There has rightly been a lot of uproar over the Trump administration’s lack of response to recent reporting that members of the Russian military intelligence agency known as the G.R.U. have been paying bounties to the Taliban for the killing of U.S. troops. Axios’ Jonathan Swan’s interview with President Donald Trump puts an extra exclamation point on those concerns. A recent piece on Just Security, Joshua Geltzer, Ryan Goodman, and Danielle Schulkin laid out a compelling account of what a functional response might have looked like. Additional reporting makes it clear with even greater certainty that Russia has also been providing weapons and night-vision equipment to the Taliban for several years.
One option missing from analyses of potential responses to both of these Russian operations is the possibility of an indictment against the G.R.U. officers involved for providing material support to terrorists under 18 U.S.C. 2339A. I have previously argued on Just Security against the practice of indicting foreign State actors for State actions in the context of cyber operations. I maintain that belief, but here I lay out a potential case for indictment in this context, as an exercise in showing what a government response might look like if the Justice Department wants to act consistently across all domains. While the evidence of Russia arming the Taliban is currently stronger than the information about the bounty program, the bounty program would ultimately provide a better case for indictment.
Elements of Providing Material Support to Terrorists (18 U.S.C. 2339A)
The relevant statute in this case would be 18 U.S.C. 2339A, which covers anyone who knowingly provides material support or resources (to include currency), knowing that they will be used in carrying out a violation of several other statutes (including but not limited to: attempting to damage by means of explosion a vehicle owned by the U.S.; attempting to kill any employee of the U.S. including any member of the uniformed services; willfully damaging or committing any depredation against any property of the U.S.).
Reporting has suggested that as part of the bounty program the G.R.U. may have paid the Taliban for an April 2019 car bombing in Afghanistan that killed three Marines in an armored vehicle. If true and provable in court, this would plainly seem within the bounds of the material support statute. It is certainly possible that whatever strong intelligence reporting the government has would not meet the evidentiary threshold to bring a case, but if it did the analysis would hold. It might seem odd to indict Russian military intelligence officers for their conduct in an armed conflict, but there’s no reason why material support for such terrorist acts should be excluded. What’s more, the Justice Department has already indicted other G.R.U. officers for their involvement in cyber operations. Why not indict the G.R.U. officers involved in the Afghan incidents for similarly violating U.S. statutes, even if overseas?
As an aside, an indictment would not be possible under 18 U.S.C. 2339B, which covers material support to designated foreign terrorist organizations, because the Afghan Taliban are not on the State Department’s list of designated foreign terrorist organizations. However, if investigation reveals any involvement of Pakistani Taliban elements (Tehrik-e Taliban Pakistan), who are on the State Department’s list (or other groups on that list), indictment under 2339B could be considered.
An indictment may make less sense in the case of Russia providing arms to the Taliban, even if the evidence appears stronger that the Kremlin gave this support. It may be difficult to prove in a trial setting that the Russians gave such support knowing it would be used to commit acts against the United States. The Russians could claim the support was, for example, to help the Taliban fight ISIS or to leverage the Taliban’s hand viz the Afghan authorities. What’s more, the United States probably does not want a norm of indicting state officials for arming non-state actors, given the various examples of the U.S. behaving the same way. That’s why the bounty operation is so exceptional, and the United States should have less hesitation in prosecuting it.
Extraterritorial Application of 18 U.S.C. 2339A
While 18 U.S.C. 2339A does not explicitly state that it can be applied extraterritorially (as 2339B does), there is a strong case that it can be. The statute originally contained a jurisdictional limitation to persons “within the United States,” but that provision was deleted as part of the USA Patriot Act, implying a congressional intent to eliminate that requirement. As has been proposed in an unofficial Justice Department bulletin, there is also an argument that extraterritorial application of 18 U.S.C. 2339A would be acceptable under international law, as necessary to protect U.S. citizens. This does not represent the official view of the Justice Department, but the fact that a Senior Appellate Counsel for the National Security Division outlined the argument in writing in the US Attorneys’ Bulletin illustrates that the argument has substantial level of merit. The Congressional Research Service has also noted, “Section 2339A’s application abroad extends at least as far as the extraterritorial application of its predicate offenses.” An analysis of the predicate offenses shows their extraterritorial application is unsettled. For example, 18 U.S.C. 1114 (attempting to kill any employee of the U.S. including any member of the uniformed services) was found to apply extraterritorially by the U.S. District Court for the District of Columbia in 2015, but the Second Circuit reached the opposite conclusion in early 2020. In the same 2015 case, the federal district court found 18 U.S.C. 844(f) (attempting to damage by means of explosion a vehicle owned by the U.S.) to apply extraterritorially, as well. Other federal district courts in recent cases have agreed on the extraterritorial reach of sections 1114 and 844(f).
In the context of G.R.U. cyber operations tied to the 2016 election, the case for indictment may have been stronger because the effects took place in the United States, providing a clear case for jurisdiction. However, given the case for extraterritorial application of 18 U.S.C. 2339A laid out in the unofficial Justice Department bulletin and case law at the district court level, it seems reasonable that the Justice Department could pursue an indictment in this case.
Conclusion: An Indictment of G.R.U. Officers Could Be Useful Symbolic Action, But Not Escalatory
The risks and rewards of an indictment in this case are similar to the context of State actor indictments for cyber operations. On the one hand, indicting individual government employees for State actions may seem unnatural in an environment that seems to fall more naturally under international law and practice governing State-on-State conflict. On the other hand, it allows a government to publicize a “strong” response when options are limited, while actually using a fairly benign action that probably will not be overly escalatory.
Generally, indictment in these contexts is not worth the dedication of resources and the revelation of sources and methods when compared to “naming and shaming” via a press release, but if the government has deemed it appropriate in the cyber context, it should at least be considered as an option here. If the statements of former Trump administration officials are any indication, it seems unlikely that any response to Russian aggression, including an indictment like this, will take place. However, further evidence gathering by career civil servants may set up the possibility of an indictment for these acts in the future. Even news that the administration was weighing this response option might convey a level of seriousness and send the right message.
Image: In this picture taken on September 26, 2008, Fighters with Afghanistan’s Taliban militia stand on a hillside at Maydan Shahr in Wardak province, west of Kabul. Photo from STR/AFP via Getty Images