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- [00:01]
Lawfare Host
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- [00:34]
Adam Grant
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- [01:44]
Caroline Cornett
I'm Caroline Cornett, intern at LawFair, with an episode from the Lawfare archive for June 8, 2025. Last week, the Trump administration lifted a number of sanctions against you Syria, taking a step to fulfill promises President Donald Trump made during his trip to the Persian Gulf. Earlier in the month, Trump stated he was lifting sanctions on Syria in order to give them a chance at greatness. While the sanctions were imposed to punish former Syrian President Bashar Al Assad's regime, which perpetuated violence against civilians, the sanctions have affected eight agencies ability to deliver humanitarian assistance and had devastating consequences for serious severity civilians. For today's archive episode, I selected an episode from March 14, 2023 in which Scott R. Anderson sat down with leading sanctions experts Rachel Alpert and Alex Srdin to discuss the Biden administration and the United Nations Security Council's installation of broad carve outs for humanitarian assistance into existing sanctions regimes. They talked about long standing issues surrounding humanitarian aid, what these changes may mean in places like Afghanistan, and more.
- [02:54]
Scott R. Anderson
I'm Scott R. Andersen and this is the Lawfare Podcast for March 14, 2023. For years, the international community has wrestled with how to reconcile sanctions policies targeting terrorist groups and other malevolent actors with the need to provide humanitarian assistance in areas under those groups control. Late last year, both the Biden administration and the UN Security Council took major steps towards a new approach on this issue, installing broad carve outs for humanitarian assistance into existing sanctions regimes. To talk through these changes, I sat down with two leading sanctions experts. Rachel Alpert, a partner at the law firm Jenner and Block and former State Department attorney, and Alex Zurdin, the founder and principal of Capital Peak Strategies and a former Treasury Department official, including at the US Embassy in Kabul, Afghanistan. We talked about the long standing issues surrounding humanitarian assistance, what these changes may mean in jurisdictions like Afghanistan and where more changes may yet be forthcoming. It's the Lawfare podcast for March 14, a new sanctions Approach for Humanitarian Assistance. So Alex, before we dig into this most recent set of events, I want you to kind of set the stage for us a little bit. What we're talking about today really is this inherent conundrum or policy tension that's been latent in U.S. and international sanctions policy for a really long time around the need to sanction bad actors or who we understand to be bad actors, and then the risk that those sanctions will make other very important good things more difficult to happen, in this case, particularly humanitarian assistance. Tell us a little bit about that tension and where it comes from in sanctions policy and the role it's kind of come to play, why it's become this problem that we saw the United nations, the Treasury Department feel the need to address in this, this action we're discussing.
- [04:45]
Alex Zurdin
This does go to some of the core issues that you address is that the purpose of sanctions is to prohibit or exclude individuals, entities and countries from the benefits of the global financial system. Yet there are times when those exemptions themselves and those preclusions themselves require exceptions for certain narrow use cases, particularly here on humanitarian issues, and to provide financial channels for those most in need to provide basic human needs in some of the worst affected conflict zones in countries around the world. So this has been attention for the better part of the past 20 years, hypercharged by the horrific events of September 11 and the response to creating a new architecture for anti money laundering and countering the financing of terrorism, of which economic sanctions have been a critical part. But it's not necessarily new. I mean, there have been embargoes, sanctions against jurisdictions such as Cuba, such as North Korea, for decades now where there have been grave humanitarian needs to support, but not the same policy toolkit to provide these exceptions for humanitarian relief.
- [06:01]
Scott R. Anderson
So Rachel, as Alex kind of previewed for us, this has Been a problem for decades to various degrees. And there's been particular case studies where it's really been put to the fore. Somalia was kind of the classic one for a long time, where that really was kind of the first one that really came to the public consciousness that flagged this. There's been more recently, Syria, perhaps even most recently, there's been concerns about Syria and earthquake context even before that. Just the broader sanctions atmosphere around Syria, Afghanistan. Tell us about some of the problems that practically folks on the ground, humanitarian organizations, nonprofits, have encountered in ways that before these latest actions, people tried to address underlying concerns, but may not have been satisfied with the results.
- [06:45]
Rachel Alpert
One of the first instances where there was a real kind of coalescence in the aid community to try to address the issues of operating in challenging environments where there are sanctioned actors during a time of crisis was Somalia around starting around 2008, but really gaining steam around 2010. Al Shabaab, a foreign terrorist organization and specially designated global terrorist that was also eventually designated or sanctioned by the United Nations Security Council, controlled a large portion of area in Somalia that was experiencing terrible famine. And foreign aid actors were on the ground providing really much needed humanitarian assistance, but were concerned because in order to do so, they needed to interact and engage with local authorities, meaning Al Shabaab, in certain circumstances. And they were concerned about getting prosecuted for doing that if they had to, say, pay a local fee or a local tax for operating in an area or moving from one area to the next. And so that was a point at which there was significant engagement with the Treasury Department, attempts to engage with the Department of Justice, State Department and others to try to gain reassurance and clarity about what was authorized and what they could do. At the time, there were no general licenses issued, which was kind of the preferred approach, absent a legislative fixed, to provide reassurance. That inadvertent diversion, for lack of a better word, to terrorist organizations was authorized. But the Treasury Department's Office of Foreign Assets Control issued the best at the time they felt they could do, which were FAQs, and those were FAQs that said, essentially, if you're providing assistance in Al Shabaab controlled areas of Somalia, it won't be a priority to prosecute you if some of that aid is diverted to Al Shabaab. So not an ideal solution, but it was kind of the start of providing reassurance to the foreign assistance community operating in a country that, yes, you can carry on your work even when acting in an environment controlled by terrorist groups. And then we've seen that evolve since then. In 2014, OFAC issued guidance to the humanitarian community NGOs carrying out assistance in areas under terrorist control, essentially kind of memorializing that approach. And then, since then, and one kind of good example, prior to the Afghanistan situation, related to Yemen, when the Houthis were designated as a foreign terrorist organization and terrorist group, and there was a lot of concern there, because again, like happened in the Al Shabaab scenario in Somalia, Ansar Allah controlled wide portions of Yemen that were experiencing significant humanitarian crisis. The difference was at that time, OFAC was willing to issue general licenses authorizing NGO activities in country, US Government funded assistance, UN assistance. And so that was kind of an initial step in providing greater reassurance to the NGO community and those providing foreign assistance in these challenging environments.
- [10:13]
Scott R. Anderson
How effective did people really feel this, these sorts of partial solutions were? Was there still a big concern about humanitarian activities being chilled, or was there a sense that there was a solution in this, headed in this direction?
- [10:26]
Rachel Alpert
So those actions, they all helped. They provided some degree of reassurance, but it wasn't sufficient reassurance to get rid of all concerns. And there are a few issues that remained and some still remain to this day. One of them relates to specifically the material support statute, which provides essentially for prosecution potentially of any entity that provides material support to terrorist organizations. That's specific to when an organization is designated as a foreign terrorist organization, which is not always the case when you're dealing with sanctioned actors. But it is one specific issue that the Treasury Department can't really issue licenses to overcome. And so that will require a state statutory fix, even though in these sorts of situations there's always reassurance, provided that there is no intent to prosecute those in the foreign assistance community. Another relates to financial flows, because even with this kind of ratcheting up of reassurances, there's a lot of concern among financial institutions providing or allowing financial transactions in these sorts of environments that are subject to heavy sanctions, both because of sanctions concerns and also just broader risk related concerns. As a result, there are frequently, and we saw this in Yemen, we've seen this in Syria, significant challenges with just being able to get money into the country in order to then implement assistance programs.
- [11:58]
Scott R. Anderson
So let's jump ahead in time a little bit to the beginning of the Biden administration, because we saw the Treasury Department, your former employer, Alex, take some interesting steps in its first few months in office. In October 2021, we saw them produce a report that's kind of a review of sanctions activities. And this Question of humanitarian assistance featured pretty prominently in that. Can you tell us a little bit about what the US Government policy reckoning was around this issue set and what kind of teed it up to undertake both this review and to reach this conclusion that humanitarian assistance might pose something of an issue that warrants a careful approach by the U.S. government?
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Alex Zurdin
Absolutely. And so during her confirmation process, Secretary Yellen committed to undertaking a review of the Treasury Department's authorities with respect to sanctions. And she worked with Deputy Secretary ADEYEMO to throughout 2021 to undertake that that review. As you mentioned in 2021, in October, treasury released its policy review that very much addressed these humanitarian concerns in the context of a broader reckoning, a broader understanding and attempt to have a go forward approach and framework for the Treasury Department to manage sanctions. In particular, they noted that they quote, unquote, must address more systemically the challenges associated with conducting humanitarian activities through legitimate channels in heavily sanctioned jurisdictions, end quote. They also went on to understand that treasury should expand sanctions exceptions like what we were talking, we've been talking about with licensing and to support the flow of legitimate humanitarian goods and assistance and provide clear guidance at the outset when sanctions authorities are created. So treasury thought very deeply and very seriously and very deliberately about this. But as Rachel noted, not all terrorist groups are treated equally under the eyes of U.S. law. And so this review, while critically important and incredibly informative, was limited to OFAC sanctions and the sanctions authorities administered by the U.S. treasury Department, which critically do not apply to the foreign terrorist organization designations administered by the State Department and the material support that statutes that Rachel described.
- [14:22]
Scott R. Anderson
So I think that really takes us up to these actions that happened towards the end of this past year at the United nations. And then in the US Government at the United nations, we saw a pretty unprecedented resolution get enacted that installed kind of a categorical reform to across the different sanctions programs the United nations administered, which have accumulated over many years and cover a lot of different topics, a lot of different jurisdictions, countries, issues, targeted entities. Rachel, give us a little sense of the process that led to this resolution and where it actually landed. You know, how did it scope itself in approaching this issue and what ultimately was the carve out that they ended up settling on.
- [15:04]
Rachel Alpert
So I think this UN Security Council resolution, which ended up as UN Security Council resolution 2664, you know, it represented a real recognition by the United States, among others, that, and this is following the treasury review that Alex mentioned, that United States sanctions exemptions alone are not going to holistically address this issue because the International NGO community, those providing foreign assistance receive funds from multiple different actors in areas of the world under multiple different controls. And so tackling this issue from a domestic legal perspective is one element, but tackling it through the UN allows for a worldwide fix to this humanitarian exemption issue. And so this resulted and reflected the UN Security resolution reflected kind of a number of discussions and negotiations. While we have seen over the course of the past couple of years challenges in the UN and some querying whether the UN Security Council is still functioning at all, especially with Russia vetoing a lot of things and China also especially pushing back against restrictive measures. Humanitarian assistance has been one area where we have seen cooperation, and it's really been an area of light in an otherwise pretty pessimistic story. And so prior to this UN Security Council resolution, we saw authorization specific to Afghanistan humanitarian assistance. And then in the lead up to this unscur, there was some question about what the parameters would be and what was authorized, because a few of the holdout countries were concerned that allowing for this exemption kind of without end might give rise to challenges. And so where it landed was an authorization, a UN Security Council resolution adopted on December 9 of last year that applies where necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs. This means that for all UN sanctions program, to the extent an activity falls within the scope of that exemption, it should not be sanctioned under the program. Now, this exemption will be in effect with respect to the al Qaeda sanctions regime for two years, and that's time limited, and then it will be reviewed. And that addresses some of the concerns that we saw countries raise about the potentially indefinite nature of this exemption. But now, as a next step, it'll be necessary for countries to implement it through their domestic legislation. And so that's what we saw happen in the US later in December of 2022, some may say much more broadly even than the UN Security Council resolution requires. And so now it's a matter of other countries following suit and likewise implementing this exemption through their domestic laws. Now, there's still a requirement within the scope of this exemption that countries, or a request that countries use reasonable efforts to minimize benefits to sanctioned parties. And in general, this is not a carte blanche to just do whatever you want and provide benefit to sanctioned actors. It's really intended as a path forward for those providing the critical humanitarian assistance in some of the most challenging countries to be able to do so in a way that doesn't necessarily face them at risk of prosecution for just carrying out their mission.
- [18:45]
Scott R. Anderson
So, Alex, given that you've worked and seen the implementation of some of these sanctions restrictions and perhaps some of their unintended consequences on the ground in Afghanistan and elsewhere, let me turn to you to get a little bit of nitty gritty about how the Treasury Department and to some extent the United nations and other member states of the United nations are going to go about implementing this big exception. Because the language in the UN Security Council resolution is fairly broad, as Rachel just quoted. Obviously applying that specific facts requires a degree of interpretation and there's these countervailing pressures of saying, hey, don't go too far with this. We have to keep it within bounds. How do you anticipate the Treasury Department, I guess, in particular interpreting and applying this through the lens of its own license in particular cases, where do you think they are going to draw the line? How are they going to go about doing it? And how does that interplay with the United Nations? Are we likely to see UN sanctions committees that tend to administer different sanctions programs, defining what that means for their individual programs? Is this going to be an issue that's really left to member states or is that all still a big open question? We're going to have to wait to find out.
- [19:52]
Alex Zurdin
Yeah, these, these are all great questions. I'll kind of start from the US Dimension. I think it's going to be really dynamic and adaptive in that sanctions, for instance, we'll start with Afghanistan have been in place against the Taliban since 1999 and they've gone through a series at the UN level of changes and less so at the at the US Domestic level. But there was a major change in the the way that sanctions were managed at the UN and the sanctions under Security Council Resolution 1267 were bifurcated in 2012 between Security Council Resolutions 1988, 1989 and here the UN moved from a organizational designation of the Taliban to a list based system of individual members of the Taliban. The US at that time did not change the way that it conducts its designations of the Taliban. And so we've been in this system for the better part of over a decade where we have one unless system of individuals of the Taliban and we have a US Organizational based system under OFAC sanctions. And so that's just the foundation of where we're entering some of these really nitty gritty challenges of when the Taliban took power again In August of 2021, we had a sanctions regime in place both at the UN and domestically in the US that were designed for a previous era when the Taliban were not in power and they were an insurgent group. And so we saw the subsequent six plus months after the takeover that the US was attempting to reconfigure its sanctions and actually implement some of these sanctions exemptions, these humanitarian exemptions, which came through a series of seven general licenses as well as likely a number of specific licenses which are non public to enable humanitarian assistance for a variety of actors to bring money into the country and to support basic human needs in Afghanistan. So that's I think a critical case study because that also occurred as the administration, the Biden administration was articulating and developing its sanctions global policy for the Treasury Department and implementing and contemplating what a intervention that Rachel described would look at look like at the United Nations. And so on a go forward basis, I think there's going to be continued interplay between the US domestic regime and the un. I would commend my treasury colleagues and interagency former colleagues who worked tirelessly to both get these, the broader UN Security Council Resolution 2664 that Rachel mentioned over the finish line and then work methodically in the US to amend and update US regulations, US licenses to comport with those new expectations where we are in terms of UN programs on a program by program basis moving forward. I think it's still being figured out right now. I think there's going to be, as Rachel mentioned, there's sunset for the Al Qaeda sanctions program at the UN to determine this humanitarian exemption and to see if it's working. I think a lot of it rests now with the non governmental sector, civil society, intergovernmental organizations, financial institutions, to demonstrate compliance and adherence to the spirit as well as the letter of these new exemptions to ensure that they are not being abused by terrorist organizations and to show the benefits for basic human needs to those in most need in these war ravaged, conflict ravaged jurisdictions around the world.
- [23:33]
Lawfare Host
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- [25:33]
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- [26:57]
Adam Grant
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- [28:44]
Rachel Alpert
I think that's exactly right, Alex, and I think one thing that's interesting to look at is how the US has implemented this exemption, and it will be interesting to watch what it means for the rest of the world and whether others follow suit. So the US implementation, as I alluded to earlier, is somewhat broader than is necessarily kind of required by the clear terms of the UN exemption, although it's possible that it will be interpreted in this way if everybody adopts this sort of application. But the way it was implemented through the OFAC general licenses really reflected engagement between the Biden Administration, the Treasury Department, and the international NGO community, those who are on the ground carrying out these programs. If you look at, for example, in the NGO related authorization, there are six categories of broadly authorized activities under the general licenses. These range from activities to support humanitarian projects meeting basic human needs to democracy building, to education, non commercial development products, environmental and natural resource protection. And then, and perhaps most notably because this had not been in every similar general license in the past, activities to support disarmament, demobilization and reintegration programs, and peacebuilding. And so this reflects kind of a long standing involvement and advocacy by the international NGO community for so that OFAC would be aware of their needs on the ground and take steps to make them more possible. And so now it remains to be seen how other countries will similarly interpret and apply the authorizations within their own jurisdictions.
- [30:38]
Scott R. Anderson
Well, speaking of kind of the uniquely American approach to some of these, let's come back to the uniquely American problem that you both have alluded to already, which is the foreign terrorist organization regime, a separate statutory regime that doesn't have or really provide for the same sorts of licensing authorities that we see in the International Emergency Economic Powers act sanctions and certain other sanctions regimes. Rachel, how big a problem is the FTO regime for this effort to lift pressure on humanitarian organizations? You know, if the original concern was that, well, it's not really effective for treasury to say, we don't intend to prosecute on this, that doesn't bode well, it seems, for the ways they might be able to deal with the FTO regime absent legislative effects. So is a legislative fix really the next step here? And does it look like that's something that's actually on the horizon?
- [31:32]
Rachel Alpert
I mean, to fully address the material support issues, a legislative fix is necessary. I think the question comes down to how much of a showstopper are those issues really? And that one is still open for discussion. And I think we're waiting to see see in practice whether these broad general licenses that were issued at the end of December in 2022 provide maybe sufficient reassurance, in conjunction with the statements that the US Government has made in support of these humanitarian assistance efforts everywhere, to allow the NGOs to carry out their work maybe with less degree of fear than has existed in the past. Because even though there is this kind of gap between what the Treasury Department can authorize and what legislation allows, there is still prosecutorial discretion. And the more the US Government can provide reassurances that certain activities are authorized and desired, I think the less of a concern in practice there will be for the international NGO community and those carrying out assistance, even in environments where fta. That said, it does not get rid of the concern, and I do think that there remains a need and there remain efforts to address this issue through a legislative fix. And I think that is one of, if not the next step in this effort.
- [33:09]
Alex Zurdin
I totally agree with what Rachel said, and I think there's also another dimension of it that we haven't talked about in that FTO is a very serious designation. The limited number of FTO designations, I think, embody how both administratively difficult as well as politically strong, the signal it sends and the impacts, both legally and politically and economically it has. And so I think, as we've seen over the past number of years, I think the tool should be used incredibly Judiciously. And whenever we hear calls for the use of the FTO designation, I think it should be very seriously considered. And I know that our former colleagues in government take that charge incredibly, incredibly seriously. But I think also ensuring that the, the reckless expansion or the less than wise expansion of FTO designations doesn't create more policy problems than it's intended to solve. And so I think that's an important way not to expand the aperture unnecessarily or too reactively to scratch a separate political consideration or respond to some issue in the moment.
- [34:18]
Rachel Alpert
Yeah, and one thing I would add specifically with respect to the material support statute is there's this interesting Exception, and that's at 2339 BJ of the statute, which says that no person may be prosecuted in connection with certain terms. And in this case it says personnel training, expert advice or assistance, essentially if it has been approved by the Secretary of State. And what's interesting is I've never seen this exception used. And so one kind of interim step might be if the State Department were to take a closer look at this exception and see if there's some way that it might be applied to allow for assistance to prevent prosecutions and to do so explicitly under the statute in certain circumstances that, you know, might fall within the scope of this exception.
- [35:17]
Scott R. Anderson
So we talked about this FTO regime as a barrier, but the United States has national security laws and policies that cover all sorts of activities overseas that aren't sanctions, always sanctions of the way we conceive of them, conventional sanctions, but similar sorts of regulatory tools that it uses. Do any of these other ones pose obstacles in the same way as sanctions that need a similar sort of address or may warrant similar reconsideration? Rachel, let me start with you.
- [35:48]
Rachel Alpert
That's a great question, Scott. And I think one area where we're seeing, and perhaps this is the next area of focus to address barriers to humanitarian assistance on the ground is export controls. So, you know, we've been talking about the efforts over the past decade or two to address the sanctions barriers to humanitarian assistance. There hasn't been that same sort of kind of organized, concerted review of export controls and how they impact the actual physical delivery of assistance on the ground. But right now we're really experiencing a situation that highlights this issue and that's the Syria earthquake response. So Syria is one of the, you know, kind of very small number of countries that's subject to a territory wide embargo. There are significant export controls that apply to Syria, essentially a ban on anything other than food and medicine going into the country. And then in order for items to get in, most things will just be denied outright if somebody applies for an export license. But there are a few things for support for the Syrian people that on a case by case basis, the Commerce Department's Bureau of Industry and Security will approve, will review and approve for export. So what this means in practice is that organizations operating in Syria need to apply to bring really anything into the country. And so for earthquake response, anybody who wanted to go in and deliver assistance, you know, bring in construction equipment to move buildings or rubble off of people or medical devices to provide medical response, had to first apply for an export license to the Commerce Department. Now, the US Export control regime only covers items that are subject to US Export control jurisdiction. But in the Syria context, the US Exercises broad jurisdiction because they say that anything with just 10% US origin content by value is subject to export controls. So what that means in practice is that pretty much for anything an organization might want to bring into the country, they need to apply for a U.S. export license. The solution to that would be to take an approach similar to what the Treasury Department has done and pre authorize certain specific categories of items that are identified in advance as critical to humanitarian response in a time of crisis. So it's something kind of worth focusing on. There are a number of steps that would be necessary in order for the Commerce Department to do that, but definitely an area of need and something that should be addressed moving forward if we really want to continue to facilitate the ability of aid organizations to deliver humanitarian assistance.
- [38:44]
Scott R. Anderson
So that's actually a good transition to the next question I want to ask, which gets at a similar issue of other areas that might warrant some additional consideration or thought, but perhaps as opposed to barriers to humanitarian assistance, I kind of want to ask about other sorts of activities and how they fit under the sanctions regime. Alex, you spent a good part of your career and are still very engaged on issues relying Afghanistan, where I know you worked for a period of time with the government, the United States government, I should say, and that Afghanistan is a really interesting case study because we have seen the Treasury Department not just implement licenses along the lines of what is advocated for by the UN Security Council Resolution 2664 now, or even the slightly broader version implemented by the Treasury Department, but much broader general licenses, essentially signaling, hey, really, anything short of a transfer to Haqqani network, Al Qaeda, or another designated specially designated global terrorist regime, or an entity directly or majority controlled by them, I think is the exception is Permissible, much sort of broader sort of exception as part of a policy effort to say, hey, sanctions really aren't a barrier for Afghanistan. What does that tell us about some of the other de risking and chilling effects that sanctions can have that might still be problematic to ensuring the delivery of basic human needs and other basic functioning of states or of individuals in heavily sanctioned jurisdictions? And does it point towards other areas? We may see additional action in this direction if we really want to start addressing the way that sanctions have these negative consequences for sometimes innocent parties overseas.
- [40:31]
Alex Zurdin
So I'll start with the framing of what happened in Afghanistan because I think that's helpful to walk us through where we are today and start peeling away at these questions. So when Kabul fell again In August of 2021, OFAC mobilized to put forward its first general license in September. So a little over a month after the fall of Kabul, this was narrowly based, but it was impressive for the benefit of the US Government to conduct humanitarian activities in Afghanistan. And the the license in itself was pretty remarkable because the sanctions regime applying to the Taliban, to the Hakai Network, to Al Qaeda, for again for OFAC sanctions purposes is under the counterterrorism program. And so counterterrorism sanctions are intended to be the most strict and stringent because you don't want to create carve outs, unlike with the exception of sanctions programs in places like Iran, comprehensively sanctioned jurisdictions, Cuba elsewhere, where you do create facial carve outs for humanitarian assistance, for medical devices, for other agriculture and other other humanitarian related purposes. And so this was pretty remarkable because there had not been a change in the UN Security Council regime and the sanctions against the Taliban there or Hawkini network there. So we start to see the US really taking forward leaning action pretty early on. And through a series of other general licenses, we start to see this approach to Afghanistan in this new context with the Taliban in control, with the Haqqani network operating, and as we know now, also Al Qaeda remaining present in the jurisdiction, these things also happened. These general licenses occurred before the sanctions policy review in October that Treasury released and then obviously occurred before the UN Security Council resolution 2615 for the Afghanistan specific carve outs. So we saw this start to develop and it culminated in February of 2022 with General License 20, which is what Scott, you were really, I think, hitting, hitting the nail on the head about which is authorizing transactions involving Afghanistan or governing institutions in Afghanistan, not just related to basic human needs, but more broadly for economic activity in the country and actually allows for financial transfers to the Taliban, Haqqani network or any entity that they own or control, because with a, with a limited purpose, but it still allows it for the purpose of affecting payments of taxes, fees or other import duties, purchase of receipts or permits, licenses, public utilities and other things not involving luxury items or services. And so that's a long way of saying that the treasury attempted, in my view, to really pull out a lot, if not all of these stops to prevent it, as a matter of US Law from moving money into Afghanistan. And this is where you picked up on that. It then no longer becomes a legal question about US Law, but an operational question for financial institutions to weigh their own risk appetite, their own risk tolerance for conducting financial services into Afghanistan while having this very powerful license, having this licensing regime in these changes to US Policy existing. And so that's the challenge now, and that's the environment that we're in, particularly in Afghanistan a year later from the last general license, is that there, there does not appear to be legal prohibitions or legal restraints, but these are operational considerations by financial institutions who choose not to engage in correspondent banking with Afghanistan because of operational risk, because of other concerns about liability or lack of profitability or other reasons that inform their compliance posture with respect to Afghanistan. And so I think to answer your last question, is Afghanistan special? Is this a unique instance because of historical circumstances, because of these legacy sanctions program that were in place against actors operating and now controlling Afghanistan, or is there something instructive from the lessons learned in Afghanistan that can be or will be applied elsewhere? I think it's a mixed scorecard. So we're seeing some of it in the December 2022 updates and carve outs that treasury implemented. But I think it's really going to hinge on which programs we're talking about and what the policy imperatives are for the US Government to operate in certain jurisdictions or areas controlled by certain designated terrorist groups.
- [45:03]
Rachel Alpert
I completely agree, Alex. And I think one additional thing that these broad exemptions allowed was a focus on different issues in the country. So removing sanctions as a barrier, removing sanctions from the equation, it really shined a light on the things that the Taliban was doing in Afghanistan that were themselves creating the barriers to assistance. So preventing assistance for women, preventing women, aid providers, different lacks of financial controls, all those things that are self provided, self created, that are not a result of sanctions. And so it's a policy move unto itself to kind of move the conversation because it shifts the focus away from the U.S. impose sanctions and instead onto kind of the local difficulties in the operational environment.
- [46:00]
Scott R. Anderson
So we are almost out of time, but I want to wrap up with one last question for both of you, which is that, as you all have mentioned and made clear, this is a little bit of a work in progress, at least in the al Qaeda context. At the international level, it's a temporary exception. We're going to see how it's implemented. There's a lot of questions about implementation and then some queries about how ultimately effective, at least in light of the FTO regime, light of export controls, other barriers. This will be at, you know, facilitating levels of humanitarian assistance much higher, closer to what we think is necessary in these situations that we can't reach right now. What are the big things we should be looking at moving forward in evaluating these policies? What will you be looking at to evaluate whether they're working and whether they need to be tweaked one way or the other, whether it is because they're too permissive towards activities we want to prohibit or because they need to be more permissive towards the sorts of activities we want to encourage, like humanitarian assistance. Rachel, let me start with you.
- [47:02]
Rachel Alpert
So there are a number of issues, and we've discussed a bunch of them during our conversation today that will all be interesting to track and follow as we watch this play out. One will be, what's the international community doing? How are they adopting domestically these sanctions and their domestic laws and implementing them? Are they doing them consistent with the way the US has done it or differently? Another will be compliance. Are we seeing compliance challenges, compliance difficulties, or is this something that those who are operating in these environments are able to get a handle on? And then finally, what are the other barriers? And I think, as we just discussed, removing sanctions as a barrier to delivery of assistance helps to highlight where the other challenges are, since the delivery of assistance in these environments, it's a multifaceted thing with a lot of different operational challenges. And so providing a solution to the sanctions aspect of the equation allows us to start to chip away at some of these other challenges as well.
- [48:08]
Alex Zurdin
And just I completely agree. And just to add to that, I mean, I think there's one the important steps taken by the Treasury Department in assessing its sanctions posture, in conducting the 2021 review, I think should be extrapolated and applied across the whole of the US Government to work on these tools that Rachel was describing, whether that be commerce, whether that be state, but to really have a more comprehensive interagency picture of economic statecraft, of these tools for coercive economic measures so that they are more aligned. And then on the other side of it, and this was put forward by recent testimony by former Deputy National Security Advisor Duleep Singh. But we actually need for the US Government to put forward an affirmative economic statecraft doctrine. What does that look like? What are the tools of statecraft, both coercive as well as using incentives that the US Government has identified and that it commits to using. And that provides an important level of predictability to malign actors around the world, including terrorist groups that deny their people access to these critical humanitarian resources, but to message them, to explain to them how we're going to operate and execute on that. And then I think the last pillar, the third point, is improving the analysis of the efficacy and the effectiveness of sanctions. OFAC recently put out a job announcement for a chief economist. I think that's a step in the right direction. But this is a resource issue that Congress and the Executive need to work on to make sure that those working on these programs within treasury and across the interagency are properly resourced, properly recognized, and properly calibrated to change where needed so that these tools can be used to achieve the broader foreign policy and national security effects that they are intended to address.
- [49:57]
Scott R. Anderson
Well, on that note, we are out of time, so we'll have to leave the conversation there. Rachel Alpert, Alex Zurdin, thank you for joining us here today on the Lawfare Podcast.
- [50:05]
Rachel Alpert
Thank you for having me.
- [50:06]
Alex Zurdin
Thank you for having me.
- [50:10]
Scott R. Anderson
The Lawfare podcast is produced in cooperation with the Brookings Institution. Please be sure to rate and review us wherever you get your podcasts. And check out Lawfare's other podcasts including Rational Security, a casual, light hearted chat about national security news that I co host each week with my colleagues Quinta Jurassic and Alan Rosenstein. In addition, be sure to visit lawfair blog.com for our extensive written coverage of national security law and policy issues. And consider becoming a material supporter of lawfare@patreon.com Lawfare to gain access to an ad free version of this and other Lawfare podcasts, among other perks. This podcast was edited by Jen Patcha Howell and our audio engineer was Kara Shillin of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.
- [50:59]
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