that have wracked the country, such as the December 2016 church bombing in Cairo, the October 2015 downing of a Russian jet, and the many military-style assaults on Egyptian soldiers in the Sinai. Those attacks have been claimed by a group originally known as Ansar Beit al-Maqdis, which affiliated itself to the Islamic State and considers itself the Brotherhood’s ideological enemy (the United States declared it a foreign terrorist organization in 2014). Taking all of this into consideration, would it be wise to declare the Egyptian Muslim Brotherhood to be a terrorist organization, effectively forcing its leaders in that direction because all other political and legal avenues will be closed to them?

Thus the sweeping measure to declare the Brotherhood a foreign terrorist organization now being contemplated not only does not accord with the facts, but is also more likely to undermine than achieve its ostensible purpose and could result in collateral damage affecting other U.S. policy goals. The greatest damage might be in the realm of public diplomacy, as using a broad brush to paint all Muslim Brotherhood organizations as terrorists would be understood by many Muslims around the world as a declaration of war against non-violent political Islamists—and indeed against Islam itself.

The move could also have underappreciated domestic repercussions. Those pursuing the foreign terrorist organization designation have made clear that they regard major American Muslim organizations as Brotherhood-inspired. Several groups were named by the Department of Justice as unindicted co-conspirators in the criminal case launched against the Holy Land Foundation in Texas for allegedly supporting Hamas. It is clear that for some American Muslim leaders, and for some of their vociferous critics, the view that they are terrorist supporters hangs over them and their activities. Many American Muslims fear that the real targets of the effort to designate the Muslim Brotherhood are their communal organizations and that the step has as much or more to do with shutting down nettlesome domestic opposition as with protecting U.S. citizens from violence.