Sept. 23, 2009 was the eighth anniversary of Executive Order (EO) 13224, signed by President George W. Bush to declare a national emergency after the 9/11 attacks. The EO authorized the Department of Treasury (Treasury) to freeze all U.S. assets of 27 individuals and entities listed as “Specially Designated Global Terrorists” (SDGTs) and to list additional SDGTs. It also invoked a law that allows the President to bar transactions involving donations, food, clothing, and medicine and other articles “intended to be used to relieve human suffering,” when the President finds donations would “seriously impair his ability to deal with any national emergency,” are coerced or would endanger U.S. armed forces. This has denied critical aid to many in need. Now, eight years later, it is time to reassess this position and determine whether this bar on aid does the U.S. more harm than good.

The authority for EO 13224 comes from the International Emergency Economic Powers Act (IEEPA), based on the old TradingWith the Enemy Act. It was originally designed to impose embargoes on nation states. In the 1990s it was expanded to include terrorist organizations and those seeking to disrupt the Middle East peace process.

IEEPA’s powers, as implemented by the EO, have created unique problems when applied to the charitable sector. Listing a charity as a SDGT essentially shuts it down, since bank accounts are frozen and all files, equipment, and databases are seized and held by the government. Since EO 13224 was signed, Treasury has shut down nine U.S. charities. It has refused all requests for releasing the funds to legitimate charities for humanitarian aid programs abroad and even for relief to victims of Hurricane Katrina.


EO 13224 incorporates provisions of the Patriot Act that expanded powers under IEEPA. For example, it bars transactions with anyone “associated with” terrorists and allows assets to be frozen “pending investigation.” These unchecked powers have created fundamental fairness problems that have lead two federal courts to declare them unconstitutional as applied to charities. But the most significant problem is the power to bar humanitarian aid.


A large part of the problem with using EO 13224 and IEEPA to ensure charitable resources are not diverted to terrorist organizations is that, as an embargo law, IEEPA focuses only on transactions, not on end use or intentions.  As a result, the law prohibits any transaction with an SDGT or anyone “associated with” it, even if the transaction is for the purpose of delivering life-saving disaster relief or working to turn terrorists away from use of violence to address their grievances.


President Bush could have avoided this situation by allowing the humanitarian exemption in IEEPA to remain in force. Instead he found providing such aid threatens our safety. But what threat do humanitarian aid and the charities that deliver it pose to the American people? To our troops? Does this barrier fuel the antagonism toward the US that helps terrorist recruitment?  Does the entire concept of withholding aid violate human rights?


We now have eight years of experience and information to assess the current pros and cons of EO 13224 and consider what is appropriate for the long term. We know the following:

  1. Treasury’s broad brush accusations to the contrary, there is no proof that charities, especially US charities, are a significant source of terrorist support, either tangible or intangible.
  2. EO 13224 and Treasury’s implementation policies have created significant barriers to legitimate charitable, development, health, education, human rights and conflict resolution programs. The ultimate contradiction is illustrated by the facts of a case now pending before the Supreme Court: Holder v. Humanitarian Law Project. In that case a U.S. charity wants to provide human rights and non-violent conflict resolution training to two organizations listed as SDGTs. The US government has fought their efforts in the courts for years, without ever explaining how programs aimed at reducing violence present a danger to the US.
  3. In the 21st century world battlefields and combatants are not always clearly defined by boundaries and uniforms. The humanitarian imperative enshrined in the Geneva Conventions demands that we find a way to allow for care of civilians in conflict zones, whether or not there is an official “war” going on. EO 13224 and the embargo-based strategy do not fit this new reality.
  4. Humanitarian aid provided in conflict zones does not automatically “free up” resources for the local branch of a SDGT to spend on weapons and explosives. This unproven myth has found its way into judicial opinions and the Congressional record, without ever being subjected to evidence based analysis.  It should not guide our actions in the future without serious and honest scrutiny.
  5. In many ways, Treasury’s Office of Foreign Assets Control (OFAC) has bungled the application of IEEPA and EO 13224 when it comes to the charitable sector. For example, in the August 2009 ruling in KindHearts v.Treasurythe court called OFAC’s delays and lost documents “inexplicable.” But to be fair, OFAC is an anti-money laundering and anti-terrorist financing enforcement agency. Their sole goal is to disrupt the flow of financing to suspected organizations. They have no expertise in charitable program operation, especially in the international context. They get no bureaucratic plaudits for thinking about relieving human suffering or respecting human rights. In many ways, it is unfair to expect OFAC to handle the charitable context alone. Their expertise should be directed at interrupting the Taliban drug trade instead of blocking provision of food, shelter and other basic necessities.


There are other problems with EO 13224.  These include the lack of clear and concrete standards for listing as an SDGT, the overly broad and undefined ban on transactions with those “associated with” SDGTs and the power of Treasury to shut down a charity “pending investigation” with no deadline for when such an “investigation” must end.  On top of it all, there are no procedures for a listed charity to effectively find out why it has been listed or to challenge it.


The US charitable sector has responded to the challenges of countering terrorism by developing enhanced due diligence procedures to protect its assets from diversion to terrorists and generating new programs and research to help address the root causes of violent extremism. Because charities have strong ties to local communities overseas and are independent of government, they have the potential to be a major force in reducing factors that lead people to violence. Until the harmful constraints of EO 13224 are removed, however, this potential cannot be realized.