by Kay Guinane
Nineteen years ago today – Sept. 23, 2001- President George W. Bush signed Executive Order 13224, an emergency declaration responding to the 9/11 attacks that relied on sanctions authorities in the International Emergency Economic Powers Act (IEEPA). The EO targeted al Qaeda and its supporters, creating a list of Specially Designated Global Terrorists, freezing their assets and barring transactions with them. This broad exercise of power raised numerous issues about what is Constitutional and what is effective counterterrorism strategy. But one provision stands out for its sheer indifference to the suffering of civilian populations in conflict zones where listed groups operate: cancellation of IEEPA’s humanitarian exemption, without explanation, a time limit or criteria to restore it. The result is that 19 years later this “emergency” measure is still in force.
How is this possible? IEEPA bars the President from blocking “donations of food, clothing and medicine, intended to be used to relieve human suffering,” unless the s/he determines that such donations would “seriously impair his ability to deal with any national emergency,” endanger U.S. armed forces or are in response to coercion. (See 50 U.S.C. §1702(b)(2))
Bush relied on these powers to include this language in EO 13224 cancelling the humanitarian exemption:
Sec. 4. I hereby determine that the making of donations of the type specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by United States persons to persons determined to be subject to this order would seriously impair my ability to deal with the national emergency declared in this order, and would endanger Armed Forces of the United States that are in a situation where imminent involvement in hostilities is clearly indicated by the circumstances, and hereby prohibit such donations as provided by section 1 of this order.
To make matters worse, this obscure legalese has been copied and pasted into every counterterrorism EO since EO 13224 was issued. This affects civilians in the worst humanitarian crises in the world, including Yemen, Syria, Somalia and the Sahel region in Africa.
This hurts civilians, not terrorists. The routine cancellation of the exemption has effectively repealed it, putting humanitarian assistance providers in the impossible position of finding ways to aid civilians without crossing a fuzzy legal line. The practical realities of operating in conflict zones where listed groups are present and gaining access to civilians in need can involve some form of transaction with a listed group – whether it is a road toll, registration to operate in a geographic area or other incidental contact. International humanitarian law has standards that address these situations, but by cancelling the humanitarian exemption in IEEPA, the U.S. has blocked use of those tried and proven methods.
Congress has never questioned or examined this situation. This failure of oversight has allowed the executive branch, including Presidents Bush, Obama and Trump, to continue this practice unchallenged.
It is time for that to change. Although EO 13224 has been updated once (EO 13886 Sept. 10, 2019), this issue was not addressed. With the 20-year anniversary of 9/11 coming next year, a national assessment of the effectiveness of the Global War on Terror is in order, and it should include this issue. Next year on Sept. 23, 2021 I hope I can say this problem has been fixed with a measure that is proportionate to actual security threats, time-limited and consistent with humanitarian principles.
A legislative fix could look like this (new text in red, deleted text stricken out):
- donations, by persons subject to the jurisdiction of the United states, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering, except to the extent that the President determines that such donations (A) would not reach civilian populations”, seriously impair his ability to deal with any national emergency declared under section 1701 of this title (B) are in response to coercion against the proposed recipient or donor, or (C) would endanger Armed Forces of the United States which are engaged in hostilities or are in a situation where imminent involvement in hostilities is clearly indicated by the circumstances. and ensures that (D) “such limits must be temporary and proportionate to the security threat. The President must report to the appropriate Congressional committees on the need for such action and what steps are being taken to reinstate the exception.”